Charley Deng Called the Wrong Number: How a Botched EUO Reschedule Call Sank a No-Fault Claim

Key Takeaways

• A provider’s claim that it called to reschedule an EUO raised no triable issue of fact because the call went to the wrong person at the wrong number.
• Courts measure rescheduling efforts against the contact instructions printed in the insurer’s EUO scheduling letter — not against good faith.
• An affidavit describing a call to the designated contact at the listed number might have changed the outcome.
• Providers who cannot attend an EUO should respond in writing to the address and contact identified in the letter, and keep proof.

New York no-fault insurance disputes often hinge on seemingly minor procedural details that can make or break a case. Examinations Under Oath (EUOs) represent a critical juncture where healthcare providers must meet strict compliance requirements. When insurers schedule these examinations, they typically provide specific contact information and procedures for any scheduling issues.

The Appellate Term decision in Charles Deng Acupuncture demonstrates how failing to follow these exact instructions can torpedo an otherwise valid claim. This case serves as a stark reminder that in New York No-Fault Insurance Law, precision matters more than good faith efforts when dealing with EUO scheduling requirements.

The Decision

Jason Tenenbaum’s Analysis:

Charles Deng Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 2017 NY Slip Op 51764(U)(App. Term 2d Dept. 2017)

“While plaintiff’s owner asserts that, upon receiving the EUO scheduling letters, he called defendant’s investigator and left a message asking to reschedule the EUOs, plaintiff nevertheless failed to raise a triable issue of fact, since the person plaintiff’s owner allegedly called was not the investigator identified in defendant’s EUO scheduling letter as the person to be called in case of any issue, and the phone number allegedly called was not the same as the phone number set forth in defendant’s EUO scheduling letter.”

Had the affidavit listed the person who should have been called, then a triable issue of fact would have been established?

The Legal Framework Behind EUO No-Show Defenses

An examination under oath is a form of verification authorized by the no-fault regulation (11 NYCRR 65-1.1), and appearance at a properly demanded EUO is a condition precedent to coverage. When a provider or assignor fails to appear at two duly scheduled examinations, the carrier may deny all claims retroactively to the date of loss, provided it follows the regulatory timetable.

On summary judgment, the carrier must prove that the scheduling letters were timely mailed and that the witness failed to appear on both dates. Once that showing is made, the burden shifts to the provider to raise a triable issue of fact. The most common attempted rebuttal is exactly what was offered in Charles Deng: an affidavit claiming the provider tried to reschedule. This decision shows how narrowly the courts read those affidavits — the asserted call has to match the carrier’s own instructions, person and number alike.

This fits a broader pattern in the EUO requirements case law in New York no-fault practice: the appellate courts treat the contents of the scheduling letter as the operative script, and deviations from it as legally meaningless noise. Other EUO compliance decisions confirm that absolute adherence to the insurer’s written instructions — not reasonable mistakes or good-faith efforts — is what counts.

Why This Matters for Providers and Carriers

For medical providers, the decision is a compliance roadmap written in another provider’s losses. A genuine, sworn-to attempt to reschedule counted for nothing because it was directed to the wrong recipient. The safer course is to respond in writing — to the contact and address identified in the scheduling letter — requesting a new date, and to retain fax confirmations, certified mail receipts, or emails. A documented written request to the correct contact creates exactly the triable issue this plaintiff could not manufacture.

For carriers and defense counsel, Charles Deng underscores the value of precise, internally consistent scheduling letters. Because the court held the provider to the letter’s designated contact, the letter itself became the yardstick for the provider’s rebuttal. Sloppy letters with conflicting contact information would hand a provider the very issue of fact that doomed this claim.

For claims professionals evaluating files, the case is a reminder that a “we called to reschedule” entry in a provider’s file does not neutralize a no-show defense unless the call matched the letter’s instructions.

Practice Pointers

• Providers: Diary every EUO date on receipt of the letter. If a conflict exists, write to the named contact at the listed address or number before the scheduled date, and keep proof of transmission.
• Provider counsel opposing summary judgment: An owner’s affidavit must identify whom he called, at what number, and tie both to the scheduling letter. Anything less invites the Charles Deng result.
• Carriers: Identify a single contact person and phone number in the letter and make sure your investigator’s records can confirm no rescheduling request was received from the provider.

Frequently Asked Questions

What happens if a medical provider misses an EUO in a New York no-fault case?

Failure to appear at two properly scheduled examinations under oath breaches a condition precedent to coverage, allowing the insurer to deny the provider’s claims. The carrier still must prove timely, proper scheduling and the non-appearances.

Can a provider defeat an EUO no-show defense by showing it tried to reschedule?

Only if the attempt tracks the insurer’s instructions. In Charles Deng Acupuncture v State Farm, the provider’s owner swore he called to reschedule, but because he called the wrong person at the wrong number — not the investigator and number designated in the scheduling letter — the court found no triable issue of fact.

What is the safest way to reschedule an EUO?

Respond in writing before the scheduled date, directed to the contact person and address or number identified in the EUO scheduling letter, and keep proof of the communication. A documented request to the correct contact is the kind of evidence that can raise a triable issue of fact.

Related Resources

• EUO Requirements in New York No-Fault Insurance Cases — the firm’s cluster hub on examinations under oath
• The firm’s Legal Encyclopedia
• No-Fault Defense practice page
• New York EUO Requirements, When Examination Under Oath Demands Are Untimely
• EUO Defense Not Substantiated, When Insurance Companies Fail to Meet Procedural Requirements
• A lesson on why the failure to attempt a DJ on an EUO no-show can spell doom