EBT granted

Court Reverses Denial of EBT Motion Against Radiology Provider

Examinations Before Trial (EBTs) serve as a crucial discovery tool in no-fault insurance litigation, allowing parties to gather testimony under oath before reaching trial. The recently decided case of Avalon Radiology, P.C. v Interboro Ins. Co. demonstrates the appellate courts’ willingness to enforce insurers’ rights to conduct these examinations, particularly when medical necessity defenses are at stake.

This case involved a radiology provider seeking payment from an insurance company, with the insurer defending on grounds of lack of medical necessity. When the trial court denied the insurer’s motion to compel an EBT, the appellate court reversed, highlighting the importance of the articulable need test for a provider EBT on a medical necessity case. The decision reinforces that providers cannot simply avoid examination when their medical judgments are challenged.

The stakes for missing EBT obligations can be severe - as we’ve seen in other cases where parties who miss an EBT deadline have their answer stricken and go directly to inquest.

Case Background

Avalon Radiology, P.C. v Interboro Ins. Co. arose from a no-fault insurance dispute where a radiology provider sought reimbursement for diagnostic imaging services. The insurance company denied the claim based on lack of medical necessity, then served the provider with a notice requesting an Examination Before Trial.

When the provider resisted appearing for the EBT, the insurer filed a cross-motion seeking multiple forms of relief: summary judgment dismissing the complaint, or alternatively, an order compelling the provider to appear for examination. The Civil Court denied both the plaintiff’s affirmative motion for summary judgment and the branches of defendant’s cross-motion seeking dismissal and the EBT order.

The insurance company appealed to the Appellate Term, challenging the trial court’s implicit denial of its request to compel the EBT. The key legal question on appeal was whether the insurer had demonstrated sufficient grounds to warrant compelling the radiology provider’s examination under CPLR 3101’s broad discovery provisions.

Jason Tenenbaum’s Analysis:

Avalon Radiology, P.C. v Interboro Ins. Co., 2017 NY Slip Op 51722(U)(App, Term 2d Dept. 2017)

“Insofar as is relevant to this appeal, upon denying plaintiff’s motion for summary judgment and the branch of defendant’s cross motion seeking summary judgment dismissing the complaint, the Civil Court implicitly denied the branch of defendant’s cross motion seeking, in [*2]the alternative, to compel plaintiff to appear for an EBT.

As defendant’s moving papers established that defendant had served plaintiff with a notice for an EBT, which examination was material and necessary to defendant’s lack of medical necessity defense (see Great Wall Acupuncture, P.C. v General Assur. Co., 21 Misc 3d 45, 47 ), the branch of defendant’s motion seeking to compel plaintiff to appear for an EBT should have been granted (see CPLR 3101 ).”

I think the reason an EBT was pursued on appeal was that the radiologist signed an affidavit of merit. It would have made for a fun 60 minute deposition.

Legal Significance

The Appellate Term’s reversal clarifies that CPLR 3101’s liberal discovery provisions extend fully to no-fault insurance litigation, particularly when medical necessity defenses are raised. The decision reinforces that healthcare providers cannot shield themselves from examination simply by submitting affidavits supporting their claims. When insurers challenge the medical necessity of services, they possess a statutory right to examine the provider under oath about treatment decisions, billing practices, and clinical judgments.

This ruling follows established precedent from Great Wall Acupuncture, P.C. v General Assur. Co., which articulated the foundational principle that EBT discovery is “material and necessary” to medical necessity defenses. The Appellate Term’s citation to Great Wall demonstrates continuing adherence to this standard across different types of medical providers, extending beyond acupuncturists to radiologists and other diagnostic service providers.

The decision also reflects judicial skepticism toward providers who resist EBT appearances while simultaneously seeking summary judgment in their favor. By submitting an affidavit of merit to support their payment claim, providers effectively place their medical judgments and clinical decision-making directly at issue, which naturally triggers the insurer’s discovery rights to examine those very judgments through deposition testimony.

Practical Implications

For no-fault plaintiffs and healthcare providers, this decision serves as a clear warning: resisting EBT requests while asserting claims for payment creates an untenable procedural position. When medical necessity is challenged, providers should anticipate that courts will compel their appearance for examination. Fighting such motions typically proves futile and may antagonize trial courts while wasting litigation resources on ultimately unsuccessful resistance.

Insurance defense attorneys can cite this decision when trial courts incorrectly deny EBT motions in medical necessity cases. The Appellate Term’s willingness to reverse on this issue signals that EBT rights in no-fault litigation enjoy strong appellate protection. Defense counsel should not hesitate to appeal adverse EBT rulings, as appellate courts recognize the critical importance of this discovery tool.

The case also highlights strategic considerations regarding affidavits of merit. When providers submit sworn statements supporting the medical necessity of their services, they essentially invite examination about those very assertions. Providers and their counsel should carefully weigh whether submitting such affidavits truly advances their position or merely provides additional ammunition for insurers to justify EBT requests.

Key Takeaway

The appellate court’s reversal emphasizes that when insurers raise medical necessity defenses and properly serve EBT notices, trial courts should grant motions to compel provider examinations. The decision reinforces that medical professionals cannot avoid scrutiny of their treatment decisions simply by providing affidavits, particularly when their clinical judgments are directly challenged in litigation.