Proof of no-show?

In New York no-fault insurance litigation, one of the most frequently employed defenses by insurance carriers is the claim that a healthcare provider or their assignor failed to appear for a scheduled Examination Under Oath (EUO). When insurers deny claims based on alleged EUO no-shows, they typically support their position with affidavits from employees or attorneys stating that the examination was scheduled and the party failed to appear. However, the evidentiary foundation for these no-show claims often rests on minimal documentation, raising important questions about burden of proof and discovery rights.

The challenge for healthcare providers lies in rebutting what may be self-serving statements from insurance company representatives. Unlike medical records or billing documentation that must meet strict authentication requirements, EUO no-show denials often proceed based on unverified assertions from interested parties. This disparity in evidentiary standards has created tension in no-fault litigation, particularly when providers suspect that scheduling letters were never properly mailed or that no-shows are being fabricated to avoid paying legitimate claims.

Case Background: St. Locher Medical, P.C. v IDS Property Casualty Insurance Co.

The Appellate Term’s decision in St. Locher Medical, P.C. v IDS Property Casualty Insurance Co. addresses the evidentiary showing required for insurance carriers to establish EUO no-shows on summary judgment. The court examined whether the insurance company provided sufficient proof that examinations were properly scheduled and that the plaintiff failed to appear. Additionally, the court considered whether denial forms needed to specify the exact dates of scheduled examinations to satisfy notice requirements under New York’s no-fault regulations.

This case represents a common scenario in no-fault litigation: an insurance carrier moving for summary judgment based on EUO no-shows, and a provider challenging both the procedural adequacy of the denial and the substantive evidence supporting the alleged failure to appear.

Jason Tenenbaum’s Analysis

St. Locher Med., P.C. v IDS Prop. Cas. Ins. Co., 2017 NY Slip Op 51732(U)(App. Term 2d Dept. 2017)

“Contrary to plaintiff’s contention, the proof submitted by defendant established that plaintiff had failed to appear for duly scheduled examinations under oath (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 ; Ortho Prods. & Equip., Inc. v Interboro Ins. Co., 41 Misc 3d 143, 2013 NY Slip Op 52054 ). Furthermore, “the failure to set forth the dates of the scheduled examinations in the denial of claim form did not render the denial conclusory, vague, or without merit as a matter of law”

I would love to see someone make a motion to compel the law firm that sent the EUO letters (and represents the carrier on this claim) to comply with a non-party subpoena to substantiate the basis of the no-show. see CPLR 3212(f); NYCCCA 1201. It would be an interesting transcript or set of transcripts.

NYCCCA 1201 (” subpoena and a subpoena duces tecum, and the powers of the court with reference to them, shall be governed by the CPLR, except that they shall be served only within the city of New York or in a county adjoining such city. But the court, upon motion of a party which need not be on notice, may issue either kind of subpoena and permit its service elsewhere outside the city of New York if satisfied that the interests of justice would be served thereby.”

Legal Significance: Discovery Rights and Non-Party Subpoenas

The St. Locher decision illustrates a procedural imbalance in no-fault litigation that warrants closer examination. While the court found the insurer’s evidence sufficient to establish the EUO no-show, it leaves open strategic questions about how providers can effectively challenge such claims when they suspect fabrication or procedural irregularities.

Jason Tenenbaum’s suggestion regarding CPLR 3212(f) and non-party subpoenas represents a potentially valuable but underutilized discovery tool. CPLR 3212(f) allows courts to deny summary judgment or order continuances when facts essential to justify opposition may exist but cannot be stated. This provision could permit providers to conduct targeted discovery into the law firm’s actual practices for scheduling EUOs, maintaining records, and documenting no-shows.

Similarly, NYCCCA 1201’s provision allowing courts to authorize service of subpoenas outside New York City when “the interests of justice would be served” could enable providers to depose non-party witnesses, such as the individuals who allegedly scheduled the EUOs or maintained attendance records. Such discovery could reveal systemic deficiencies in record-keeping, contradictions in testimony, or patterns suggesting improper denial practices.

The court’s holding that denial forms need not specify exact examination dates reflects a relatively lenient standard for insurers. As long as the denial provides sufficient notice of the basis for the claim denial—here, failure to appear for EUOs—courts will not require technical precision in the denial language. This standard prioritizes substance over form but may make it more difficult for providers to identify specific factual disputes warranting discovery.

Practical Implications for No-Fault Practitioners

Attorneys representing healthcare providers facing EUO no-show denials should consider several strategic approaches. First, carefully scrutinize the carrier’s proof of mailing for the EUO scheduling letters, looking for gaps in the business records foundation or lack of personal knowledge by affiants. Second, evaluate whether CPLR 3212(f) relief is appropriate when the carrier’s submissions raise questions about their scheduling and documentation practices.

Third, consider using non-party subpoenas strategically to obtain records from the law firm that sent the EUO letters, particularly when representing multiple providers with claims against the same carrier. This approach could uncover valuable evidence about the carrier’s standard practices and potentially reveal patterns of questionable denials.

Finally, providers should maintain their own detailed records of any communications with insurers regarding EUO scheduling, including phone calls, correspondence, and attempts to appear or reschedule. Such documentation can prove critical when challenging alleged no-shows.

Key Takeaway

While New York courts have established that insurance carriers can prove EUO no-shows through employee affidavits and that denial forms need not specify exact examination dates, providers are not without recourse. Strategic use of CPLR 3212(f) and non-party subpoenas may allow providers to uncover evidence challenging the insurer’s documentation practices, particularly when systemic issues or patterns of improper denials are suspected.

Related Articles

• How to Challenge EUO No-Show Denials: When Improper Notice Can Reverse Insurance Denials in New York
• Personal Knowledge Requirements for EUO Non-Appearances: NY Legal Standards
• Understanding EUO Denial: When Insurance Companies Can Substantiate Coverage Denials
• Understanding EUO Requirements in New York No-Fault Insurance Cases
• New York No-Fault Insurance Law