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.

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.

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.