IME No-Show Affidavits Without Personal Knowledge Are Insufficient: T & J Chiropractic v GEICO

When insurance companies seek to dismiss no-fault claims based on a patient’s failure to appear for an Independent Medical Examination (IME), they must provide proper evidence of that non-appearance. A 2015 appellate decision highlights a critical weakness in how some insurers document IME no-shows, potentially affecting thousands of New York no-fault insurance cases.

Key Takeaways

• An IME no-show affidavit must demonstrate the affiant’s personal knowledge of the assignor’s non-appearance — a bare “I am a doctor and the assignor failed to appear” recital may not survive scrutiny.
• In T & J Chiropractic v GEICO, properly sworn statements from the scheduled examiners still failed because neither professional showed how they knew the assignor did not show up.
• The decision sits in tension with ATIC v. Solorzano and tracks the stricter Alrof and Bright Supply/IDS line of cases.
• Carriers should build no-show affidavits around office procedure: who was present, how appearances are logged, and how the affiant knows the patient never arrived.

The case demonstrates that generic affidavits from healthcare providers may not meet the legal standards required to prove a patient failed to appear for examination. This ruling has significant implications for both healthcare providers and insurance companies in no-fault litigation, as it raises the bar for what constitutes adequate proof of non-compliance with IME requirements.

The Decision

Jason Tenenbaum’s Analysis:

T & J Chiropractic, P.C. v Geico Ins. Co., 2015 NY Slip Op 50772(U)(App. Term 2d Dept. 2015)

“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 as a matter of law to the dismissal of these causes of action”

Without having seen the affidavits, I am assuming that that these are the one or two sentences that say “I am a doctor and Assignor failed to appear”. These worked in ATIC v. Solorzano, but would most likely fail the Alrof and Bright Supply/IDS test.

The Legal Framework

The IME requirement comes from the no-fault regulation, 11 NYCRR 65, and from the mandatory personal injury protection endorsement, which conditions coverage on the eligible injured person appearing for medical examinations when reasonably requested. An assignor’s failure to appear for two duly scheduled IMEs is a breach of a condition precedent to coverage and, when properly proven, a complete defense to a provider’s claim.

To win summary judgment under CPLR 3212 on an IME no-show defense, a carrier generally must establish three things with admissible evidence: that the IME scheduling letters were properly mailed, that the assignor failed to appear on both dates, and that the claim was timely denied on that ground. Each element typically rides on affidavits — and each affidavit must be made by someone competent to swear to the facts asserted.

Personal knowledge is the choke point. A properly notarized affidavit is still worthless on the non-appearance element if the affiant never explains how he or she knows the patient did not show up. The scheduled examiner is the natural witness, but only if the affidavit describes the examiner’s presence in the office on the scheduled dates and the practice for recording appearances. A conclusory recital that the assignor “failed to appear” asks the court to take the fact on faith — and, as this decision shows, the Appellate Term will not.

Why This Matters for Carriers and Providers

For carriers, T & J Chiropractic is a quality-control warning. IME vendors generate no-show affidavits in volume, and the temptation is to use a short-form template. When the affidavit omits the foundation for personal knowledge, the carrier loses summary judgment even though the underlying no-show may be genuine — and may face the no-show issue at trial with a stale record.

For medical providers and their collection counsel, the decision supplies a ready-made opposition argument. Scrutinize the no-show affidavit before conceding the defense: Was the affiant actually present? Does the affidavit explain the office’s sign-in or appearance-logging procedure? If not, the carrier has not carried its prima facie burden, and the motion should fail regardless of what the provider submits. This mirrors the burden-shifting logic discussed in the firm’s overview of a formulation of a prima facie case.

Practice Pointers

• Draft no-show affidavits with foundation. The examiner should state that he or she was present at the facility on each scheduled date, describe how appearances are tracked, and state that the assignor’s arrival would have been recorded.
• Pair the examiner’s affidavit with an office affidavit. A statement from the IME facility’s coordinator describing intake procedures can shore up gaps, as in cases requiring substantiated no-show documentation.
• Do not forget mailing proof. Even a perfect no-show affidavit fails if the scheduling letters’ mailing is not established through personal knowledge or a standard office practice.
• Plaintiffs: attack the foundation first. Personal-knowledge defects defeat the motion without any need for a counter-affidavit.

Frequently Asked Questions

What must an insurer prove to win on an IME no-show defense in New York?

The carrier must show that IME notices were properly mailed to the assignor, that the assignor failed to appear on two scheduled dates, and that it denied the claim on that basis. Each element must be established through affidavits from people with personal knowledge or through a sworn description of a standard office practice.

Why was the examiner’s affidavit insufficient in T & J Chiropractic v GEICO?

The chiropractor and doctor who were scheduled to perform the IMEs swore that the assignor did not appear, but neither explained how they knew that. Without facts demonstrating personal knowledge of the non-appearance — presence in the office, an appearance log, intake procedure — the affidavits could not support summary judgment.

Does a failed IME no-show motion end the defense?

No. Losing summary judgment means the carrier failed to prove the defense as a matter of law on that record. The no-show defense can still be litigated at trial, where the examiner or facility witnesses can testify from personal knowledge.

Related Resources

• IME no-shows in New York no-fault insurance cases — the firm’s cluster hub on the IME no-show defense
• Mailing and proof of service issues in IME no-show cases
• No-show substantiated
• The firm’s Legal Encyclopedia
• No-fault defense practice