Key Takeaway
Court denies insurance company's motion for summary judgment in IME no-show case due to lack of personal knowledge by examining healthcare professionals.
Independent Medical Examinations (IMEs) are a critical component of New York’s no-fault insurance system, allowing insurers to verify the medical necessity of treatments and the extent of injuries claimed by accident victims. When a claimant fails to appear for a scheduled IME, insurance companies often move for summary judgment to dismiss pending claims. However, as this recent decision demonstrates, insurers must meet specific evidentiary standards to prove a legitimate no-show occurred.
The Delta Diagnostic case highlights a recurring procedural error that has plagued one particular law firm across multiple IME no-show cases. Under New York No-Fault Insurance Law, insurance companies must establish through competent evidence that a claimant actually failed to appear for a properly scheduled examination. Simply submitting affidavits from healthcare professionals who were supposed to conduct the IME is insufficient if those professionals lack personal knowledge of the non-appearance.
Jason Tenenbaum’s Analysis:
Delta Diagnostic Radiology, P.C. v Auto One Ins. Co., 2015 NY Slip Op 51032(U)
“However, defendant’s motion for summary judgment dismissing the complaint should also have been denied. While defendant submitted properly sworn statements by the acupuncturist and doctor who had been 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 the complaint (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 ; Bright Med. Supply Co. v IDS Prop. & Cas. Ins. Co., 40 Misc 3d 130, 2013 NY Slip Op 51123 ; Quality Health Prods. v Hertz Claim Mgt. Corp., 36 Misc 3d 154, 2012 NY Slip Op 51722 ).”
Here is some trivia. The same firm that lost Bright Medical, Alrof and Quality Medical lost this one. I call this the Alrof curse…
Key Takeaway
Insurance companies must provide competent evidence through witnesses with personal knowledge to establish IME no-shows. Healthcare professionals scheduled to perform examinations cannot simply attest to non-appearance without demonstrating they have direct knowledge of the facts. This evidentiary requirement continues to trip up defense counsel who fail to properly substantiate their IME no-show claims.
