The articulable need test for a provider EBT on a medical necessity caseApril 11, 2014

Arnica Acupuncture P.C. v Interboro Ins. Co., 2014 NY Slip Op 50554(U)(App. Term 1st Dept. 2014)

“However, we find no abuse of discretion in the denial of defendant’s motion to compel the deposition of plaintiff’s treating provider on this record, which contains an affidavit from the provider explaining the rationale for the underlying acupuncture services, and where defendant failed to set forth an “articulable need” for the provider’s deposition ”

This case lies on the extreme end of the Ralph Medical spectrum.  Plaintiff did not comply with “interrogatories”, offer an operative report or comply with disclosure in any shape, fashion or form.  Rather, the court has held that an affidavit of merit will suffice for a deposition.  People have joked, on and off, that the CPLR does not apply to no-fault.  This case is further proof that there is truth to that maxim.

4 Responses

  1. Naive Plaintiff Attorney says:

    Why do you need an EBT of the provider when the only issue for trial will be what’s in the IME report?

  2. Alan Klaus says:

    Ridiculous decision even though it helps us Plaintiff attorneys

  3. Skeptical Plaintiff Attorney says:

    Why do you need an EBT of the provider when the only issue for trial will be what’s in the IME report?

    1) My client told me to.
    2) The CPLR says I can.
    3) We have reason to believe the services were not really performed – If you only knew what we know?
    4) The claimant EUO transcript says that the provider had blue eyes, and three of them. We need to verify that.
    5) Billing!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

  4. The Hater says:

    The Law — CPLR; New York City Civil Court Act; case law and commentary — is very clear: when the amount at issue is small in a litigation discovery devices can be severely limited.

    Is it not so that even in negligence where the amount at stake could be in the tens of millions a party cannot receive responses to interrogatory demands and take an EBT.

    Santa Klaus check the law before you call it a ridiculous decision and use a little brain power. Did you ever hear an attorney from State Farm say that decisions based upon newspaper clipping Exhibits were bad decisions.

    The Plaintiff’s bar does not need you. Go work for the Defendants.

    And why is it that providers still have to prove mailing when the insurance company received the bill in a timely fashion. Why are insurance companies allowed to avoid payment to their rate paying customers based upon any technicality. That is a violation of certain criminal laws including the insurance law.

    Oh but that miscreant insurance company plant Wrynn. The hideous man that would defraud a thousand widows and Mother Theresa — he’ll never enforce the law on the Nazis that butter his bread.

    Speaking of butter … or a buttered head

    As for hydro-frack Cuomo he’s the best governor that companies can buy. Hey Andrew I want to use your greasy head to lube my car engine.

    My God if the citizens ever knew what went on in Court Houses they’d burn em down and hang the judges and lawyers that they caught therein.

    The Hater