In Arnica Acupuncture PC v Interboard Ins. Co., 2016 NY Slip Op 01434, Appellate Division states that a medical provider, had to have examined the patient and had to have specifically rebutted findings of defendant’s medical expert to form the basis of an affidavit that would raise a triable issue of fact. The Court specifically said:
Contrary to the Appellate Term’s finding, plaintiff’s supervising acupuncturist’s affidavit failed to raise a triable issue since it was not based on an examination of the patient, nor did it address or rebut the findings of objective medical tests detailed in the sworn report of defendant’s medical expert. The insured’s subjective complaints of pain cannot overcome objective medical tests (see Rummel G. Mendoza, D.C., P.C. v Chubb Indem. Ins. Co., 47 Misc 3d 156[A], 2015 NY Slip Op 50900[U] [App Term, 1st Dept 2015]; see generally Munoz v Hollingsworth, 18 AD3d 278 [1st Dept 2005]).
I have one obvious question; does this mean Peer Reviews, in terms of having to be based on an “examination” of the patient, going to be held ti the same standard?
The case can be found here: http://www.nycourts.gov/reporter/3dseries/2016/2016_01434.htm