What was the other basis for finding the EUO no shows are invalid?

When Unclear Circumstances Defeat EUO No-Show Defenses

In New York’s no-fault insurance system, insurance carriers frequently rely on Examination Under Oath (EUO) no-show defenses to deny claims. However, carriers bear the burden of proving with clarity that patients failed to appear for properly scheduled EUOs. When the circumstances surrounding scheduled EUO dates remain unclear or when evidence suggests possible rescheduling, courts will reject these defenses and may grant summary judgment in favor of healthcare providers.

The Appellate Term’s decisions in St. Chiropractic, P.C. v Ameriprise Auto & Home and related cases demonstrate how ambiguous records regarding EUO scheduling can doom an otherwise facially valid no-show defense. These cases also reveal an intriguing pattern: three different Civil Court judges independently granted summary judgment for plaintiff healthcare providers in similar circumstances, suggesting widespread judicial skepticism toward poorly documented EUO defenses.

Case Background

The healthcare providers in these consolidated appeals had submitted no-fault claims to Ameriprise Auto & Home seeking reimbursement for services rendered to injured patients. Ameriprise scheduled Examinations Under Oath for the patients, asserting that the patients failed to appear for four different EUO dates. Based on these alleged no-shows, Ameriprise denied the underlying claims, arguing that the patients’ failure to cooperate with the investigation process excused the carrier’s obligation to pay.

However, Ameriprise’s documentation of the EUO scheduling and no-shows suffered from significant deficiencies. The carrier conceded on appeal that two of the four scheduled EUO dates—the second and third examinations—had been mutually rescheduled prior to the appointed times. This concession was fatal to relying on those dates as grounds for denial, because patients cannot be faulted for failing to appear at dates that were rescheduled by agreement of the parties.

The circumstances surrounding the remaining two EUO dates—the first and fourth scheduled examinations—remained unclear from the record. The Appellate Term could not determine from Ameriprise’s submissions whether the first EUO had also been mutually rescheduled, and if so, whether that rescheduling preceded the original appointment time. Without clear evidence establishing that valid, unreschedule EUO appointments existed and that patients failed to appear for them, the carrier could not meet its burden of proving the no-show defense.

Most significantly, the Appellate Term noted that even if the first EUO had not been rescheduled, “the circumstances surrounding the first and fourth scheduled examination dates are so unclear on this record that it is impossible to tell whether there might potentially be another basis to find that either date should not be deemed to constitute a failure to appear.” This cryptic language left practitioners wondering: what was the “other basis” the court had in mind?

(1) “Here, defendant alleges that plaintiff’s assignor was scheduled to appear for an EUO on four different dates, that he did not appear at all, and that his conduct constituted a failure to comply with a condition precedent to coverage. However, defendant concedes on appeal that the second and third examination dates had been mutually rescheduled prior to the appointed time, and therefore a no-show on those dates would not be deemed to constitute a failure to appear”

(2) “Furthermore, it is unclear from the record whether the first EUO had been mutually rescheduled prior to the appointed time, in which case it would not constitute a failure to appear. Even if it had not been, the circumstances surrounding the first and fourth scheduled examination dates are so unclear on this record that it is impossible to tell whether there might potentially be another basis to find that either date should not be deemed to constitute a failure to appear.”

I am curious what the other basis is.

Also, in three cases, three different Civil Court judges granted Plaintiff summary judgment. Did you notice this?

St. Chiropractic, P.C. v Ameriprise Auto & Home

Avicenna Med. Arts, P.L.L.C. v Ameriprise Auto & Home

Legal Significance

The Appellate Term’s decisions reinforce several important principles governing EUO no-show defenses in no-fault litigation. First, insurance carriers bear the burden of clearly establishing the factual predicate for these defenses. It is not sufficient for carriers to simply assert that patients failed to appear for EUOs; carriers must provide clear evidence showing when EUOs were scheduled, that proper notice was given, that the scheduled dates were never rescheduled, and that patients actually failed to appear. When any of these elements remains unclear or disputed, carriers cannot prevail on summary judgment.

Second, the decisions emphasize that mutual rescheduling nullifies the significance of no-shows on originally scheduled dates. If parties agree to reschedule an EUO from Date A to Date B, the patient’s failure to appear on Date A is irrelevant because the parties mutually agreed that the examination would occur on Date B instead. Carriers cannot count mutually rescheduled appointments toward establishing a pattern of non-cooperation or satisfying the requirement that patients failed to appear for validly scheduled EUOs.

Third, and most intriguingly, the court’s reference to “potentially another basis” for finding that the first and fourth EUO dates should not constitute failures to appear suggests multiple potential deficiencies beyond the rescheduling issue. What might these other bases be? Possibilities include:

• Defective notice: Perhaps the scheduling letters were sent to wrong addresses, mailed too close to the scheduled dates to provide adequate notice, or contained insufficient information about the examination locations or times.

• Lack of personal knowledge: Maybe the affidavits supporting Ameriprise’s summary judgment motion came from individuals who lacked personal knowledge of whether patients actually appeared, similar to the Alrof line of cases requiring such knowledge.

• Conflicting evidence: The record might have contained evidence suggesting patients did appear, or attempted to appear but encountered problems such as being turned away, arriving at wrong locations based on incorrect information, or facing other obstacles.

• Improper EUO requirements: Perhaps Ameriprise’s EUO demands were substantively improper in some way, such as requiring patients to travel unreasonable distances, scheduled at unreasonable times, or included improper conditions or requirements.

The court’s careful language suggests that appellate judges identified multiple potential problems with Ameriprise’s EUO defense but chose not to specify them, instead affirming the Civil Court determinations based on the overall lack of clarity in the carrier’s evidence.

Practical Implications

For insurance carriers, these decisions underscore the critical importance of maintaining detailed, clear records of EUO scheduling and any subsequent communications about rescheduling or modification of appointments. Carriers should implement procedures ensuring that:

1. All EUO scheduling letters are documented with proof of mailing to correct addresses and sufficient advance notice.
2. Any discussions about rescheduling are documented in contemporaneous written records.
3. Affidavits supporting EUO no-show defenses come from individuals with personal knowledge of the non-appearances.
4. Claims files contain clear timelines showing the sequence of scheduled appointments, rescheduling discussions, and no-shows.
5. No ambiguity exists about which EUO dates were validly scheduled and never rescheduled.

When carriers cannot provide this level of clarity and documentation, they should seriously consider settling claims rather than pursuing summary judgment based on EUO defenses that courts will likely reject.

For healthcare providers, these cases provide powerful ammunition for defeating EUO-based denials. Providers should carefully examine carriers’ motion papers for any ambiguities or unclear aspects of the EUO scheduling history. Questions to explore include:

• Were there any communications between the carrier and patient or their attorney about rescheduling?
• Do the carrier’s records clearly show which appointments, if any, were rescheduled?
• Are there gaps in the documentary record that might suggest missing communications?
• Do the affidavits come from individuals with personal knowledge?
• Were scheduling letters sent to correct addresses with adequate advance notice?

Jason Tenenbaum’s observation that three different Civil Court judges independently granted summary judgment for the providers in similar circumstances is highly significant. This pattern suggests not merely that one judge made an isolated determination, but that multiple independent judicial officers examining similar facts reached the same conclusion that Ameriprise’s EUO defenses were inadequately supported. Such consistency across multiple judges provides strong precedent for future cases involving similar factual circumstances.

Related Articles

• How to Challenge EUO No-Show Denials: When Improper Notice Can Reverse Insurance Denials in New York
• Personal Knowledge Requirements for EUO Non-Appearances: NY Legal Standards
• New York EUO Requirements: When Examination Under Oath Demands Are Untimely
• Validity of EUO, Appellate Term, 2d Dept: Take two
• New York No-Fault Insurance Law