Ime no show loses on lack of personal knowledge allegatiob

Sutphin Complete Med. Care v Hereford Ins. Co., 2016 NY Slip Op 50763(U)(App. Term 1st Dept. 2016)

“the record raises triable issues as to whether the assignor failed to appear for the scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]; Village Med. Supply, Inc. v Travelers Prop. Cas. Co. of Am., 51 Misc 3d 126[A], 2016 NY Slip Op 50339[U] [App Term, 1st Dept 2016]; Metro 8 Med. Equip., Inc. v ELRAC, Inc., 50 Misc 3d 140[A], 2016 NY Slip Op 50174[U] [App Term, 1st Dept 2016]).”

The triable issue of facts mirror what we saw starting in the Westmed v. State Farm case: how can somebody aver to an act performed 12 months ago without establishing a foundation for the fact?  This Court seems to be running with the line of cases unique to this court.

Affidavit issues once again invade Hertz’ motion practice

Alleviation Med. Servs., P.C. v Hertz Co., 2016 NY Slip Op 50399(U)(App. Term 2d Dept. 2016)

Yesterday, we read about the partner who could not assert personal knowledge of the EUO no show in their affidavit.  Today, we read about the healthcare practitioner whose affidavit was unpersuasive.

“Plaintiff correctly argues that defendant’s cross motion should have been denied. In support of its claim that plaintiff’s assignor had failed to appear for independent medical examinations (IMEs), defendant submitted an affirmation from the doctor who was to perform the orthopedic IMEs and an affidavit from the chiropractor who was to perform the chiropractic and acupuncture IMEs. The doctor and the chiropractor each failed to demonstrate by personal knowledge (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]), or by any other appropriate means (see e.g. Quality Psychological Servs., P.C. v Interboro Mut. Indem. Ins. Co., 36 Misc 3d 146[A], 2012 NY Slip Op 51628[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]), the nonappearance of plaintiff’s assignor for the IMEs”

The acupuncture was medically necessary and then some

Friedman v Allstate Ins. Co., 2016 NY Slip Op 50390(U)(App. Term 2d Dept. 2016)

(1) “Defendant’s expert medical witness, Dr. Chiu, who had performed an independent medical examination (IME) of plaintiff’s assignor on July 17, 2007, testified that, at the time of the IME, the assignor’s injuries had resolved and that there was no further need for acupuncture treatment. Dr. Friedman, who had commenced treatment of the assignor in June 2007, testified that he was of the opinion that the assignor’s injuries had not resolved at the time of the IME and that further acupuncture treatment was necessary. He had examined and treated the assignor after the IME had been conducted and had concluded that the assignor’s condition was sometimes better and sometimes worse, but that the assignor still often suffered from pain arising from his injuries. It was his opinion that the assignor’s injuries were caused by the accident, but that the injuries were exacerbated by the nature of his job as a parking valet, which “impeded . . . the progress of the treatment.”

  • On these facts, the trial court and the appellate court found the acupuncture services were medically necessary.

(2) It is undisputed that defendant denied plaintiff’s claims solely on the basis of Dr. Chui’s IME, which concluded that the services rendered were not medically necessary, and not on the basis of the assignor’s possible eligibility for workers’ compensation benefits, which is a defense subject to preclusion (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045, 1046 [2009]). Since defendant did not deny plaintiff’s claims based upon the assignor’s possible eligibility for workers’ compensation benefits, defendant is precluded from raising that defense.”

  • Not sure where Allstate was going here.  I really do not get it.

(3) Conclusion: “With respect to defendant’s contention that it demonstrated at trial that the acupuncture services in question lacked medical necessity, we find that, after defendant made its showing that the services in question were not medically necessary, plaintiff met its burden of demonstrating, by a preponderance of the credible evidence, that the services at issue were, in fact, medically necessary

  • Affirmed with costs,



Do you really believe verification was complied with?

Vladenn Med. Supply Corp. v Travelers Ins. Co., 2016 NY Slip Op 50381(U)(App. Term 2d Dept. 2016)

“However, in opposition to the cross motion, plaintiff submitted an affidavit from plaintiff’s employee, which affidavit was sufficient to give rise to a presumption that the requested verification had been mailed to, and received by, defendant (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). In light of the foregoing, there is a triable issue of fact as to whether this action is premature”

Would this be the famous generic Rybak compliance affidavit?


The conclusory affidavit?

Compas Med., P.C. v New York Cent. Mut. Fire Ins. Co., 2016 NY Slip Op 50376(U)(App. Term 2d Dept. 2016)

“While defendant submitted properly sworn statements by the chiropractor and doctor who were scheduled to perform the IMEs, neither health care professional demonstrated personal knowledge of the nonappearance of plaintiff’s assignor for the examinations, and, therefore, defendant failed to establish its entitlement to judgment as a matter of law dismissing any causes of action on this ground”‘

(The court cited to Alrof and Bright Supply)

We saw the Appellate Term First Department case holding that a 12 month gap between IME and affidavit required a showing in the affidavit as to the basis of personal knowledge.  Having not seen the affidavit, I cannot opine on what the deficiency is.

Tolling for an IME or EUO

PR Med., P.C. v Praetorian Ins. Co., 2016 NY Slip Op 50338(U)(App. Term 1st Dept. 2016)

(1) Prima facie case: “Turning to the merits, plaintiff established prima facie that its no-fault claims in the amount of $2,005.25 were overdue, since they were not “denied or paid” within the prescribed 30-day period”

(2)”Contrary to Civil Court’s determination, defendant’s letter stating, in essence, that payment was delayed pending independent medical examinations (IMEs) of plaintiff’s assignor did not serve to toll the 30-day statutory period (id.). Nor has defendant otherwise raised a triable issue as to whether the 30-day period was tolled by verification requests that preceded its receipt of the underlying claims”

If you are trying to decipher this one, I think I might have the answer here.  In order to toll the time to pay or deny when a bill is delayed for an IME or EUO, the carrier besides putting in the bill delay must also put in the submissions the EUO or IME scheduling letters.  That was not done here.  For may of us, just keep an eye on this – I just instructed my office to keep an eye on this subtle issue.  It has happened to all of us at some point.

Proof of the no show

Village Med. Supply, Inc. v Travelers Prop. Cas. Co. of Am., 2016 NY Slip Op 50339(U)(App. Term 1st Dept. 2016)

“The affidavits of defendant’s IME doctors lacked probative value, since they failed to state the basis of their recollection, some 12 months later, that the assignor did not appear on the scheduled IME dates”

This is interesting and asks a few questions.  First: what is the tempral cut off when the affidavit has to say more than: “I was there and (s)he did not attend tee IME?”  Second: I am assuming there has to be a minimal recitation of business practice to prove the no show?  The rules with no-shows, both procedurally and substantively keep changing.

The proof of no-show

Metro 8 Med. Equip., Inc. v ELRAC, Inc., 2016 NY Slip Op 50174(U)(App. Term 1st Dept. 2016)

“The affidavit of defendant’s chiropractor/acupuncturist, who affirmatively stated that she does not maintain records of a claimant’s nonappearances at IMEs scheduled with her office, lacked probative value, since it failed to state the basis of her recollection, some 18 months later, that the assignor did not appear on the scheduled IME dates (see Westmed Physician, P.C. v State Farm Auto Ins. Co., 17 Misc 3d 133[A], 2007 NY Slip Op 52113[U] [App Term, 1st Dept 2007])”

The test for “basis of knowledge” requires a statement that I have reviewed my records and Assignor did not appear.   Other verbiage is necessary, but a review of records is required.  The providers advocate for production of these records on motion, but we are not there yet.

The better solution to avoid all of this is for the insurance carrier to require contemporaneous affidavits of no-shows.  This solves the above issue.

Records of the treating physician

Uribe v Jimenez, 2015 NY Slip Op 08726 (2d Dept. 2015)

“In support of his motion, the defendant submitted the plaintiff’s medical records from Elmhurst Hospital, which indicated that a chest X ray did not reveal any rib fractures (see Estaba v Quow, 74 AD3d 734, 734-735). While these medical records were not certified, the defendant could rely on them in order to demonstrate a lack of serious injury, as they were the records of the plaintiff’s treating physicians

Nothing new to report but the Court held as a matter of law that defendants could rely on the records of the plaintiff’s treating physicians.  It is the line plaintiff’s treating physicians that is important to note.

Dr. Katz and Justice Hart

Bermejo v New York City Health & Hosps. Corp., 2015 NY Slip Op 08374 (2d Dept. 2015)

Once the genie is out of the bottle, it can never be put back in.  Whether the IME was 3 minutes, 5 minutes or 20 minutes, it still opened up a can of worms about the IME process.   I am going to leave out Judge Hart’s threats to have Dr. Katz prosecuted – but read the case.  It is surreeal.

By the way – I have no opinion in this case that I am going to share you.

Here is the pertinent testimony:

Dr. Katz

“Q: Well, how long do you have a custom and practice when you’re doing a shoulder exam as to how long you generally take?

“A: I don’t really have, you know, an allocated time.

“Q: Well, would you believe in at least your experience that it would be more or less than 15 minutes?

“A: Quite frankly, I don’t know.

“THE COURT: Excuse me, Doctor, I cannot accept an I don’t know. You have been doing this for awhile. I will have to insist on what your custom and practice would be as to what type of, the length of an exam of this type.

“THE WITNESS: I think in the range of between ten and 20 minutes would be appropriate.”

With regard to the second IME, Ms. Ramirez testified as follows:

Ms. Ramirez

“Q: And how long did that exam take?

“A: The actual exam was three minutes. The total evaluation was like five.

“Q: And how do you know that it was three minutes?

“A: I pretty much timed it.

“Q: And how did you time it?

“A: With my phone.”


1) The tape was not disclosed prior to trial. 2) 10-20 minutes was not 5. 3) IMEs should not be taped. 4) Mistrial now occurred. 5) Defendant wants a new IME

Principles of law

(1) “There is no restriction in CPLR 3121 limiting the number of examinations to which a party may be subjected, and a subsequent examination is permissible provided the party seeking the examination demonstrates the necessity for it (see Rinaldi v Evenflo Co., Inc., 62 AD3d 856, 856; Huggins v New York City Tr. Auth., 225 AD2d 732, 733; Young v Kalow, 214 AD2d 559, 559). Furthermore, after a note of issue has been filed, as in this case, a defendant must demonstrate that unusual and unanticipated circumstances developed subsequent to the filing of the note of issue to justify an additional examination (see 22 NYCRR 202.21; Giordano v Wei Xian Zhen, 103 AD3d 774, 775; Schissler v Brookdale Hosp. Ctr., 289 AD2d 469, 470).”

(2) “Thus, the foregoing case law contemplates that a plaintiff will normally be entitled to have his or her attorney present at an IME, but that permission to employ the additional measure of videotaping the examination will be granted only where the plaintiff establishes the existence of special and unusual circumstances. The latter proposition presupposes that a request for the court’s permission to engage in videotaping will be made.”

(3) “While CPLR 3101(i) was enacted for the primary purpose of preventing unfair surprise in situations where a defendant uses surveillance video in an attempt to reveal that a plaintiff’s injuries are not as severe as the plaintiff claims they are, the statute employs broad language, which is not limited to such a scenario, but instead requires disclosure of “any films, photographs, video tapes or audio tapes” of a party, regardless of who created the recording or for what purpose”

(4) “Thus, the failure of the plaintiff’s attorneys to disclose to defense counsel the videotape depicting the plaintiff being examined by Dr. Katz violated CPLR 3101”

(5) “Notably, as the Supreme Court anticipated, its condemnation of Dr. Katz has had an effect on other cases. In several recent cases in which Dr. Katz was retained to perform IMEs, courts have been presented with requests for new IMEs based on the events that transpired in the present case.”

(6) My favorite line: “In sum, given the avalanche of errors that occurred in this case, we find that the appellants satisfied their burden of demonstrating unusual and unanticipated circumstances justifying an additional medical examination of the plaintiff by an orthopedist to be designated by them.

(7) Sanctions: “Thus, we conclude that the conduct of plaintiff’s counsel was frivolous within the meaning of 22 NYCRR 130-1.1, and that the Supreme Court abused its discretion in denying those branches of the appellants’ motions which were for an award of costs against plaintiff’s counsel. The appellants are entitled to recover from Patrick J. Hackett and Constantinidis & Associates the costs they incurred in participating in the first trial on the issue of damages, as well as the costs they incurred in making and litigating the motions at issue on these appeals and in pursuing these appeals. Upon remittal, the Supreme Court should conduct a hearing to determine the total amount of such costs, as well as the proper apportionment of those costs as between Mr. Hackett and Constantinidis & Associates”