IME no-show affidavit executed 8 years prior to the no show

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.

The challenge facing insurers becomes exponentially more difficult as the temporal gap widens. Medical professionals conduct hundreds of examinations each year, making it nearly impossible to recall specific details about any single no-show appointment after significant time has passed. Without contemporaneous records demonstrating the failed appointment, physicians must rely on office procedures and documentation systems rather than personal memory.

Case Background

In Healthy Way Acupuncture, P.C. v Clarendon National Insurance Co., the insurance carrier attempted to defend against a provider’s billing claim by asserting that the assignor had failed to appear for scheduled Independent Medical Examinations. The carrier’s defense relied on affidavits from the examining physicians stating that the patient did not appear on the scheduled dates.

However, these affidavits suffered from a critical deficiency: they were executed approximately eight years after the alleged no-show dates. The physicians provided conclusory statements about the patient’s non-appearance but failed to explain the basis for their recollection after such a substantial passage of time. They did not reference contemporaneous appointment logs, check-in sheets, scheduling records, or any other documentation that might have refreshed their recollection or provided independent verification of the no-show.

The Appellate Term, Second Department, evaluated whether these delayed affidavits possessed sufficient probative value to establish the IME no-show defense. The court’s analysis focused on the fundamental question of evidentiary reliability when witnesses attempt to testify about specific events from the distant past without supporting documentation or a clear explanation of how they retained such detailed memories.

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.

Legal Significance

This decision reinforces established evidentiary principles regarding the reliability of distant recollections. Courts have long recognized that human memory degrades over time, particularly for routine events that lack distinctive characteristics. When a physician conducts numerous examinations, one patient’s failure to appear blends into a pattern of similar events, making specific recollection increasingly unreliable as years pass.

The ruling aligns with the broader principle that parties bear the burden of preserving evidence contemporaneous with the events in question. In the context of no-fault insurance litigation, this means carriers must implement systematic procedures for documenting IME appointments, including sign-in sheets, scheduling confirmations, and immediate notations when patients fail to appear. Affidavits executed years later, unsupported by contemporaneous records, fail to meet the evidentiary standard required for summary judgment.

This case also reflects judicial skepticism toward boilerplate affidavits that merely state conclusions without explaining their factual basis. Courts demand more than bare assertions; they require affiants to demonstrate personal knowledge and explain how they acquired that knowledge, especially when substantial time has elapsed since the events described.

Practical Implications

Insurance carriers defending IME no-show claims must establish robust documentation procedures immediately when a patient fails to appear. Best practices include maintaining detailed appointment logs with real-time notations, preserving check-in sheets or electronic sign-in records, documenting telephone calls or other communications regarding scheduling, and obtaining contemporaneous affidavits or affirmations from examining physicians while their memories remain fresh.

For providers pursuing claims, this decision offers a valuable defense strategy when carriers assert IME no-show defenses based on stale affidavits. Practitioners should scrutinize the timing of affidavits and challenge any that lack specific factual support or contemporaneous corroboration. Demanding production of appointment records, scheduling logs, and other documentary evidence can expose weaknesses in the carrier’s proof.

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.

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