Would you go to this psychologist?

Introduction: Medical Emergency Defenses and No-Show Policies

The enforcement of no-show policies in healthcare settings presents a complex intersection between contract law, medical ethics, and practical business considerations. Healthcare providers routinely require patients to provide advance notice of cancellations, with financial penalties imposed for missed appointments without proper notification. These policies serve legitimate purposes: they allow providers to fill vacant appointment slots, minimize lost revenue from unused time, and maintain efficient scheduling practices that benefit all patients.

However, the rigid enforcement of no-show policies can collide with genuine medical emergencies that prevent patients from providing advance notice. When a patient experiences an acute health crisis—such as a severe asthma attack, cardiac event, or other medical emergency—the obligation to notify a healthcare provider of a missed appointment may become physically impossible to fulfill. Courts must then balance the healthcare provider’s contractual rights against equitable considerations arising from the patient’s medical circumstances.

The evidentiary challenges in litigating no-show disputes often center on the credibility of the patient’s claimed emergency and the availability of documentation to corroborate the medical crisis. In small claims court, where formal rules of evidence are relaxed, judges possess broad discretion to admit medical records, witness testimony, and other evidence that might not be admissible in higher courts. This procedural flexibility can significantly affect outcomes in cases where patients assert medical emergency defenses to breach of contract claims. The Burns v. Kaplan case examined below illustrates how courts approach these evidentiary questions and the deference given to trial court credibility determinations.

Case Background: Burns v. Kaplan

Burns v Kaplan, 2012 NY Slip Op 50403(U)(App. Term 2d Dept. 2012)

Dr. Michael Burns, a psychotherapist, brought a small claims action against his former patient, Ms. Kaplan, seeking to recover payment for an unpaid psychotherapy session plus a late charge. The claim arose after Ms. Kaplan missed a scheduled appointment without providing advance notice as required under the parties’ “Psychotherapy Treatment Agreement.” This agreement, executed at the commencement of treatment, specified that patients must give advance notification of cancellations or face financial consequences for the missed appointment time.

Ms. Kaplan defended the action by asserting that she was physically unable to provide advance notice due to a medical emergency—specifically, a severe asthma attack that prevented her from contacting Dr. Burns before the appointment. At a nonjury trial, Ms. Kaplan presented testimony from a witness who corroborated her medical emergency defense, along with medical documentation relating to her asthma condition. The District Court, after evaluating the credibility of the witnesses and considering the medical evidence, found in favor of Ms. Kaplan and dismissed the action.

Dr. Burns appealed, challenging both the admissibility of certain medical documents and the District Court’s credibility determinations. The Appellate Term was called upon to review the trial court’s findings and determine whether the medical emergency defense had been properly established under the relaxed evidentiary standards applicable in small claims proceedings.

Jason Tenenbaum’s Analysis

“Plaintiff, a psychotherapist, brought this small claims action against defendant, his former patient, to recover for an unpaid psychotherapy session plus a late charge after defendant missed an appointment without giving him advance notice in accordance with the terms of the parties’ “Psychotherapy Treatment Agreement.” Defendant claimed that she was unable to give plaintiff advance notice due to a medical emergency. After a nonjury trial, the District Court found in favor of defendant and a judgment was entered dismissing the action.

...The District Court’s conclusion that defendant was unable to make her appointment because of an asthma attack turned on its determination regarding the credibility of the witnesses (see Williams, 269 AD2d 125). The District Court was aware of the relationship between the defense witness and defendant, and could take this relationship into account in assessing his testimony. With respect to plaintiff’s contention that certain medical documents pertaining to defendant were not admissible, we note that the small claims court is not strictly bound by the rules of evidence (UDCA 1804). As the record supports the District Court’s conclusion, we find no basis to disturb the judgment.

– Rumor has it that Dr. Howard Rombom, Psy.D. has a similar attendance policy as Dr. Michael Burns, Psy.D…

Legal Significance: Credibility Determinations and Evidentiary Flexibility

The Burns v. Kaplan decision reinforces fundamental principles governing appellate review of trial court findings. When a trial court’s determination rests on credibility assessments of witness testimony, appellate courts afford substantial deference to the trial judge who observed the witnesses’ demeanor and had the opportunity to evaluate their truthfulness firsthand. This principle applies with particular force in small claims proceedings, where the informality of the process and relaxed evidentiary standards are designed to facilitate access to justice for litigants who may not be represented by counsel.

The decision’s treatment of the medical documentation issue highlights an important procedural distinction between small claims court and other judicial forums. Uniform District Court Act Section 1804 explicitly provides that small claims courts are not strictly bound by formal rules of evidence. This statutory framework allows judges to admit documents and testimony that might be excluded as hearsay or otherwise inadmissible in Supreme Court or other courts of general jurisdiction. The flexibility serves important access-to-justice goals, enabling litigants to present relevant evidence without navigating complex evidentiary rules.

The case also illustrates the practical reality that relationships between witnesses and parties do not automatically disqualify testimony or render it incredible. While the District Court was aware that the defense witness had a relationship with Ms. Kaplan, this fact went to the weight of the testimony rather than its admissibility. Trial courts routinely evaluate testimony from interested witnesses and assess their credibility based on all the circumstances, including their relationship to the parties, consistency of their testimony, and corroboration from other evidence.

Practical Implications: No-Show Policies and Medical Emergencies

For healthcare providers, the Burns decision underscores the importance of carefully drafting no-show policies that account for genuine medical emergencies. While providers have legitimate interests in enforcing cancellation policies, attempting to recover fees from patients who experience documented medical crises may prove both unsuccessful and potentially damaging to the provider’s reputation. Providers should consider incorporating explicit medical emergency exceptions into their treatment agreements, with clear procedures for patients to document emergencies after the fact.

The decision also highlights litigation risks associated with pursuing small claims actions for relatively modest sums. The time and expense of prosecuting an appeal to recover a single session fee, plus the negative publicity associated with the “would you go to this psychologist” question posed in the title of this post, may far exceed any monetary recovery. Providers should carefully weigh the costs and benefits of litigation before pursuing legal action for missed appointments, particularly when patients proffer medical emergency defenses.

For patients facing claims for missed appointments, Burns demonstrates the viability of medical emergency defenses when supported by credible testimony and documentation. Patients should gather contemporaneous medical records, witness statements, and other evidence documenting the nature and timing of the medical crisis. In small claims court, the relaxed evidentiary standards enable patients to present this evidence without strict compliance with business record foundation requirements or other technical rules that might pose obstacles in other courts.

Related Articles

• Understanding IME No-Shows in New York No-Fault Insurance: Rights, Consequences, and Strategic Considerations
• Reasonable excuse satisfied despite claim of lack of personal jurisdiction
• The amendments to the regulations and what they mean to you
• Understanding CPLR 3212(a): Critical Timing Rules for Summary Judgment Motions in New York
• New York No-Fault Insurance Law

Legal Update (February 2026): Since this 2012 post, New York’s no-fault regulations have undergone significant amendments, including updates to fee schedules, provider application requirements, and reimbursement procedures for psychological services. Practitioners should verify current provisions in 11 NYCRR 65 and recent Department of Financial Services guidance, as procedural requirements for no-fault psychological treatment may have changed.