EBT upheld

The Scope of Discovery in No-Fault Medical Necessity Disputes

Discovery rights in civil litigation derive from CPLR 3101, which permits parties to obtain disclosure of any matter “material and necessary” to the prosecution or defense of an action. This liberal discovery standard applies broadly across civil cases, including no-fault insurance disputes. However, questions frequently arise about what discovery tools are appropriate in specific contexts, particularly regarding examinations before trial (EBTs) of medical providers in cases where insurers deny claims based on lack of medical necessity.

In no-fault insurance litigation, providers typically sue as assignees of injured persons’ rights to first-party benefits. When insurers defend these suits by asserting that the services rendered lacked medical necessity, a fundamental question arises: can insurers take EBTs of the healthcare providers who rendered the services? Providers sometimes resist such depositions, arguing that their medical records speak for themselves or that their testimony is not material to the defense. However, courts have consistently recognized that medical necessity defenses often require testimony beyond what appears in written records.

The Appellate Term addressed this issue in three consolidated appeals involving Duke Acupuncture, P.C., Chiropractic Associates of Richmond Hill, P.C., and South Nassau Orthopedic Surgery & Sports Medicine, P.C. These decisions established clear precedent that EBTs of medical providers are material and necessary when insurers defend no-fault cases on medical necessity grounds, regardless of whether the insurer’s summary judgment motion was denied on that defense.

Case Background: Duke Acupuncture, P.C. and Related Cases

Duke Acupuncture, P.C. v Mercury Cas. Co., 2015 NY Slip Op 51701(U)(App. Term 2d Dept. 2015)

In Duke Acupuncture, defendant insurer denied plaintiff’s no-fault claims on the ground of lack of medical necessity and timely mailed the denial of claim forms. Defendant moved for summary judgment, submitting its own medical expert opinion that the services lacked medical necessity. Plaintiff opposed the motion with conflicting medical expert evidence, creating a triable issue of fact that led the court to deny defendant’s summary judgment motion.

Following this procedural victory for plaintiff, defendant moved to compel plaintiff to appear for an EBT. Plaintiff resisted, apparently taking the position that once summary judgment was denied, the case would proceed to trial on the papers without need for testimony. The Civil Court denied defendant’s motion to compel the EBT. Defendant appealed this denial, arguing that EBT testimony was material and necessary to its medical necessity defense.

The Appellate Term faced a straightforward question: does an insurer defending a no-fault case on medical necessity grounds have the right to depose the healthcare provider who rendered the disputed services? The answer turned on whether such testimony was “material and necessary” under CPLR 3101, considering that the parties had already submitted dueling medical expert opinions and the case was headed to trial.

Jason Tenenbaum’s Analysis:

“Defendant sufficiently established the timely mailing (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 ) of the denial of claim form at issue, which denied the claim on the ground of lack of medical necessity. However, the conflicting medical expert opinions proffered by the parties were sufficient to demonstrate the existence of a triable issue of fact as to whether there was a lack of medical necessity for the services at issue. Consequently, the branch of defendant’s motion seeking summary judgment dismissing the complaint was properly denied (see Zuckerman v City of New York, 49 NY2d 557 ).

The branch of defendant’s motion seeking, in the alternative, to compel plaintiff to appear for an EBT should have been granted (see CPLR 3101 ). As defendant is defending this action on the ground that the services rendered lacked medical necessity and defendant’s moving papers established that defendant had served plaintiff with a notice for an EBT, such an examination was material and necessary to defendant’s defense (see also Great Wall Acupuncture, P.C. v General Assur. Co., 21 Misc 3d 45, 47 ).”

Chiropractic Assoc. of Richmond Hill, P.C. v Mercury Cas. Co.,2015 NY Slip Op 51700(U)(App. Term 2d Dept. 2015)

South Nassau Orthopedic Surgery & Sports Medicine, P.C. v Mercury Cas. Co., 2015 NY Slip Op 51702(U)(App. Term 2d Dept. 2015)

Legal Significance: EBTs and Medical Necessity Defenses

The Appellate Term’s decision establishes that EBTs of medical providers are categorically material and necessary when insurers defend no-fault cases on medical necessity grounds. This holding reflects several important principles about the nature of medical necessity disputes and the scope of discovery in civil litigation.

First, the court recognized that medical necessity questions cannot be resolved solely through competing expert affidavits. While expert opinions establish whether triable issues of fact exist for summary judgment purposes, trials require live testimony that allows fact-finders to assess credibility, probe the bases of medical opinions, and explore nuances not captured in written affidavits. The treating provider’s testimony becomes crucial because that provider actually examined the patient, rendered the services, and made real-time decisions about treatment necessity.

Second, the decision rejects any notion that providers can shield themselves from depositions by creating paper issues of fact through expert affidavits. If providers could defeat EBT requests simply by submitting opposing expert opinions, they could effectively immunize themselves from discovery while forcing insurers to proceed to trial. This would create an asymmetry where insurers must defend medical necessity challenges but cannot obtain testimony from the very persons whose judgment is at issue.

Third, the court’s analysis does not condition EBT availability on the strength of the insurer’s medical necessity defense or the likelihood of success at trial. The materiality and necessity of EBT testimony flows from the nature of the defense itself—medical necessity—rather than from the quality of evidence supporting that defense. Once an insurer properly raises medical necessity as a defense, it becomes entitled to depose providers regardless of whether the defense appears strong or weak on the papers.

The decision also implicitly addresses the burden that EBTs place on medical providers. While providers may view depositions as costly and time-consuming obligations that divert resources from patient care, courts treat these concerns as insufficient to override insurers’ discovery rights. The material and necessary standard focuses on the relevance of testimony to the litigation, not on the burden such testimony imposes on the deponent.

Practical Implications for No-Fault Litigation

For insurers defending no-fault cases on medical necessity grounds, this decision provides clear authority to depose treating providers. Insurers should serve EBT notices early in litigation, before summary judgment motions are decided. If providers resist depositions, insurers can move to compel, citing Duke Acupuncture and its companion cases for the proposition that EBTs are categorically material and necessary in medical necessity cases.

For medical providers, the decision eliminates any strategy of avoiding depositions by creating paper issues of fact. Providers must prepare for EBTs whenever they litigate no-fault cases involving medical necessity disputes. This preparation should include reviewing treatment files, refreshing recollection about the specific patient’s condition and treatment, and consulting with counsel about likely deposition topics. Providers should anticipate detailed questioning about their clinical decision-making, the bases for their treatment plans, and their responses to peer review or other challenges to medical necessity.

The decision also affects case evaluation and settlement discussions. Providers facing medical necessity defenses must factor in the time and expense of appearing for depositions when assessing whether to pursue litigation or accept settlement offers. The prospect of depositions—and potentially unfavorable testimony at trial—may influence providers’ willingness to litigate marginal claims where medical necessity is genuinely questionable. Conversely, insurers gain leverage in settlement negotiations by threatening to depose providers whose testimony might undermine their own claims.

Finally, the case underscores the distinction between summary judgment standards and trial preparation. Defeating a summary judgment motion by submitting a conflicting expert affidavit does not end discovery or eliminate the need for trial testimony. Providers who successfully oppose summary judgment remain subject to discovery, including EBTs, because the case must still be tried. Understanding this distinction helps both sides develop appropriate litigation strategies that account for both motion practice and trial preparation phases.

Related Articles

• NY EBT Venue Rules: When Courts Grant Undue Hardship Exceptions for Depositions
• The failure of an assignor to appear for an EBT is not a basis for a 3126 sanction against the assignee
• A plain disaster
• Discovery Violations and Court Sanctions: When New York Courts Strike Back
• New York No-Fault Insurance Law