Key Takeaway
Court ruling highlights evidentiary standards for proving patient no-shows at IMEs, questioning the temporal limits and procedural requirements for valid affidavits.
This article is part of our ongoing ime issues coverage, with 149 published articles analyzing ime issues issues across New York State. Attorney Jason Tenenbaum brings 24+ years of hands-on experience to this analysis, drawing from his work on more than 1,000 appeals, over 100,000 no-fault cases, and recovery of over $100 million for clients throughout Nassau County, Suffolk County, Queens, Brooklyn, Manhattan, and the Bronx. For personalized legal advice about how these principles apply to your specific situation, contact our Long Island office at (516) 750-0595 for a free consultation.
Independent Medical Examinations (IMEs) are a cornerstone of New York’s no-fault insurance system, allowing insurers to evaluate the medical necessity of treatments and claims. When patients fail to appear for scheduled IMEs, insurance companies often deny related claims. However, proving a “no-show” requires more than simply asserting it happened—especially when significant time has passed between the missed appointment and the legal proceedings.
The Appellate Term’s decision in Village Med. Supply, Inc. v Travelers highlights the evolving standards for what constitutes adequate proof of a patient’s failure to appear at an IME. This case demonstrates how procedural requirements for IME no-shows continue to develop, particularly regarding the quality and specificity of evidence needed to support denial decisions.
The fundamental issue centers on the reliability of retrospective testimony. When medical examiners claim to remember specific non-appearances from many months earlier, courts must evaluate whether those recollections rest on genuine memory or merely represent conclusions drawn from office records. The distinction matters because insurance companies defending claim denials must produce competent, admissible evidence rather than self-serving assertions.
As time passes between the alleged no-show and litigation, courts increasingly demand that examining physicians explain the basis for their recollection. A bare statement that “the patient didn’t show up” lacks the indicia of reliability necessary for summary judgment when made a year after the fact. This heightened scrutiny protects medical providers from denials based on faulty memory or incomplete documentation.
Case Background
Village Medical Supply provided durable medical equipment to an automobile accident victim and submitted claims for reimbursement to Travelers Property Casualty Company. Travelers scheduled the injured patient for Independent Medical Examinations to assess medical necessity. When the patient allegedly failed to appear, Travelers denied the related claims and refused payment to Village Medical Supply.
Village Medical Supply filed suit seeking payment. Travelers moved for summary judgment, arguing that the patient’s IME non-appearance justified claim denial. The insurance company submitted affidavits from the examining doctors stating that the patient had not appeared for scheduled appointments approximately twelve months earlier. Village Medical Supply opposed the motion, challenging the adequacy of these affidavits.
Jason Tenenbaum’s Analysis:
Village Med. Supply, Inc. v Travelers Prop. Cas. Co. of Am., 2016 NY Slip Op 50339(U)(App. Term 1st Dept. 2016)
“The affidavits of defendant’s IME doctors lacked probative value, since they failed to state the basis of their recollection, some 12 months later, that the assignor did not appear on the scheduled IME dates”
This is interesting and asks a few questions. First: what is the tempral cut off when the affidavit has to say more than: “I was there and (s)he did not attend tee IME?” Second: I am assuming there has to be a minimal recitation of business practice to prove the no show? The rules with no-shows, both procedurally and substantively keep changing.
Legal Significance of Temporal Limitations on IME Affidavits
The Village Medical Supply decision establishes that the passage of time affects the required specificity of IME no-show affidavits. While courts have not drawn bright-line temporal cutoffs, the twelve-month gap in this case clearly exceeded what judges consider reasonable for bare assertions of recollection. This suggests that affidavits submitted within a few months of the alleged no-show might withstand scrutiny with minimal detail, while older claims require more substantial foundation.
The underlying principle connects to hearsay rules and business records exceptions. When examining physicians rely on office records to refresh their recollection, they should explain this process in their affidavits. When they claim independent memory of specific patients not appearing, courts expect some explanation of what makes that particular instance memorable. Physicians conduct numerous examinations, and the human capacity to distinctly recall individual non-appearances diminishes as time passes.
This evidentiary standard also prevents insurance companies from manufacturing no-show defenses through boilerplate affidavits. If physicians could simply sign standardized statements claiming patients didn’t appear, regardless of their actual memory or documentation, the entire IME enforcement mechanism would lack credibility. Requiring meaningful recollection statements ensures that denials rest on genuine facts rather than litigation convenience.
Practical Implications for No-Fault Practitioners
Insurance defense attorneys must develop robust IME documentation protocols. Contemporary record-keeping becomes crucial for supporting later litigation. This includes timestamped logs of patient arrivals and non-appearances, contemporaneous notes made when patients fail to appear, and systematic procedures followed when no-shows occur. These business records provide the foundation that makes later affidavit testimony credible.
Medical providers challenging IME no-show denials should examine the temporal gap between the alleged non-appearance and the affidavit execution date. Delays exceeding six months create opportunities to challenge affidavit sufficiency, particularly when physicians provide no explanation of their recollection basis. Discovery demands targeting IME office procedures, appointment tracking systems, and the specific affiant’s involvement in recordkeeping can expose weaknesses in the insurance company’s proof.
The ruling also suggests that insurance companies should move more quickly to assert IME no-show defenses. Prompt litigation or arbitration filing while memories remain fresh produces stronger evidence and reduces vulnerability to temporal challenges. Carriers that delay asserting no-show defenses until memories fade effectively undermine their own proof at trial.
Key Takeaway
This decision establishes that IME doctors’ affidavits must provide a sufficient basis for their recollection when substantial time has elapsed. Insurance companies cannot rely on bare assertions of no-shows without explaining how the examining physician remembers specific details from months-old appointments. The ruling suggests that proper documentation and business practices become increasingly important as time passes, potentially requiring detailed record-keeping procedures to substantiate future denials based on patient non-appearance.
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Legal Context
Why This Matters for Your Case
New York law is among the most complex and nuanced in the country, with distinct procedural rules, substantive doctrines, and court systems that differ significantly from other jurisdictions. The Civil Practice Law and Rules (CPLR) governs every stage of civil litigation, from service of process through trial and appeal. The Appellate Division, Appellate Term, and Court of Appeals create a rich and ever-evolving body of case law that practitioners must follow.
Attorney Jason Tenenbaum has practiced across these areas for over 24 years, writing more than 1,000 appellate briefs and publishing over 2,353 legal articles that attorneys and clients rely on for guidance. The analysis in this article reflects real courtroom experience — from motion practice in Civil Court and Supreme Court to oral arguments before the Appellate Division — and a deep understanding of how New York courts actually apply the law in practice.
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Mar 25, 2017Common Questions
Frequently Asked Questions
What is an Independent Medical Examination (IME)?
An IME is a medical examination conducted by a doctor chosen by the insurance company to evaluate the claimant's injuries and treatment. In no-fault cases, insurers use IMEs to determine whether ongoing treatment is medically necessary, whether the injuries are causally related to the accident, and whether the claimant has reached maximum medical improvement. The results of an IME can form the basis for a claim denial or cut-off of benefits.
Can I refuse to attend an IME?
No. Under New York's no-fault regulations, attending an IME when properly scheduled is a condition precedent to receiving benefits. However, the insurer must follow specific scheduling procedures — including providing reasonable notice and accommodating certain scheduling conflicts. If the insurer fails to properly schedule the IME or you have a legitimate reason for missing it, the resulting denial may be challenged.
How should I prepare for an Independent Medical Examination?
Be honest and thorough when describing your symptoms, limitations, and treatment history. Arrive on time with photo ID and be prepared for a physical examination that may test your range of motion and functional abilities. The IME doctor works for the insurance company and may spend limited time with you, so clearly communicate your ongoing symptoms. Your attorney can advise you on what to expect and review the IME report for accuracy afterward.
What is maximum medical improvement (MMI) in no-fault cases?
Maximum medical improvement (MMI) means the point at which your condition has stabilized and further treatment is unlikely to produce significant improvement. When an IME doctor determines you have reached MMI, the insurer may cut off further no-fault benefits. However, reaching MMI does not necessarily mean you have fully recovered — you may still have permanent limitations. Your treating physician can dispute the MMI finding through a detailed rebuttal affirmation.
Can I challenge an IME doctor's findings in my no-fault case?
Yes. If an IME results in a denial or cut-off of benefits, your treating physician can submit a sworn affirmation rebutting the IME findings point by point. The rebuttal should reference specific clinical findings, objective test results, and range-of-motion measurements that contradict the IME conclusions. At arbitration or trial, the fact-finder weighs both the IME report and the treating physician's opinion. An experienced no-fault attorney can identify weaknesses in the IME report.
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About the Author
Jason Tenenbaum, Esq.
Jason Tenenbaum is the founding attorney of the Law Office of Jason Tenenbaum, P.C., headquartered at 326 Walt Whitman Road, Suite C, Huntington Station, New York 11746. With over 24 years of experience since founding the firm in 2002, Jason has written more than 1,000 appeals, handled over 100,000 no-fault insurance cases, and recovered over $100 million for clients across Long Island, Nassau County, Suffolk County, Queens, Brooklyn, Manhattan, the Bronx, and Staten Island. He is one of the few attorneys in the state who both writes his own appellate briefs and tries his own cases.
Jason is admitted to practice in New York, New Jersey, Florida, Texas, Georgia, and Michigan state courts, as well as multiple federal courts. His 2,353+ published legal articles analyzing New York case law, procedural developments, and litigation strategy make him one of the most prolific legal commentators in the state. He earned his Juris Doctor from Syracuse University College of Law.
Disclaimer: This article is published by the Law Office of Jason Tenenbaum, P.C. for informational and educational purposes only. It does not constitute legal advice, and no attorney-client relationship is formed by reading this content. The legal principles discussed may not apply to your specific situation, and the law may have changed since this article was last updated.
New York law varies by jurisdiction — court decisions in one Appellate Division department may not be followed in another, and local court rules in Nassau County Supreme Court differ from those in Suffolk County Supreme Court, Kings County Civil Court, or Queens County Supreme Court. The Appellate Division, Second Department (which covers Long Island, Brooklyn, Queens, and Staten Island) and the Appellate Term (which hears appeals from lower courts) each have distinct procedural requirements and precedents that affect litigation strategy.
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