Key Takeaway
Court rejected IME no-show affidavits executed 8 years after the missed appointments, emphasizing the need for contemporaneous documentation in no-fault cases.
The Critical Importance of Timely IME Documentation in No-Fault Cases
Independent Medical Examinations (IMEs) are a cornerstone of New York No-Fault Insurance Law, allowing insurance carriers to evaluate the medical necessity and extent of claimed injuries. When patients fail to appear for scheduled IMEs, insurance companies often rely on physician affidavits to establish the no-show and potentially deny benefits.
However, as demonstrated in a recent Appellate Term decision, the timing and quality of these affidavits can make or break an insurer’s defense. The court’s ruling highlights a fundamental principle in no-fault litigation: contemporaneous documentation trumps after-the-fact recollections, especially when significant time has passed.
This case serves as a stark reminder for insurance carriers about the evidentiary standards required to prove IME non-compliance. While IME no-show cases can be complex, the burden of proof remains on the insurer to demonstrate that the examination was properly scheduled and that the patient failed to appear. When substantial time elapses between the alleged no-show and the documentation attempt, courts become increasingly skeptical of conclusory statements lacking specific factual support.
Jason Tenenbaum’s Analysis:
Healthy Way Acupuncture, P.C. v Clarendon Natl. Ins. Co., 2016 NY Slip Op 51381(U)(App. Term 2d Dept. 2016)
“The conclusory affidavits of defendant’s IME doctors lacked probative value, since they failed to state the basis of their recollection, some 8 years later, that the assignor did not appear on the scheduled IME dates”
Hard for me to fathom the type of proof, short of check-in-sheets to meet this exacting standard of proof that the Court has set forth when the no-show is more remote in time. But again, this is why the contemporaneous affidavit/affirmation is a must have.
Key Takeaway
The Appellate Term’s decision underscores the critical importance of obtaining contemporaneous documentation when IME no-shows occur. Insurance carriers cannot rely on physicians’ distant memories years later, regardless of how definitive their affidavits may sound. Proper documentation at the time of the alleged no-show—including detailed records of scheduling, notification procedures, and attendance verification—remains essential for successful no-show substantiation in litigation.
