The proof of no-show

Understanding IME No-Show Documentation Requirements

In New York’s no-fault insurance system, Independent Medical Examinations (IMEs) play a crucial role in claim processing. When a claimant fails to appear for a scheduled IME, insurance carriers must properly document this non-appearance to deny benefits. However, as a recent appellate court decision demonstrates, not all documentation methods meet the legal standard required for proof.

The challenge lies in establishing a proper “basis of knowledge” when proving a no-show occurred months after the fact. This issue frequently arises in New York No-Fault Insurance Law disputes, where insurance carriers attempt to use generic affidavits that lack sufficient detail about how the affiant knows the claimant didn’t appear.

Case Background: Metro 8 Medical Equipment v ELRAC, Inc.

This case involved a medical equipment supplier’s claims against Enterprise Rent-A-Car’s insurance division. The insurance carrier defended by asserting the claimant failed to appear for scheduled IMEs with a chiropractor/acupuncturist, justifying denial of benefits. The critical issue arose during motion practice when the insurance carrier submitted an affidavit from the healthcare professional who was supposed to conduct the IMEs.

The affidavit contained a striking admission: the affiant stated she does not maintain records of claimants’ non-appearances at IME appointments. This created an evidentiary puzzle. If the doctor doesn’t keep records of no-shows, how could she recall—18 months after the scheduled appointments—that this particular assignor failed to appear? The affidavit provided no explanation of what jogged her memory or what independent basis she had for recollecting these specific missed appointments.

The First Department Appellate Term examined whether such an affidavit met the foundational requirements for proof of non-appearance. The court referenced Westmed Physician, P.C. v State Farm Auto Ins. Co., which established standards for IME no-show proof. The question became whether an affiant can establish a sufficient “basis of knowledge” when they explicitly disclaim maintaining the very records that would document the event they’re attesting to.

Jason Tenenbaum’s Analysis:

Metro 8 Med. Equip., Inc. v ELRAC, Inc., 2016 NY Slip Op 50174(U)(App. Term 1st Dept. 2016)

“The affidavit of defendant’s chiropractor/acupuncturist, who affirmatively stated that she does not maintain records of a claimant’s nonappearances at IMEs scheduled with her office, lacked probative value, since it failed to state the basis of her recollection, some 18 months later, that the assignor did not appear on the scheduled IME dates (see Westmed Physician, P.C. v State Farm Auto Ins. Co., 17 Misc 3d 133, 2007 NY Slip Op 52113 )”

The test for “basis of knowledge” requires a statement that I have reviewed my records and Assignor did not appear. Other verbiage is necessary, but a review of records is required. The providers advocate for production of these records on motion, but we are not there yet.

The better solution to avoid all of this is for the insurance carrier to require contemporaneous affidavits of no-shows. This solves the above issue.

Legal Significance: The Basis of Knowledge Requirement

The Metro 8 decision reinforces fundamental evidence principles in no-fault litigation. Affidavits must demonstrate the affiant’s basis of knowledge—the source of their information about the facts they’re attesting to. This requirement prevents speculation, guesswork, or fabricated testimony from being presented as fact. When someone claims to remember a specific event from 18 months prior, courts expect them to explain what enables that recollection.

Typically, IME providers establish basis of knowledge in one of several ways. They may testify they personally witnessed the non-appearance because they were present at the office on the scheduled date. They may state they reviewed appointment logs, calendars, or patient sign-in sheets that documented who appeared and who didn’t. They may reference office procedures where no-shows are systematically recorded in patient files or computer databases. These explanations provide a logical foundation for the affiant’s knowledge.

What the Metro 8 affidavit lacked was any such foundation. By affirmatively stating she doesn’t maintain no-show records, the chiropractor eliminated the most common basis for recollection. She didn’t claim to have personally been present—IME doctors often schedule multiple examinations and may not personally recall each one. She didn’t reference any other documentation or record system. The court was left with a bare assertion that she remembered this particular no-show among potentially dozens or hundreds of scheduled examinations, with no explanation of why or how.

This evidentiary failure reflects a broader problem in insurance defense practice. Some carriers generate form affidavits months or years after alleged no-shows, asking healthcare providers to sign standardized statements without adequate investigation into whether the affiant actually has knowledge. The provider may sign such affidavits based on information supplied by the carrier, without independent recollection or verification. Courts increasingly scrutinize such affidavits, particularly when their deficiencies become apparent.

Practical Implications: Contemporaneous Documentation

The solution Jason Tenenbaum identifies—obtaining contemporaneous affidavits when no-shows occur—addresses the basis of knowledge problem directly. When a claimant fails to appear for an IME, the examining physician’s office should immediately document that non-appearance. An affidavit executed within days of the scheduled appointment can properly state: “I reviewed my appointment calendar for [date], and [claimant name] did not appear for their scheduled examination. This is based on my review of our office records maintained in the regular course of business.”

Such contemporaneous documentation provides clear basis of knowledge. The affiant reviewed records while events were fresh, before memories faded. The recency of the affidavit makes claims of personal recollection credible. The documentation can be preserved in the claim file, ready for use if litigation ensues months or years later. If the original affiant becomes unavailable, the carrier can use the contemporaneous affidavit along with testimony from someone who can authenticate it as a business record.

For healthcare providers and claimants challenging IME no-show defenses, the Metro 8 standard provides important leverage. Discovery should probe the basis for no-show affidavits. When did the affiant first attest to the no-show? What records did they review? Do they maintain any system for tracking appearances and non-appearances? If answers reveal the affidavit lacks proper foundation, providers can successfully challenge the defense’s sufficiency. Providers might also seek the examining physician’s deposition to test their actual recollection and knowledge, potentially exposing that they’re merely signing affidavits prepared by the carrier without independent verification.

Key Takeaway

Insurance carriers must ensure IME no-show affidavits include a clear statement that records were reviewed to establish the basis of the affiant’s knowledge. Generic affidavits stating someone doesn’t maintain no-show records fail to meet legal standards. The most effective approach is obtaining contemporaneous documentation immediately when a no-show occurs, rather than relying on after-the-fact recollections months later.