Key Takeaway
New York court ruling on medical examination limits in no-fault cases - when defendants can require additional IMEs and plaintiff protections against bias.
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Abdelfattah v Trevicano,2022 NY Slip Op 02383 (2d Dept. 2021) If you’re dealing with a no-fault insurance defense matter, an experienced attorney can help protect your rights.
“The defendants moved, inter alia, to direct the plaintiff to comply with the July 2019 order by submitting to additional medical examinations by specialists of defense counsel’s choosing. The plaintiff opposed, contending that the defendants could not direct the plaintiff to submit to a medical examination by a second expert. In the order appealed from, dated December 16, 2019, the Supreme Court, inter alia, granted the defendants’ motion to the extent of directing the plaintiff to submit to a medical examination by Dr. Miller, who previously examined the plaintiff. The defendants appeal from so much of the order as required them to designate Dr. Miller as the doctor who would perform the additional examination.
CPLR 3121(a) provides that where the physical condition of a party is in controversy, “any party may serve notice on another party to submit to a physical … examination by a designated physician.” There is no restriction in CPLR 3121(a) limiting the number of medical examinations. However, a defendant seeking an additional medical examination must demonstrate the necessity for it (see Harris v Christian Church of Canarsie, Inc., 147 AD3d 818, 818). A plaintiff may challenge a defendant’s choice of an examining physician based upon a claim of bias against the plaintiff or his or her attorney by the designated examining physician or prejudice against the plaintiff if that examining physician is allowed to testify at trial (see Lewis v John, 87 AD3d 564, 565).
Here, the plaintiff does not dispute the need for an additional medical examination. However, the plaintiff has demonstrated that he would be prejudiced by permitting a second board-certified physician to examine the same part of his body and to produce a second defendants’ medical examination as to the same physical condition that was reported on by Dr. Miller before the spinal fusion, which would enable the defendants to have a second physician of the same specialty testify against the plaintiff for the same physical injury (see Vailes v Molloy College, 2019 NY Slip Op 33931, *3 ; Ocampo v City of New York, NYLJ 1202573727112 ).
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Moreover, the defendants have not demonstrated the necessity for permitting the additional medical examination to be performed by a physician other than Dr. Miller, a board-certified orthopedic surgeon. The plaintiff notified the defendants of his allegation that he needed spinal surgery in his bill of particulars dated October 12, 2017, which was served before the defendants chose Dr. Miller to conduct the first medical examination. The defendants did not provide any reason that it was necessary for a different physician to conduct the additional medical examination after the spinal surgery.
Since the plaintiff has demonstrated that under the circumstances presented here, permitting an additional orthopedic surgeon to examine and produce a second defendants’ medical examination report on the same body part previously examined by the defendants’ initially selected orthopedic surgeon, who could then testify at trial, would result in prejudice against him, the Supreme Court providently exercised its discretion in directing the plaintiff to submit to a medical examination by Dr. Miller, who previously examined the plaintiff.”
This has a direct application to PIP. The reasons being that it is often the case that PIP orthos testify in a BI trial. It therefore begs the question whether it is proper to have multiple othopedists perform an IME on an Assignor.
On a pure PIP side, the occurrence could happen where multiple exams become necessary, and should a carrier have the opportunity to show case the findings of two board certified ortho that lead to the conclusion further treatment is not warranted or that the EIP has reached their pre accident condition?
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- New York No-Fault Insurance Law
Legal Context
Why This Matters for Your Case
New York's no-fault insurance system, established under Insurance Law Article 51, is one of the most complex insurance frameworks in the country. Every motorist must carry Personal Injury Protection coverage that pays medical expenses and lost wages regardless of fault, up to $50,000 per person.
But insurers routinely deny valid claims using peer reviews, EUO scheduling tactics, fee schedule reductions, and coverage defenses. The Law Office of Jason Tenenbaum has handled over 100,000 no-fault cases since 2002 — from initial claim submissions through arbitration before the American Arbitration Association, trials in Civil Court and Supreme Court, and appeals to the Appellate Term and Appellate Division. Jason Tenenbaum is one of the few attorneys in the state who both writes his own appellate briefs and tries his own cases.
His 2,353+ published legal articles on no-fault practice are cited by attorneys throughout New York. Whether you are dealing with a medical necessity denial, an EUO no-show defense, a fee schedule dispute, or a coverage question, this article provides the kind of detailed case-law analysis that helps practitioners and claimants understand exactly where the law stands.
About This Topic
New York No-Fault Insurance Law
New York's no-fault insurance system requires every driver to carry Personal Injury Protection (PIP) coverage that pays medical expenses and lost wages regardless of who caused the accident. But insurers routinely deny, delay, and underpay valid claims — using peer reviews, IME no-shows, and fee schedule defenses to avoid paying providers and injured claimants. Attorney Jason Tenenbaum has litigated thousands of no-fault arbitrations and court cases since 2002.
271 published articles in No-Fault
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Disclaimer: This article is published by the Law Office of Jason Tenenbaum, P.C. for informational and educational purposes only. It does not constitute legal advice, and no attorney-client relationship is formed by reading this content. The legal principles discussed may not apply to your specific situation, and the law may have changed since this article was last updated.
New York law varies by jurisdiction — court decisions in one Appellate Division department may not be followed in another, and local court rules in Nassau County Supreme Court differ from those in Suffolk County Supreme Court, Kings County Civil Court, or Queens County Supreme Court. The Appellate Division, Second Department (which covers Long Island, Brooklyn, Queens, and Staten Island) and the Appellate Term (which hears appeals from lower courts) each have distinct procedural requirements and precedents that affect litigation strategy.
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