EUO no show substantiated

Waiver of EUO Objections Through Non-Response

Healthcare providers challenging insurance carriers’ examination under oath demands must timely raise objections or risk waiving those objections entirely. New York courts consistently hold that assignors who fail to respond to EUO requests cannot later challenge the reasonableness or propriety of those requests during litigation. This waiver doctrine prevents providers from ignoring examination demands, allowing denials to issue, and then claiming during litigation that the examinations were unnecessary or unreasonable.

The doctrine raises important questions about discovery rights in EUO cases. When providers argue that examination requests were unreasonable, can they conduct discovery into the carrier’s investigative files to demonstrate lack of legitimate purpose? Or does the waiver doctrine foreclose both the objection and any discovery related to it?

Case Background

In Natural Therapy Acupuncture, P.C. v State Farm Mutual Auto Insurance Co., the healthcare provider sued to recover no-fault benefits after State Farm denied claims based on the assignor’s failure to appear for EUOs. State Farm moved for summary judgment, submitting affidavits establishing that EUO scheduling letters and denial forms were timely mailed according to standard office practices and procedures.

The provider opposed the motion, arguing on appeal that it needed discovery to explore whether State Farm’s EUO requests were reasonable. The provider contended that without discovery into the carrier’s investigative rationale, it could not demonstrate whether the examination demands served legitimate purposes or were merely pretextual. The provider also challenged whether State Farm adequately proved non-appearance.

State Farm countered that the provider never responded to the EUO requests and therefore waived any objections. The Appellate Term, Second Department, considered whether the provider’s failure to respond to EUO demands precluded later challenges to their reasonableness and whether discovery was necessary for the provider to oppose summary judgment.

Natural Therapy Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 2014 NY Slip Op 50134(U)(App. Term 2d Dept. 2014)

“Contrary to plaintiff’s argument, the affidavits submitted by defendant established that the EUO scheduling letters and the denial of claim forms had been timely mailed in accordance with its standard office practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 ; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 ). Furthermore, since plaintiff does not claim to have responded in any way to the EUO requests, its objections regarding the EUO requests will not now be heard (see Viviane Etienne Med. Care, P.C. v State Farm Mut. Auto. Ins. Co., 35 Misc 3d 127, 2012 NY Slip Op 50579 ; Crescent Radiology, PLLC v American Tr. Ins. Co., 31 Misc 3d 134, 2011 NY Slip Op 50622 ). Consequently, discovery relevant to the reasonableness of the EUO requests was not necessary for plaintiff to oppose defendant’s motion (see CPLR 3212 ). Finally, contrary to plaintiff’s argument on appeal, the affirmation submitted by defendant’s attorney, who was present in his office to conduct plaintiff’s EUO on the scheduled dates, was sufficient to establish that plaintiff had failed to appear.”

Legal Significance

The Natural Therapy Acupuncture decision establishes a bright-line waiver rule: assignors who fail to respond to EUO requests cannot later challenge those requests’ reasonableness. This holding creates strong incentives for timely response. If an assignor or healthcare provider believes an EUO request is improper, unreasonable, or pretextual, they must raise those objections promptly rather than ignoring the request and contesting it during subsequent litigation.

The court’s additional holding that discovery into EUO reasonableness was unnecessary reinforces this waiver doctrine. Even if providers could theoretically raise reasonableness objections, the failure to respond waives both the objection and any discovery rights related to it. This prevents providers from using post-denial discovery as a fishing expedition into carriers’ investigative files.

The decision also confirms that defense counsel’s affirmation attesting to assignor non-appearance suffices as proof at summary judgment. The attorney who was present to conduct the EUO can affirm that the assignor failed to appear, without requiring additional testimony from investigators or stenographic records. This streamlines proof requirements for carriers establishing prima facie cases on EUO no-show denials.

Practical Implications

Healthcare providers and assignors must respond to all EUO requests, even those believed to be unreasonable or unnecessary. The response should either comply with the request by appearing for the examination, or state specific objections explaining why the examination is improper. Silence waives all objections and forecloses later challenges.

When providers do object to EUO demands, objections should be specific and detailed, explaining precisely why the examination is unreasonable, unnecessary, or pretextual. Generic objections likely will not preserve issues for litigation. Providers should document their objections in writing and maintain proof of mailing to establish they timely responded to the carrier’s demands.

Related Articles

• Understanding EUO Denial: When Insurance Companies Can Substantiate Coverage Denials
• Discovery disallowed when EUO requests are not responded to by deponent
• EUO no-show defense sustained
• Personal Knowledge Requirements for EUO Non-Appearances: NY Legal Standards
• New York No-Fault Insurance Law

Legal Update (February 2026): Since this 2014 decision, New York no-fault regulations governing examination under oath procedures, notice requirements, and proof standards may have been modified through regulatory amendments or updated Department of Financial Services guidance. Practitioners should verify current EUO scheduling requirements, notice provisions, and evidentiary standards under the current Insurance Law and implementing regulations.