Verification, again

A medical report referred to a separate signed informed-consent form, but the provider’s papers did not show that the requested form had been supplied. That omission decided New Horizon Surgical Center v Travelers. The lesson is to reconcile the affidavit with its exhibits—not to leave supporting documents out.

Historical note: New Horizon found an unexplained gap between the claimed production and a specifically requested consent form. It did not find that the patient lacked consent or recommend withholding exhibits. The current verification guide supplies later deadline context.

Last reviewed: September 2026. Original publication date retained.

The missing item was specifically requested

Travelers established timely mailing of its initial and follow-up verification requests and made a prima facie showing that it had not received all requested verification. Its request included the signed informed-consent form.

The surgical center responded with an affidavit stating that all verification had been provided and that a copy was annexed. Among the exhibits was a report referring to a separate comprehensive consent form in the patient’s chart. But that form was not among the documents shown as provided to Travelers.

On March 8, 2019, the Appellate Term, Second Department, reversed the Richmond County Civil Court’s denial of the relevant branch of Travelers’ motion. It granted summary judgment dismissing the complaint because the provider had not raised an issue about full compliance.

The decision does not establish that the patient never consented to treatment or that no signed form existed. It concerns whether the requested document was furnished in the verification process on the evidence presented. Whether the patient consented and whether the insurer received the form are separate questions.

Why the affidavit did not resolve the omission

An assertion that everything was sent must be read with the documents said to demonstrate that fact. Here, the supporting report identified another form, the insurer had requested that form, and the claimed production did not account for it.

The court evaluated what the exhibits showed. Supporting documents allow the assertion of compliance to be checked; withholding them would not resolve the missing form.

Jason’s original commentary below asks how this result fits with cases accepting an affidavit without the same supporting materials. The question is preserved. It is a criticism of outcomes across cases, not an instruction to omit relevant evidence from motion papers.

Four distinct facts in a verification response

The records should distinguish whether a document exists, whether the responding party controls it, whether it was included in the response and whether that response was transmitted. A report that mentions a consent form may address existence. It does not, without more, prove the form was in the packet sent to the carrier.

The Pomona Medical Diagnostic note concerns evidence of mailing a response. Darlington Medical Diagnostics concerns receipt of a request. New Horizon addresses the contents of the response. Treating all three as generic “verification compliance” cases obscures why the evidence succeeded or failed.

Where an item cannot be supplied, preserve the written explanation and any supporting facts. Do not say the item was produced when the actual position is that it is unavailable or disputed. The applicable regulation recognizes qualifying written reasonable justification; New Horizon did not hold that an unexplained omission automatically becomes such a justification.

Comparing New Horizon with the Compas decisions

In Compas v Praetorian, the court found an owner’s affidavit sufficient to raise a factual issue about response mailing on one cause of action. The published opinion did not set out all the affidavit’s contents. It therefore does not prove a broad rule that a bare statement always defeats summary judgment.

In Compas v Travelers, a partial response did not require the insurer to pay or deny on the record presented. Orthoplus Products likewise found verification outstanding despite some production, with requests properly directed to authorized counsel.

These comparisons help separate a disputed mailing from an identified missing enclosure. The difference is evidence, not a recommendation to provide fewer documents.

A useful check before signing an affidavit

Read the requests against the actual response set. Identify each requested item by a description that lets another person locate it. If a report refers to a separate record, confirm whether that record was requested and included. If it was sent separately, preserve the separate transmission record rather than assuming the reader will infer it.

The person signing an affidavit should describe what that person knows and the records supporting the statement. A reusable phrase such as “all verification supplied” cannot explain a discrepancy by itself. A lawyer reviewing the packet should be able to follow the claimed production without guessing which version of the attachments was sent.

This is file-review guidance drawn from the problem exposed in the decision, not a claim that every court requires a particular spreadsheet, delivery method or exhibit format.

Keep prematurity separate from the treatment dispute

New Horizon decided a verification defense to an action for payment. It did not adjudicate a medical-malpractice informed-consent claim, the adequacy of the patient’s consent, or whether the procedure should have been performed.

For present claims, read §§ 65-3.5(o) and 65-3.8(b)(3) with the request type, treatment date, required notice and response history. The qualifying 120-day process has exclusions and a written-reasonable-justification alternative. The current hub below addresses the subsequent denial-timing development.

Original commentary preserved from the archive

When an affidavit with no exhibits stating that Plaintiff complied with the verification, a triable issue of fact is raised. Here, the Plaintiff presented supporting documentation but failed to annex one item. The affidavit stated all verification was sent to Defendant. The result is that the complaint is dismissed.

Now, I agree with the result in this case. How do you reconcile this matter with the consistent denial of summary judgment motions when nothing is submitted with the affidavit?

Connect to the Encyclopedia

• Verification and the 120-day rule: current guide and case directory
• Compas v Travelers: partial responses and contemporaneous objections
• Darlington: a conclusory denial of receiving verification
• Pomona: inadequate proof that a verification response was mailed
• Orthoplus: incomplete production and authorized counsel
• Compas v Praetorian: an owner’s affidavit and a split result

For review of a particular claim or verification dispute, contact the firm. Please use the initial message to describe the issue without sending medical records or other sensitive documents.