An Examination Under Oath (EUO) is similar to, but different than, a deposition. As FindLaw explains, an EUO is a “formal proceeding during which an insured, while under oath. . . is questioned by a representative of the insurer regarding the presented claim.” When a health care professional provides medical treatment to an injured person and accepts his or her assignment of no fault insurance benefits, many insurance companies demand that the medical provider submit to an EUO before the company will pay the claim.
As originally intended, an EUO is one of the contract rights an insurer has to investigate claims in order to determine whether there is any fraud involved. However, ever since the landmark case of State Farm Mutual Auto Ins. Co. v. Mallela, decided by the New York Court of Appeals in 2005, many insurance companies have begun routinely accusing medical providers who present insurance claims of such things as having a fraudulent corporate structure. These insurance companies use an EUO as an overly broad method of obtaining the doctor’s proprietary documents and records.
The insurance company must make a formal demand; i.e., a written request, upon the medical provider to appear for an EUO. The Claims Journal states that the formal demand generally includes such things as the following:
- The name of the medical provider to be examined
- The time and place of the EUO
- A list of documents the provider must produce either prior to the EUO or at the time of it
- The name of the insurance company’s attorney who will conduct the EUO
- A reservation of the insurance company’s right to designate additional people to appear at the EUO, such as the provider’s business associates and/or employees
Insurance companies have the right to demand more than one EUO with the medical provider and/or other people within or associated with his or her business and who have knowledge of any and all aspects of the business. Insurance companies also have the right to focus on different aspects of the provider and his or her business in multiple EUOs.
GoNY Medical Services states that an EUO usually lasts for several hours and may last even longer. The medical provider is required to attend, after receiving proper notice from the insurance company, and may bring his or her own attorney. Unlike in a deposition, however, the attorney is not allowed to raise objections or ask any questions. He or she is only allowed to provide legal advice to his or her own client. The medical provider also is required to bring all documents and records specified by the insurance company.
A court reporter records the entire proceeding. The insurance company’s attorney asks the medical provider questions and the medical provider is under oath to reply truthfully, having been sworn in by the court reporter. The questions are very broad in nature, and generally include such things as the following:
- The provider’s professional background
- The provider’s corporate or other business structure
- The provider’s financial status
- The provider’s criminal arrest and conviction record, if any
- The provider’s civil litigation record, if any, particularly regarding other no fault insurance claims
Failure to Comply
Medical providers have no discretion as to whether or not they submit to an EUO. The underlying contract between the insurance company and its insured invariably specifies that the insured will, upon “reasonable” demand by the company, submit to an EUO. Since the insured assigned his or her benefits to the health care professional in exchange for medical treatment, the medical provider stands in the place of the underlying insured. Failure to comply with an EUO demand can result in a breach of contract, allowing the insurer to deny the claim.
There are, however, limited excuses for a medical provider’s refusal to comply, at least with regard to the initial EUO. Such excuses may include the following:
- A defective EUO demand
- Objection to the time and place of the EUO, if either or both are unreasonable
- Denial of the provider’s right to have his or her own attorney present at the EUO
- Denial of the provider’s claim by the insurance company prior to the time limit in which the provider can present his or her proof of loss
Examinations Under Oath are serious, complex and burdensome. No medical provider ever should submit to one without being accompanied by knowledgeable, experienced legal counsel.