The IME Recollection Issue: Proving an IME No-Show Years After the Missed Exam

Key Takeaways

• The Appellate Term, First Department denied an insurer summary judgment because its IME doctor’s affirmation was conclusory — she never explained how, two years later, she remembered the assignor failing to appear.
• Competent proof of an IME no-show requires either personal knowledge of the nonappearance or a described office procedure for documenting no-shows that the affiant relied on.
• The longer the gap between the missed exam and the affidavit, the more foundation the affiant must supply.
• Carriers should build no-show documentation at the time of the missed appointment, not at motion practice years later.

Understanding IME No-Show Requirements: The Recollection Standard

Independent Medical Examinations (IMEs) are a critical component of New York No-Fault Insurance Law, allowing insurance companies to verify the medical necessity of treatments. However, when insurers claim a patient failed to appear for a scheduled IME, they must meet specific evidentiary standards to successfully defend against no-fault claims.

The Appellate Term’s decision in Utica Acupuncture highlights a fundamental issue that frequently arises in no-fault litigation: insurers attempting to dismiss cases based on alleged IME no-shows without providing adequate proof. This case demonstrates the importance of proper documentation and recollection when insurance companies seek to deny coverage based on missed appointments.

The Decision

Jason Tenenbaum’s Analysis:

Utica Acupuncture P.C. v Amica Mut. Ins. Co., 2017 NY Slip Op 50331(U)(App. Term 1st Dept. 2017)

“Defendant-insurer’s motion for summary judgment dismissing the underlying first-party no-fault action should have been denied, inasmuch as it failed to submit competent proof of the assignor’s nonappearance at scheduled independent medical examinations (IMEs). The conclusory affirmation of defendant’s IME doctor lacked probative value, since she failed to adequately state the basis of her recollection, some two years later, that the assignor did not appear on the scheduled IME dates”

(1) Personal knowledge

(2) Some procedure about no-shows being notated or a review of file and based upon procedure, affiant can affirmatively state the assignor failed to appear.

The Legal Framework: Why the IME No-Show Defense Lives or Dies on Foundation

The IME no-show defense is one of the most powerful tools in a no-fault carrier’s kit. Attendance at properly scheduled IMEs is a condition of coverage under the standard policy endorsement, so a proven failure to appear at two scheduled exams can defeat the claim. But because the defense is so potent, courts police its proof carefully.

To win summary judgment on an IME no-show, the carrier generally must establish two distinct things with admissible evidence: that the IME scheduling letters were properly mailed to the assignor, and that the assignor failed to appear on each scheduled date. Utica Acupuncture is about the second element — and about what an affiant must say before a court will credit a memory of a non-event.

That last point deserves emphasis. A no-show is the absence of something happening. Two years later, no examiner genuinely “remembers” that a particular stranger did not walk into the office on a particular day. The affidavit therefore has to explain the mechanism of the recollection — and the Appellate Term identified the two acceptable mechanisms reflected in the numbered points above: actual personal knowledge, or a contemporaneous office procedure (no-show entries in a log, a file notation made when the appointment lapses) that the affiant reviewed and can describe.

Why This Matters for Carriers, Providers, and Claimants

For carriers and IME vendors, the decision is a documentation mandate. The IME facility should have a written procedure under which no-shows are recorded at the time they occur, and the eventual affiant — doctor or office manager — should recite that procedure and state that the file reflects its operation. An affirmation that simply announces “the assignor did not appear,” signed years after the fact, is exactly what the First Department called conclusory.

For medical providers opposing these motions, the recollection gap is a primary line of attack. Scrutinize the date of the affidavit against the date of the alleged no-show. If the affiant does not explain how the nonappearance was recorded or why the memory is reliable, the motion is vulnerable regardless of what actually happened that day.

For injured claimants, the case is a reminder that the no-show defense is technical on both ends — carriers must prove the letters were actually mailed and the absence properly documented, and sloppy proof on either element keeps the claim alive.

Practice Pointers

• Carriers: capture the no-show in writing the day it happens — a sign-in sheet, a no-show log, a letter to the carrier from the IME facility. The affidavit should attach or describe that record.
• Carriers: if the affiant relies on office procedure rather than personal memory, the affidavit must describe the procedure; a bare reference to “my review of the file” invites denial.
• Providers: demand the underlying no-show documentation in discovery. Its absence undercuts both the affidavit’s foundation and the affiant’s credibility at any framed-issue hearing.
• Both sides: stale affidavits are a recurring problem — compare the affidavit executed eight years before the no-show line of cases.

Related Resources

• IME no-show affidavit executed 8 years prior to the no show
• Ime no show loses on lack of personal knowledge allegatiob
• Another proof of the no show
• IME no-shows in New York no-fault cases — the firm’s cluster hub
• The firm’s Legal Encyclopedia
• No-Fault Defense practice page

Frequently Asked Questions

What does an insurer have to prove for an IME no-show defense?

The carrier must show with admissible evidence that the IME scheduling letters were properly mailed to the assignor and that the assignor failed to appear on the scheduled dates. Both elements require competent affidavits — proof of a mailing practice for the letters, and a properly founded account of the nonappearance.

Why was the IME doctor’s affirmation rejected in Utica Acupuncture?

Because it was conclusory. The doctor swore, roughly two years later, that the assignor did not appear, but never explained the basis of that recollection — no personal memory she could justify and no described office procedure for recording no-shows that she had reviewed.

How can an affiant competently swear that someone failed to appear years earlier?

Two ways: genuine personal knowledge of the nonappearance, or reliance on a standard office procedure under which no-shows are notated in the file at the time, with the affidavit describing that procedure and the affiant’s review of the record it produced.