More and more, courts are taking aim at no fault insurers who are overstepping their bounds with respect to the Examination Under Oath (EUO) procedure. Recent case law seems to be heading in the direction of protecting physicians and other health care practices from abuses by the insurance carriers during the EUO process.
During the EUO, insurance companies regularly ask for documents such as tax returns, leases, corporate documents, and independent contractor agreements. Recent rulings have stated that the purpose of the EUO process is not the examination of the provider or their corporate status, and that these documents are inappropriate for the purposes of the EUO. The recent district court rulings hold that the insurance company is only entitled to information which is relevant to the verification of the claim in the EUO. Under Malella, as previously held, an insurance company can ask for additional documents if there is a belief of an action tantamount to fraud in the conduct of the medical or professional practice.
This has now become a standard that insurance companies use to deny claims during the claims process. However, courts are increasingly ruling that these issues have to be raised by the insurance carrier in a court action, or in a declaratory judgement from a judge, where there is an independent third party making the determination. The issues should not be raised during the claims process by the insurance carrier and with the insurance carrier being the sole judge as to what is “necessary.”
It is important to note that if there are any objections to requests in an insurance carrier’s EUO letter, they should be raised early on. The insurance carrier needs to be made aware that any inappropriately requested documents will not be provided, so as not to detract from the legitimacy of the claim. Additionally, a continuous delay based upon improper documents, and seeking improper EUO information can cause a claim to be legally sufficient to pursue in court by the doctor or the health care provider.
This seems to be a large shift from the days when insurance carriers generally saw the EUO as a process where they could ask whatever questions they wanted without any restrictions. It is very important for providers to be familiar with what can and cannot be asked for by the insurance company at an EUO, especially if they do not take an attorney who is familiar with these matters with them to the EUO.