Judge Katherine Levine
The court opined if a doctor, other than the original one who prepared a peer review report, may testify as an expert witness when the report, and underlying medical records relied on were not stipulated into evidence. Also, if the doctor was permitted to testify, could the records be admitted into evidence. It answered in the affirmative noting an expert may testify even if he did not personally undertake the review as his testimony regarding lack of medical testimony was subject to cross-examination at trial. The court concluded the admissibility of medical records prepared by medical providers, “applied with equal force to both the original and peer doctors.” It stated the purpose of the underlying records was to form a hypothetical basis on which a reviewer could express an opinion, and the insurer had no obligation to admit the records for the truth of the matter asserted, it was irrelevant if the original reviewer, or another doctor looked at the records to form an opinion as neither physician had actual knowledge of the reliability of the records, and any inconsistencies could be examined through cross-examination of either doctor. Thus, the case may proceed to trial, and insurer may prove its defense of lack of medical testimony through testimony of the non-original peer doctor.
