The IME doctor is in numerous places

Independent Medical Examinations (IMEs) are a cornerstone of no-fault insurance claims in New York, designed to provide objective medical assessments of injury claims. However, a recent appellate court decision highlights a disturbing practice that could undermine the entire IME process: doctors claiming to be in multiple locations at the same time.

The case of MB Advanced Equipment, Inc. v New York Central Mutual Fire Insurance Co. exposes what appears to be a systematic problem with IME scheduling and documentation. When examining evidence related to IME scheduling procedures, the court discovered that medical professionals had sworn under oath to being in different locations than those specified in official IME notices. This discrepancy raises serious questions about the integrity of the entire examination process and could have far-reaching implications for how insurance companies handle New York no-fault insurance claims.

Jason Tenenbaum’s Analysis:

MB Advanced Equip., Inc. v New York Cent. Mut. Fire Ins. Co., 2016 NY Slip Op 50863(U)(App. Term 2d Dept. 2016)

“However, in opposition, plaintiff submitted affidavits in which the doctor and chiropractor had previously sworn, under penalty of perjury, that when the IMEs were scheduled to occur, they were at a location other than the address set forth in the IME scheduling letters. To the extent defendant’s counsel asserted in a reply affirmation that the discrepancy was due to typographical errors in the prior affidavits, counsel did not demonstrate that she possessed personal knowledge sufficient to establish, as a matter of law, that the doctor and chiropractor were at the correct location when the IMEs were to be held.”

This is terrific. Really? Heaven forbid this is true; this would be the predicate of a bad faith action.

IME Scheduling Verification Standards

The MB Advanced Equipment decision establishes critical standards for verifying IME scheduling legitimacy. Under New York law, insurance carriers bear the burden of proving that scheduled IMEs occurred at the locations specified in scheduling letters. When medical professionals submit affidavits under penalty of perjury stating they were at different locations than those listed in official notices, carriers cannot simply dismiss these contradictions as clerical errors.

The court’s analysis reveals that defense counsel’s attempt to characterize location discrepancies as “typographical errors” failed because counsel lacked personal knowledge to establish the doctors’ actual whereabouts. This holding reinforces that vague explanations without supporting evidence cannot overcome sworn testimony creating material questions of fact.

Sworn Conflicting Statements About Locations

The physicians in this case submitted affidavits under oath declaring they were at specific locations when the IMEs were scheduled. These locations directly contradicted the addresses provided in the IME scheduling letters sent to the plaintiff. Such conflicts are not mere administrative oversights—they represent fundamental questions about whether the examinations could have occurred as claimed.

When medical professionals swear under penalty of perjury to being in Location A, while official carrier documents state they were conducting examinations in Location B at the same time, the logical impossibility creates an evidentiary crisis. Either the scheduling letters misrepresented where examinations would occur, or the subsequent affidavits contained false statements about the doctors’ whereabouts.

MB Advanced Equipment Analysis

The Appellate Term’s decision turned on evidentiary standards and burden of proof. The plaintiff successfully raised triable issues of fact by presenting the doctors’ sworn prior statements about their locations. The carrier attempted to rehabilitate its position through defense counsel’s reply affirmation asserting typographical errors.

The court rejected this rehabilitation attempt for a critical reason: the attorney possessed no personal knowledge of where the medical examiners actually were on the dates in question. Affirmations from counsel without factual foundation cannot establish matters of law sufficient to warrant summary judgment. The carrier needed the doctors themselves to clarify the discrepancy through new affidavits with credible explanations, not counsel’s speculation about clerical mistakes.

Bad Faith Implications

This scenario presents troubling implications for insurance bad faith litigation. If carriers knowingly send IME scheduling letters listing incorrect locations, several bad faith theories emerge. First, misrepresenting examination locations could constitute fraudulent conduct designed to create technical IME no-show defenses when claimants appear at wrong addresses.

Second, if doctors routinely provide false sworn statements about their locations to support carriers’ denial positions, this suggests coordinated misconduct between insurers and their examining physicians. Such coordination could evidence the kind of systematic dishonesty that supports punitive damages in bad faith actions.

Third, the practice raises questions about whether carriers conduct adequate due diligence regarding their IME vendors. Insurers maintaining relationships with medical professionals who cannot keep their locations straight—or worse, who deliberately misstate them—may face liability for negligent selection and retention of examiners.

Practical Implications for IME Scheduling Integrity

Following MB Advanced Equipment, carriers must implement rigorous verification protocols. Before asserting IME no-show defenses, insurers should confirm that scheduling letters accurately reflected the examining physician’s actual location and availability. Documentation should include contemporaneous records from the medical office confirming the doctor’s schedule.

Medical examiners must maintain accurate records of their locations and appointment schedules. When providing affidavits in litigation, physicians should review their actual schedules from the relevant dates rather than relying on memory or assumptions. Any discrepancies between scheduling letters and actual locations must be identified and explained immediately, with supporting documentation.

For plaintiffs’ counsel, this decision provides a roadmap for challenging IME no-show defenses. Discovering the examining physician’s schedule through depositions or document requests may reveal location conflicts. When such conflicts emerge, carriers cannot cure them through counsel’s unsupported assertions about clerical errors.

Key Takeaway

This decision reveals potential fraud in the IME process, where medical professionals may be claiming impossible schedules or locations. The court’s rejection of the “typographical error” defense suggests that proper documentation and verification of IME logistics is crucial. Insurance companies must ensure their medical examiners can actually be where they claim to be, or face potential bad faith liability.

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