EUO no show – discovery is waived when objection not lodged

Professional Health Imaging, P.C. v State Farm Mut. Auto. Ins. Co., 2016 NY Slip Op 51026(U)(App. Term 2d Dept. 2016)

“Plaintiff failed to allege, much less prove, that it had responded in any way to the EUO requests at issue. Thus, it cannot raise any objection to the reasonableness of those requests in litigation (see e.g. T & J Chiropractic, P.C., 47 Misc 3d 130[A], 2015 NY Slip Op 50406[U]; Metro Health Prods., Inc. v State Farm Mut. Auto. Ins. Co., 47 Misc 3d 127[A], 2015 NY Slip Op 50402[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]), and any discovery relevant to the reasonableness of the EUO requests was not necessary for plaintiff to oppose defendant’s motion (see CPLR 3212 [f]; Interboro Ins. Co. v Clennon, 113 AD3d 596 [2014]; Palafox PT, P.C. v State Farm Mut. Auto. Ins. Co., 49 Misc 3d 144[A], 2015 NY Slip Op 51653[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; T & J Chiropractic, P.C., 47 Misc 3d 130[A], 2015 NY Slip Op 50406[U]; Metro Health Prods., Inc., 47 Misc 3d 127[A], 2015 NY Slip Op 50402[U]). Consequently, contrary to plaintiff’s further argument on appeal, there was no outstanding discovery warranting the denial of defendant’s motion pursuant to [*2]CPLR 3212 (f).”

Mutual rescheduling in between two no shows – valid

City Care Acupuncture, P.C. v Ameriprise Ins. Co., 2016 NY Slip Op 51036(U)(App. Term 2d Dept. 2016)

“[p]laintiffs’ assignor had failed to appear for an examination under oath (EUO) which had been duly scheduled for June 1, 2012; that although plaintiffs’ assignor had appeared for an EUO on June 15, 2012, there was a mutual agreement to reschedule that EUO; and that plaintiffs’ assignor had failed to appear on July 9, 2012, the date of the rescheduled EUO. Plaintiffs cross-moved for summary judgment. By order entered October 20, 2014, the Civil Court granted defendant’s motion and denied plaintiffs’ cross motion.

“[O]n appeal, plaintiffs’ arguments are limited to what occurred when plaintiffs’ assignor appeared for the second scheduled EUO on June 15, 2012. Contrary to plaintiffs’ contention, defendant’s moving papers establish that, although plaintiffs’ assignor appeared for this EUO, there was a mutual agreement to reschedule it, at the assignor’s request, to enable plaintiffs’ assignor’s counsel to attend the EUO (cf. DVS Chiropractic, P.C. v Interboro Ins. Co., 36 Misc 3d 138[A], 2012 NY Slip Op 51443[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]).”

This one makes sense.  No show for the first.  Shows for second but reschedules.  Misses rescheduled date.  Case tossed.

But I cannot help but but quote this line: “On appeal, plaintiffs’ arguments are limited to what occurred when plaintiffs’ assignor appeared for the second scheduled EUO on June 15...”  I cannot help but think if the “partner affirmation” was addressed as a reason for denying summary judgment, the result would be different.  OOh……  Query: Is it malpractice for a plaintiff not to address the partner affirmation as a basis for denial of defendant’s application for summary judgment?

The EUO bust statement as a business record

Charles Deng Acupuncture, P.C. v Titan Ins. Co., 2016 NY Slip Op 26211 (Civ. Ct. Kings Co. 2016)

The Court here  stated the following:

(1) “The only remaining issue before the Court is whether or not the EUO transcripts allegedly generated at the scheduled EUOs are business records which may be used to show that the respective providers failed to appear at their scheduled EUOs, and the weight to give these records if they are admissible.”

(2) “There is no question that the certified EUO transcripts can be used in a motion for summary judgment (see MML Med. Care, P.C. v Praetorian Ins. Co. 2014 NY Slip Op 51792[U]; Active Chiropractic, P.C. v Praetorian Ins. Co. 2014 NY Slip Op 50634[U], Active Chiropractic, P.C. v Praetorian Ins. Co. 2014 NY Slip OP 50634[U]), but there appears to be no cases on “all fours” concerning the use of such EUO transcripts at trial.”

I would submit that the case  Allstate Ins. Co. v. Pierre, 123 A.D.3d 618, 618 (1st Dept. 2014)(“Plaintiff also established that the statements on the record were business records”) would have easily disposed of the issue in this case   What is flustering to me is that the Court never cites to Pierre and it looks like Defendant failed to cite to the case.

Two more comments here that I want to share.  This case underscores why it is worth the extra $100 (per no show) to obtain a bust statement.  First, you do not have “the partner affirmation”, which the Appellate Term has continuously rejected.  One wonders if that affirmation is tantamount to legal malpractice at this point.  Second, you have a documentary basis for asserting the fact of the no-show.  If the case goes to trial, you have evidence that can prove the defense.  Counsel here for defendant properly represented their client in this regard.

A final confession here.  For many years, I was not sold on the bust statement.  I have also proven that a well worded affidavit can meet even the demanding Appellate Term Second Department standard for a no-show.  But those “partner affidavit” cases admittedly have scared me and many others out there.  A bust statement is just a better practice because of its durability and contemporaneity of the event being recorded.    The old adage comes to play:  “fool me once, shame on you.  fool me twice, shame on me.”

IME/EUO no-show substantiated (First Department).

Urban Well Acupuncture, P.C. v Nationwide Gen. Ins. Co., 2016 NY Slip Op 50906(U)(App. Term 1st Dept. 2016)

“Contrary to plaintiff’s contention, defendant submitted competent evidence of the assignor’s nonappearance in the form of the sworn affidavits of the scheduled examining chiropractor/acupuncturist and an employee of defendant’s third-party IME scheduler, setting forth sufficient facts to demonstrate the affiants’ personal knowledge of the assignor’s repeated failures to appear for the IMEs and the office practices and policies when an assignor fails to appear for a scheduled IME”

Metro 8 Med. Equip., Inc. v Esurance Ins. Co, 2016 NY Slip Op 50904(U)(App. Term 1st Dept. 2016)

Contrary to plaintiff’s contention, defendant submitted competent evidence of the assignor’s nonappearance in the form of the affirmation of defendant’s attorney who was assigned to the file and the affidavit of defendant’s employee who was responsible for the scheduling of the EUOs, setting forth sufficient facts to demonstrate the affiants’ personal knowledge of the assignor’s repeated failures to appear for the EUOs and the office practices and policies when an assignor fails to appear for a scheduled IME (sic)”

EUO sustained – failure to challenge EUO requests is fatal to provider’s position

Vladenn Med. Supply Corp. v State Farm Mut. Auto. Ins. Co., 2016 NY Slip Op 50928(U)(App. Term 2d Dept. 2016)

“With respect to plaintiff’s contention that defendant failed to demonstrate justification for its EUO requests, in a similar case involving the failure of a provider’s assignor to appear for EUOs, the Appellate Division, Second Department, has held that, to establish its prima facie entitlement to summary judgment dismissing the complaint on the ground that a provider’s assignor failed to appear for an EUO, an insurer need only establish “as a matter of law that it twice duly demanded an [EUO] from the [provider’s] assignor, who had allegedly been injured in a motor vehicle accident, that the assignor twice failed to appear, and that the [insurer] issued a [*2]timely denial of the claims arising from the [provider’s] treatment of the assignor” (Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2014]). A review of the record in Interboro Ins. Co. v Clennon reveals that, in that case, the provider argued, as does plaintiff herein, that the insurer’s motion should have been denied pursuant to CPLR 3212 (f), as the provider had not received discovery regarding the reasonableness of defendant’s EUO requests, and that, even if there had been a failure to appear for two duly scheduled EUOs, the insurer had to show that the failure to appear constituted willful obstruction of the insurer’s investigation. In finding for the insurer, the Appellate Division, Second Department, stated the following:

“the [providers] failed to establish that summary judgment was premature in light of outstanding discovery. A party who contends that a summary judgment motion is premature is required to demonstrate that discovery might lead to relevant evidence or [that] the facts essential to justify opposition to the motion were exclusively within the knowledge and control of the movant’ (Cajas-Romero v Ward, 106 AD3d 850, 852 [2013]; see CPLR 3212 [f]). Here, in support of their contention that the [insurer’s] motion was premature, the [providers] did not establish what information they hoped to discover that would demonstrate the existence of a triable issue of fact” (113 AD3d at 597).

Similarly, in the instant case, plaintiff “did not establish what information [it] hoped to discover that would demonstrate the existence of a triable issue of fact” (id.; cf. American Tr. Ins. Co. v Jaga Med. Servs., P.C., 128 AD3d 441 [2015]).”

I am responsible for Clennon and Jaga.  Thank you, you’re welcome.  I need to find a case to appeal so that Jaga reads more like Clennon.

Prestigious EUO firm seems to have partners who lack personal knowledge

IMA Acupuncture, P.C. v Allstate Ins. Co., 2016 NY Slip Op 50926(U)(App. Term 2d Dept. 2016)

Contrary to defendant’s contention, the affirmation submitted in support of defendant’s cross motion by a partner in the law firm retained by defendant to conduct EUOs of plaintiff was not made on personal knowledge and, therefore, defendant failed to establish, as a matter of law, its entitlement to summary judgment dismissing the complaint

Alleviation Med. Servs., P.C. v Hertz Co., 2016 NY Slip Op 50909(U)(App. Term 2d Dept. 2016)

Contrary to defendant’s contention, the affirmation by a partner in the law firm retained by defendant to conduct examinations under oath (EUOs) of plaintiff failed to establish, as a matter of law, defendant’s entitlement to summary judgment dismissing the complaint, as defendant’s cross-moving papers did not contain proof by someone with personal knowledge of the nonappearance of plaintiff for the EUOs in question

New Beginnings Chiropractic, P.C. v Allstate Ins. Co., 2016 NY Slip Op 50916(U)(App. Term 2d Dept. 2016)

“Contrary to defendant’s contention, the initial affirmation submitted in support of defendant’s cross motion by a partner in the law firm retained by defendant to conduct examinations under oath (EUOs) of plaintiff’s assignor was not made on personal knowledge and, therefore, defendant failed to establish, as a matter of law, its entitlement to summary judgment dismissing the complaint”

Maybe instead of speaking at NICB seminars (I have been at a few) and broadcasting their prowess at stopping fee splitting and self referrals (see New Way v. Allstate), this firm should have a better organizational process in mailing EUO letters and recording no-shows.  I have trouble fathoming why any insurance company would want to give business to this entity when they cannot substantiate their work product.  I have to imagine Civil Court judges and arbitrators must say “this firm”, oh they cannot prove the no show.  That is what I think, and seeing who is representing some of these carriers nowadays (these are 2013 decisions that are being reversed), clients see things the same way as me.

EUO no show – what’s the reason?

Avalon Radiology, PC. v Ameriprise Ins. Co., 2016 NY Slip Op 26182 (Dis. Ct. Suffolk Co. 2016)

“Avalon responded to the first EUO request with a letter dated April 3, 2014, requesting the good faith, objective reason for defendant’s request for an EUO pertaining to Avalon’s incorporation and licensure, as well as the basis for suspecting it had engaged in fraudulent behavior (Exhibit K). In response to Avalon’s letter of April 3, 2014, defendant sent a second letter dated April 14, 2014, stating that it was not required to provide the specific objective justification for its EUO request and rescheduling the EUO for May 1, 2014 (Exhibit L), as well as a third letter dated April 18, 2014, also setting forth the May 1, 2014 EUO date (Exhibit H). The claims were denied following Avalon’s failure to appear for the May 1, 2014 EUO (Exhibits R, S and T).”

“The insurer’s response in this case to the effect that it was not obligated to do so is plainly wrong. The insurer clearly had an obligation to comply with No-Fault regulation 65-3.5(e)and supply the requesting party, in this case the provider, with the “specific objective justification supporting the use of such examination.” The regulations do not allow the insurer to use an EUO as a fishing expedition. There must be a specific objective reason for the request. See American Transit v Jaga Medical Services, P.C., 128 AD3d 441 (1st Dep’t 2015); American Transit v Curry, 45 Misc 3d 171 (Sup.Ct. NY Co. 2013). If the Court were to conclude otherwise, the cited language of the applicable regulation would be rendered meaningless.”

I have to agree with the District Court on this one.  To dictate letters to providers demanding a provider’s appearances at EUOs without giving a reason when asked to provide a reason is improper.  That is plain and simple.  When taken to the mat as to why an EUO is necessary, the carrier must respond.  The Court got this one right.  Hopefully EUO counsel has learned from their mistakes.

 

Allstate EUO no-show cases

New Quality Med., P.C. v Allstate Ins. Co., 2016 NY Slip Op 50871(U)(App. Term 2d Dept. 2016)

Defendant’s contention that its cross motion for summary judgment should have been granted due to plaintiff’s failure to appear for duly scheduled EUOs lacks merit, as the Civil Court correctly found that defendant had failed to submit proof by someone with personal knowledge of the nonappearance of plaintiff for the EUOs in question (see Bright Med. Supply Co. v IDS Prop. & Cas. Ins. Co., 40 Misc 3d 130[A], 2013 NY Slip Op 51123[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; Alrof, Inc. v Safeco Natl. Ins. Co., 39 Misc 3d 130[A], 2013 NY Slip Op 50458[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]). Since defendant failed to raise a triable issue of fact as to whether it had timely denied plaintiff’s claims (see 11 NYCRR 65-3.8 [a]; Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009]), defendant’s contention that its papers were sufficient, at least, to raise a triable issue of fact as to whether plaintiff had failed to appear for the scheduled EUOs is irrelevant.

I have heard about the split in the courts regarding the Allstate mailing affidavit.  Does this represent that?

 

 

EUO no show not substantiated

Vladenn Med. Supply, Corp. v American Commerce Ins. Co., 2016 NY Slip Op 50775(U)(App. Term 1st Dept. 2016)

“In this regard, we note that while the affirmation of defendant’s attorney described the office procedures for contacting a claimant 48 hours prior to the scheduled EUO to confirm the appearance, it failed to demonstrate personal knowledge of the office procedures when a claimant failed to appear for the EUOs on the scheduled dates (see American Tr. Ins. Co. v Lucas, 111 AD3d 423 [2013]). Nor did the affiant state that he was the attorney assigned to conduct the EUOs,”

I have never seen a lawfirm have so many issues proving no-shows of the EUOs THEY scheduled.  It is somewhere between bizarre, embarrassing and perhaps a world where fact is scarier than faction.

Problems in the Progressive affidavits (again)

Progressive Cas. Ins. Co. v Metro Psychological Servs., P.C., 2016 NY Slip Op 03485 (2d Dept. 2016)

Mass production is great when your systems properly account for all variable.  In this case, that was not done.

“As the defendant correctly contends, the plaintiffs failed to establish, prima facie, that they timely and properly mailed the EUO letters to the defendant. The affirmation of the plaintiffs’ counsel contained conclusory allegations regarding his office practice and procedure, and failed to establish that the practice and procedure was designed to ensure that the EUO letters were addressed to the proper party and properly mailed”

It is amazing that a medical provider attorney can tell their client not to show up for the EUO since carrier’s counsel cannot prove that it mailed its scheduling letters.  And then we have the denial issue which I think Progressive Cas. Ins. Co. v Infinite Ortho Prods., Inc., 127 AD3d 1050, 1051-1052 made insurmountable to that carrier.  smh.