OGC Opinion No. 04-02-24
The Office of General Counsel issued the following opinion on February 24, 2004, representing the position of the New York State Insurance Department.
Re: Disclosure of Expert Witness In No-Fault Arbitration
When an injured person eligible for No-Fault benefits has been denied payment of claims made on those benefits by an insurer and subsequently, the eligible person requests arbitration to resolve the disputed claims, must such person disclose to the insurer in advance of the hearing that the persons treating provider will be testifying in support of the disputed claims at the scheduled arbitration?
No. The treating physician would be testifying as to the factual basis of treatment provided to the eligible injured person. Only when either party at arbitration intends to call a third party, who has not had any participation with the health services performed, as an expert witness must such appearance by the expert be disclosed in advance to the other party prior to the scheduled arbitration, pursuant to No-Fault Regulation 68.
In the scenario described, an eligible injured person, who has applied for No-Fault benefits to his insurer and has had those claims denied, does not have in effect an assignment of benefits to his treating provider of health services at the time of a scheduled No-Fault arbitration. The attorney for the eligible person has declined to respond to an inquiry from the insurer as to whether the persons treating provider will appear to testify in support of the persons disputed claims at the scheduled arbitration.
Pursuant to N.Y. Comp. Codes R. & Regs. tit. 11, § 65-4 (o)(4), "If a party to the arbitration intends to introduce an expert witness at the hearing, the identity of the expert witness must be given to all parties at least seven calendar days prior to the hearing."
In the absence of an assignment of benefits from the eligible injured person to the treating physician, that person is seeking direct reimbursement from the No-Fault insurer for fees owed to the health provider for medically necessary services rendered. At arbitration, it is the eligible injured person and the insurer that are parties to the proceeding. For purposes of the regulation, the treating provider is not deemed to be an "expert" witness, as such provider has no status other than testifying as to the facts of treatment performed to the eligible person to support the medical necessity of the treatment in dispute.
This is consistent with an Appellate Division decision in Stark v. Semeran, 244 A.D.2d 894 (App. Div. 4th Dept. 1997). In that case, the plaintiff objected to the testimony of a doctor on behalf of the defense, since the defendants had failed to previously identify the doctor as an "expert witness" at trial who was expected to be called as a witness and had failed to provide the subject matter of the doctors testimony, in violation of the requirements of CPLR 3101 (d)(1)(I). However, since in this case the doctor to be called to testify by the defendants was the treating physician of the plaintiff, the court held that the doctor was not deemed to be an expert witness retained for litigation purposes as contemplated by the CPLR. Therefore, the court recognized a clear distinction between a treating doctor and one retained as an "expert" to give testimony. See also Nesselbush v. Lockport Energy Associates, 169 Misc. 2d, 742 (1996).
In the situation posed, the treating physician is not appearing as an expert witness on behalf of a party to the arbitration. Rather, he would be factually testifying as to the medical treatment provided to the eligible injured person. Therefore, the identity of the doctor who will be testifying need not be disclosed to the insurer at least seven calendar days prior to the scheduled arbitration.
For further information you may contact Supervising Attorney Lawrence M. Fuchsberg at the New York City Office.