IME/EUO no-show substantiated (First Department).

Proving No-Shows: Court Standards for IME and EUO Non-Appearance

In New York no-fault insurance law, insurance companies frequently schedule Independent Medical Examinations (IMEs) and Examinations Under Oath (EUOs) to investigate claims. When claimants fail to appear, insurers must provide proper documentation to substantiate these no-shows in court proceedings.

Two recent First Department decisions demonstrate the evidentiary standards courts require when insurance companies claim that assignors failed to appear for scheduled examinations. These cases illustrate how proper documentation and sworn testimony can successfully establish non-appearance, which is crucial for insurers defending against claims where EUO objections may be considered futile or when discovery rights are at stake.

The decisions emphasize that competent evidence must include sworn affidavits from individuals with personal knowledge of the scheduling process and office policies, rather than mere assertions of non-appearance.

Case Background

These companion cases from the First Department Appellate Term both involved healthcare providers seeking payment for no-fault benefits after insurance companies denied claims based on assignors’ failures to appear for scheduled examinations. In Urban Well Acupuncture, the insurer scheduled multiple IMEs that the assignor allegedly failed to attend. In Metro 8 Med. Equip., the issue centered on repeated EUO no-shows by the claimant.

Both providers challenged the insurers’ summary judgment motions, arguing that the insurance companies failed to submit competent evidence establishing the assignors’ non-appearances. The providers contended that the affidavits submitted lacked sufficient foundation demonstrating personal knowledge of the scheduling process, the examination dates, and the procedures followed when assignors fail to appear.

The Appellate Term was tasked with determining whether the affidavits submitted by the insurance companies met the evidentiary standards required to establish prima facie entitlement to summary judgment on IME and EUO no-show defenses. This required analyzing whether the affiants demonstrated adequate personal knowledge and whether their testimony about office policies and procedures was sufficiently detailed to support the claimed non-appearances.

Jason Tenenbaum’s Analysis:

Urban Well Acupuncture, P.C. v Nationwide Gen. Ins. Co., 2016 NY Slip Op 50906(U)(App. Term 1st Dept. 2016)

“Contrary to plaintiff’s contention, defendant submitted competent evidence of the assignor’s nonappearance in the form of the sworn affidavits of the scheduled examining chiropractor/acupuncturist and an employee of defendant’s third-party IME scheduler, setting forth sufficient facts to demonstrate the affiants’ personal knowledge of the assignor’s repeated failures to appear for the IMEs and the office practices and policies when an assignor fails to appear for a scheduled IME”

Metro 8 Med. Equip., Inc. v Esurance Ins. Co, 2016 NY Slip Op 50904(U)(App. Term 1st Dept. 2016)

Contrary to plaintiff’s contention, defendant submitted competent evidence of the assignor’s nonappearance in the form of the affirmation of defendant’s attorney who was assigned to the file and the affidavit of defendant’s employee who was responsible for the scheduling of the EUOs, setting forth sufficient facts to demonstrate the affiants’ personal knowledge of the assignor’s repeated failures to appear for the EUOs and the office practices and policies when an assignor fails to appear for a scheduled IME (sic)“

Legal Significance

These decisions establish clear evidentiary standards for insurance companies seeking to prove IME and EUO no-shows in summary judgment proceedings. The First Department requires more than conclusory statements about non-appearance; insurers must provide detailed sworn testimony from individuals with direct knowledge of both the specific incidents and the general office procedures governing examination scheduling and documentation.

The cases illustrate the two-pronged approach courts employ when evaluating no-show evidence. First, affiants must demonstrate personal knowledge of the specific non-appearance events at issue — typically through direct involvement in scheduling, attempted examination, or post-no-show documentation. Second, affiants must articulate the office’s established practices and policies for recording and responding to non-appearances, showing that these procedures were followed in the case at hand.

By accepting affidavits from examining practitioners, third-party IME schedulers, and responsible employees, the court recognizes that proof of non-appearance may come from various sources within the insurance claim handling process. The key requirement is not the affiant’s specific title or role, but rather their demonstrated personal knowledge of relevant events and procedures. This flexible approach allows insurers to structure their operations differently while still being able to meet evidentiary burdens in litigation.

The decisions also reinforce that repeated failures to appear strengthen an insurer’s position. When assignors miss multiple scheduled examinations, courts view the pattern as particularly compelling evidence supporting the insurer’s defense, making it more difficult for providers to create triable issues of fact through bare denials or conclusory opposition papers.

Practical Implications

For insurance defense attorneys, these cases provide a roadmap for preparing successful summary judgment motions on IME and EUO no-show grounds. Counsel should obtain detailed affidavits from individuals directly involved in the examination process, ensuring they describe both the specific non-appearance incidents and the general office procedures. The affidavits should explain how the affiant acquired personal knowledge — whether through direct involvement in scheduling, presence at the examination location, or review of contemporaneous records.

Healthcare providers and their attorneys should carefully scrutinize the foundation laid in insurers’ affidavits when opposing no-show based summary judgment motions. Providers should examine whether affiants truly demonstrate personal knowledge or merely parrot information from unidentified sources. Challenging insufficient foundation can defeat otherwise strong no-show defenses, though these decisions indicate that properly drafted affidavits from appropriate personnel will typically satisfy evidentiary requirements.

The cases also highlight the importance of documentation in the examination scheduling process. Insurance companies should maintain detailed records of all communications, scheduling letters, and follow-up efforts regarding IMEs and EUOs. When non-appearances occur, contemporaneous notation of the failure and any attempted contact should be made in claim files. These contemporaneous records provide the foundation for later affidavit testimony and help establish the personal knowledge required by these decisions.

Key Takeaway

Insurance companies can successfully prove IME and EUO no-shows by submitting sworn affidavits from individuals with personal knowledge of the scheduling process and established office policies. The courts require detailed testimony that demonstrates the affiants’ direct involvement and understanding of procedures when assignors fail to appear for scheduled examinations.

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