Mitrovic v Silverman, 2013 NY Slip Op 01465 (1st Dept. 2013)
“While an expert affidavit cannot be speculative, there is no threshold requirement in an ordinary case, not involving a novel scientific theory, that a medical opinion regarding deviation be based upon medical literature, studies, or professional group rules in order for it to be considered. It can be based upon personal knowledge acquired through professional experience (see Diaz v New York Downtown Hosp., 99 NY2d 542, 545 ; see also Limmer v Rosenfeld, 92 AD3d 609, 609 [1st Dept 2012]). The peer review article upon which defendants rely did not form a basis for their expert’s opinion because it was only submitted in defendant Dr Silverman’s reply paper’s. Moreover, such literature only affects the weight given to an expert’s opinion and does not dictate an outcome as a matter of law (see Marsh v Smyth, 12 AD3d 307, 311-313 [1st Dept 2004], Saxe, J. concurring).
Now maybe I am stretching, but is reliance on “Nir” as the only reason to defeat a medical necessity denial now arbitrary and capricious?