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Date: 03-01-2020

Case Style:

San Jose Neurospine v. Aetna Health of California, Inc.

Case Number: B296716

Judge: Gilbert, P.J.

Court: California Court of Appeals Second Appellate District, Division Six on appeal from the Superior Court, County of Ventura

Plaintiff's Attorney: Nicholas H Van Parys

Defendant's Attorney: Richard J. Decker, Marc Edward Berkemeier and Robert Michael Shore

Description: On April 10, 2017, S.H. went to a hospital emergency room
with “excruciating back pain.” A hospital emergency room
physician called Doctor Adebukola Onibokun for assistance.
Onibokun is the owner of SJN, a company that provides medical
treatment and care. Onibokun consulted with S.H. and
determined she had “lumbar disc herniations at 2 levels.” On the
same day, he performed “a two level lumbar microdiscectomy”
surgery on S.H.
S.H. was employed by the company KPMG, which funded a
group health insurance policy for its employees that was
administered by Aetna. That plan contained coverage for medical
emergency services.
SJN submitted two claims to Aetna for reimbursement for
the medical services provided to S.H. Aetna granted the claims
only for “non-emergency surgery” and did not provide
reimbursement to SJN for emergency medical services.
SJN claims that almost one month after S.H.’s surgery, it
sent an appeal letter to “Aetna Provider Appeals,” claiming
reimbursement because of “underpayments on AN EMERGENCY
SURGERY CASE.” Again Aetna did not pay SJN for the
emergency services it provided for S.H.
Two months after sending the letter, SJN filed a civil action
against Aetna alleging seven causes of action. It stated, “This
action arises out of Aetna’s unjustified failure to pay $75,200 for
emergency medical services provided by SJN to [S.H.],” a “patient
insured by Aetna.” SJN alleged: 1) Aetna operates a “health care
service plan” as described in the Knox-Keene Care Service Plan
Act of 1975 (Knox-Keene Act) (Health & Saf. Code, § 1371.4,
subd. (b)); 2) SJN submitted “valid claims for reimbursement to
3
Aetna in a timely manner”; and 3) Aetna denied the claims and
“refuse[d] to make payment.”1
In its first cause of action, SJN alleged Aetna violated
section 1371.4. Section 1371.4, subdivision (b) provides, in
relevant part, “A health care service plan . . . shall reimburse
providers for emergency services and care provided to its
enrollees . . . .” In its second cause of action, SJN alleged Aetna
breached an implied contract based on its “prior dealing” with
Aetna by not paying for the emergency medical services it
rendered to a patient covered by Aetna’s health care service plan.
After filing its answer, Aetna filed a motion for summary
judgment or, alternatively, summary adjudication of issues.
Aetna claimed: 1) SJN “submitted two bills on Health Insurance
Claim Form 1500” using “CPT [Current Procedural Terminology]
codes 63030, 63035, and 69990”; 2) these were codes for “nonemergency surgery”; 3) Aetna processed these claims as nonemergency services; 4) Aetna “processed the out-of-network
services at the 180% of the Medicare rate” pursuant to S.H.’s
health plan and “applied the entirety of that amount, $2,783.22,
to [S.H.’s] deductible.” Aetna claimed that because SJN did not
use the correct codes, SJN was not entitled to payment for
emergency services and all its causes of action had to be
dismissed.
SJN opposed summary judgment claiming, among other
things, that its second bill was “rebilled as emergency [services]
with ‘ER’ placed in number 24C of the [billing] form.” SJN
attached deposition testimony; the declarations of its counsel,
S.H., and S.H.’s doctor; and other documentary evidence. It
1 All statutory references are to the Health and Safety Code
unless otherwise stated.
4
claimed that evidence proved these services were emergency
services and that Aetna was responsible for paying for them.
At the hearing the trial judge said, “If the doctor doesn’t
submit the correct coding on a health insurance claim, he doesn’t
get paid for it.” The court granted Aetna’s motion for summary
judgement. It also issued a summary adjudication of issues order
with findings that each of SJN’s causes of action could not be
sustained.
DISCUSSION
Triable Issues of Fact
SJN claims there are triable issues of fact as to whether it
rendered and billed for emergency services and was entitled to
reimbursement from Aetna. We agree.
Summary judgment provides courts with “a mechanism to
cut through the parties’ pleadings in order to determine whether,
despite their allegations, trial is in fact necessary to resolve their
dispute.” (Collin v. CalPortland Co. (2014) 228 Cal.App.4th 582,
587.) A defendant may obtain summary judgment by showing
one or more elements of plaintiff’s cause of action is missing or
that there is a complete defense to the cause of action. (Ibid.)
“ ‘On appeal, the reviewing court makes “ ‘an independent
assessment of the correctness of the trial court’s ruling [regarding
summary judgment], applying the same legal standard as the
trial court in determining whether there are any genuine issues
of material fact or whether the moving party is entitled to
judgment as a matter of law.’ ” ’ ” (YDM Management Co., Inc. v.
Sharp Community Medical Group, Inc. (2017) 16 Cal.App.5th
613, 622 (YDM).) “Our task is to determine whether a triable
issue of material fact exists.” (Ibid.) “[A]ny doubts as to the
propriety of granting a summary judgment motion should be
5
resolved in favor of the party opposing the motion.” (Reid v.
Google, Inc. (2010) 50 Cal.4th 512, 535.)
“Under state and federal law, emergency services and care
‘shall be provided to any person requesting the services or care’
by any licensed health facility that has appropriate facilities and
qualified personnel.” (YDM, supra, 16 Cal.App.5th at p. 623.)
“[T]he Knox-Keene Act imposes a requirement that health care
service plans must reimburse a provider who has provided
emergency services or care to a health care service plan’s
enrollee.” (Id. at p. 624.)
“[P]ursuant to section 1300.71 of title 28 of the California
Code of Regulations, a health service plan must reimburse a
noncontracted provider for ‘the reasonable and customary value’
of emergency services provided to the plan’s enrollee.” (YDM,
supra, 16 Cal.App.5th at p. 625.) “[M]edical providers use CPT
codes to describe and communicate the nature of the medical
services that have been provided to a patient.” (Id. at p. 627.)
State law substantially limits the authority of health care
service plans to deny claims for emergency services. (Prospect
Medical Group, Inc. v. Northridge Emergency Medical Group
(2009) 45 Cal.4th 497, 504.) “ ‘ “Payment for emergency services
and care may be denied only if the health care service plan
reasonably determines that the emergency services and care were
never performed . . . .” ’ ” (Ibid., italics added.) Providers of
emergency medical services whose claims are denied may, in
appropriate cases, pursue claims for reimbursement based on an
“implied-in-law right to recover for the reasonable value of [their]
services.” (Bell v. Blue Cross of California (2005) 131 Cal.App.4th
211, 221.)
6
Aetna cites YDM, supra, 16 Cal.App.5th 613, and notes the
claimant did not use the proper codes for emergency services in
its billing claims. The appellate court held the claimant was not
entitled to reimbursement for emergency services and summary
judgment was proper. Aetna contends that because SJN did not
use the correct codes for emergency services, it has no cause of
action for reimbursement.
In YDM, the court said the claimant ‘s billing codes did not
indicate “in any way that the services it provided were ‘emergency
services.’ ” (YDM, supra, 16 Cal.App.5th at p. 633, fn. 13, italics
added.) SJN claims YDM is distinguishable because here it filed
a “corrected claim” indicating that the services it provided were
emergency room services. It contends that, even though it may
not have used the correct CPT code numbers, a trier of fact could
reasonably infer Aetna was on notice these services were
emergency service claims that should have been granted.
In the corrected billing, SJN sought compensation for
$46,500 worth of services in the “ER”; $24,500 worth of services
in the “ER”; and $4,200 worth of services also in the “ER.” It set
forth the term “ER” three times on the corrected billing claim
form. The trial court found there were no triable issues of fact
because there was no showing what “ER” means.
But there are triable issues of fact regarding the
reasonable, well-understood meaning of “ER” on the corrected
claim form. And there are triable issues concerning what a
medical insurance company should know and do when it sees
such an “ER” reference.
The term “ER” is a well-known abbreviation for “emergency
room.” (See, e.g., Sigala v. Goldfarb (1990) 222 Cal.App.3d 1450,
1453; Cleveland v. United States (5th Cir. 2006) 457 F.3d 397,
7
400; United States ex rel. Parikh v. Citizens Medical Center (S.D.
Tex. 2013) 977 F.Supp.2d 654, 666-667; Kasongo v. United States
(N.D. Ill. 2007) 523 F.Supp.2d 759, 776.) In hospitals, the term
“ER” is commonly used and understood. It is a term well known
in common parlance, literature, and popular culture. (MerriamWebster’s Collegiate Dict. (10th ed. 1999) p. 1382; American
Heritage Dict. (3d college ed. 2000) p. 465; ER (medical drama
television series).) If medical professionals and the public
understand what ER means, there is a reasonable inference that
those in the medical insurance industry also understand its
meaning.
A trier of fact could reasonably infer: 1) the “ER” initials on
the corrected billing form referred to the emergency room, 2)
Aetna was consequently on notice that these services were
emergency services, and 3) Aetna was therefore not in a position
to claim emergency services “were never performed.” (Prospect
Medical Group, Inc. v. Northridge Emergency Medical Group,
supra, 45 Cal.4th at p. 504.) If Aetna could not determine that
emergency services “were never performed,” that would support
SJN’s claim that Aetna improperly denied its emergency medical
services claim. (Ibid.; § 1371.4, subd. (c).)
Aetna notes that it filed objections to the declarations SJN
filed in opposition to summary judgment. The trial court
sustained them, but they are not part of the record. But Aetna’s
objections to SJN’s declarations are, in fact, part of the record
that SJN produced for this appeal. Aetna’s response to SJN’s
separate statement of undisputed facts sets forth its objections to
those declarations. We have reviewed those objections and
conclude that many of Aetna’s objections did not state valid
grounds to exclude relevant and admissible evidence contained in
8
SJN’s declarations. At oral argument, counsel for SJN claimed
the trial court did not sustain Aetna’s objections. To resolve this
dispute, we have taken judicial notice of those relevant trial court
documents. (Cal. Rules of Court, rule 8.55(a)(1); American
Contractors Indemnity Co. v. County of Orange (2005) 130
Cal.App.4th 579, 581, fn. 1.) The record shows that the trial
court incorrectly sustained a number of objections or did not
consider relevant and admissible evidence in the declarations of
SJN’s counsel, S.H., and Onibokun.
Aetna claims there was no admissible evidence to show
that SJN’s services were emergency services. But SJN’s counsel
filed a declaration attaching a portion of the deposition testimony
of Aetna’s employee Regina Devrinskas. Counsel declared that
she was “Aetna’s Person Most Knowledgeable.” In her
deposition, Devrinskas discussed the initial SJN claim and the
corrected claim. She said, among other things, “So that’s the
claim we initially used. And then [SJN] rebilled with the [billing
code] 21 and E.R. to indicate that it was an emergency.” (Italics
added.)
Devrinskas was asked, “So would it be fair to say that the
provider in this case submitted his claim and then resubmitted it
to identify it as an emergency room claim?” (Italics added.) She
answered, “In this instance, yes, but the claim had already been
processed.” (Italics added.) Her testimony is admissible
evidence. (YMD, supra, 16 Cal.App.5th at pp. 630-631.) A trier
of fact could reasonably infer this portion of her testimony,
coupled with the “ER” references on the claim form, supported
SJN’s position that Aetna was on notice that SJN provided
emergency services.
9
SJN produced additional evidence showing these services
were emergency services. Patients may testify from their own
personal knowledge about why they went to the hospital, and a
patient’s doctor may testify about the type of treatment the
patient received. (Evid. Code, § 800; People v. Becerrada (2017) 2
Cal.5th 1009, 1032; People v. Lewis (2001) 26 Cal.4th 334, 356;
Schreiber v. Estate of Kiser (1999) 22 Cal.4th 31, 39; Bowman v.
Motor Transit Co. (1930) 208 Cal. 652, 655; Gunn v. Employment
Development Dept. (1979) 94 Cal.App.3d 658, 664, fn. 6 [there is
usually “no better evidence of the state of one’s health” than the
medical opinions from the patient’s treating doctor].)
In her declaration, S.H. said that she went to the
“Emergency Room with excruciating back pain, lower extremity
weakness and pain, and the inability to walk.” She said she
“underwent an emergency microdiscectomy.” She declared, “I felt
without immediate emergency care, I would suffer a permanent
injury or death.”
S.H. was not a medical expert. But she was in a position to
know from her own personal knowledge why she went to the
emergency room, her symptoms, and what she was feeling at that
time. (Evid. Code, § 800; People v. Becerrada, supra, 2 Cal.5th at
p. 1032; Bowman v. Motor Transit Co., supra, 208 Cal. at p. 655.)
Onibokun declared that he was the doctor who “performed
the emergency medical procedures at issue in this case in the
emergency room.” (Italics added.) “On April 10th, 2017, I was
called by the El Camino Hospital Emergency Room physician to
consult on patient S.H.” He said, “The patient was emergently
taken to the operating room on the same day and she underwent
a two level lumbar microdiscectomy. The surgery resulted in
immediate and significant improvement of her symptoms and she
10
was able to be discharged home the day after surgery.” (Italics
added.) Onibokun was qualified to testify about the nature of the
medical services he performed for his patient. (Gunn v.
Employment Development Dept., supra, 94 Cal.App.3d at p. 664,
fn. 6.)
Onibokun also declared that due to a mistake the services
were coded under “service code 21” when they should have been
coded under “service code 23 for emergency.” He said SJN’s
corrected billing to Aetna showed “the services were emergency
services by indicating an ‘ER’ in column 24c ‘EMG.’ ” (Italics
added.) Aside from citations to billing code numbers, Aetna has
not cited to any portion of the record that would refute the claim
that SJN provided emergency services. Nor has it made any
showing that “ER” means anything other than emergency room.
In his declaration, SJN’s counsel said that one month after
the surgery, SJN sent an “appeal letter” to Aetna “indicating the
services were emergency services.” A copy of that letter to the
“Aetna Provider Appeals/Dispute Resolution” was attached as an
exhibit to his declaration. The letter indicates it was a claim
involving “underpayments on AN EMERGENCY SURGERY
CASE.”
But the declaration of SJN’s counsel did not state sufficient
facts to lay a foundation for the admissibility of this appeal letter,
and the letter contained hearsay. Counsel indicated that he had
personal knowledge about that appeal. But he did not state
sufficient foundational facts to authenticate the document other
than stating he was SJN’s lawyer. He did not state whether he
was familiar with SJN’s operations and procedures, whether he
personally knew what treatment S.H. received, whether he had
11
participated in the decision to appeal, or how he would personally
know that such an appeal was authorized by SJN.
But the issue about this appeal letter was also raised in
Onibokun’s declaration. He said that “[d]uring [the first week of
the month after the surgery], [SJN] also sent in an emergency
surgery underpayment appeal letter to Aetna which clearly
explains the emergency nature of the services provided.” (Italics
added.) Onibokun testified in his earlier deposition that appeals
are handled by “[his] billing company” and he did not review the
wording of the appeal letter before it was sent to Aetna. But
because Onibokun was both SJN’s owner and the doctor who
performed the services, he was in a position to know whether
SJN authorized an appeal for his services, the grounds and
nature of the services provided and claimed, and whether SJN
was underpaid.
Onibokun’s declaration refers to the exhibit containing the
appeal letter.2 Onibokun was in the position to identify it as the
appeal SJN authorized because of the specific confidential
medical and personal content in the letter that only he as the
treating physician would know about. (Evid. Code, § 1421.)
Aetna has not shown why Onibokun could not testify about why
such an appeal should prevail, nor has it made any showing that
it was not aware of that appeal. Although the appeal letter
contains some hearsay, Aetna has not shown why it could not be
admitted for the non-hearsay purpose of showing Aetna was on
notice that SJN was again claiming that it provided emergency
services. (Weathers v. Kaiser Foundation Hospitals (1971) 5
Cal.3d 98, 109; People v. Jimenez (1995) 38 Cal.App.4th 795, 802,
2 Onibokun described the appeal letter as exhibit C, but he
was apparently referring to exhibit D which contains that letter.
12
fn. 11; People v. Harvey (1991) 233 Cal.App.3d 1206, 1220; People
v. Fields (1998) 61 Cal.App.4th 1063, 1069.)
Yet even aside from whether the appeal letter is admitted,
Aetna has not shown why Onibokun, as SJN’s owner and the
treating doctor, could not testify that SJN appealed the denied
claim for his emergency services and Aetna thereafter did not pay
him.
SJN notes that, during the hearing on the summary
judgment motion, the trial court said, “If the doctor doesn’t
submit the correct coding on a health insurance claim, he doesn’t
get paid for it.” But the evidence about the coding is disputed.
Aetna produced evidence that it determined that SJN did not use
correct coding. But there was deposition testimony from
Devrinskas that the billing did contain a code that refers to the
emergency room. She was asked, “So in this case the patient did
present to the emergency room, though, as far as you know,
correct?” Devrinskas: “Only by the claim. They billed a 450.”
(Italics added.) She was asked, “Which means it was the
emergency room?” Devrinskas: “Right.” She also said, however,
that the form did not contain the references to the authorization
for “surgical procedures.” From this testimony a trier of fact
could find that, notwithstanding mistakes in SJN’s billing code
filings, there was a reference to a code that correctly identified
the “emergency room.”
Aetna claimed its responsibility for paying for SJN’s
emergency services ended when it determined that SJN
submitted incorrect billing codes notwithstanding SJN’s efforts to
later correct the claim and appeal. But the California Legislature
requires health care service plans to have “a dispute resolution
mechanism” that “is accessible to noncontracting providers for
13
the purpose of resolving billing and claims disputes.” (§ 1367,
subd. (h)(2).) That demonstrates that the Legislature did not
intend to end responsibility for paying claims at the initial claims
filing stage. It knew that doctors and health care service plans
make mistakes on initial claim filings and that there must be a
method to allow legitimate claims to ultimately be granted.
Consequently, where the health care service plan knows
that emergency services were in fact provided, a coding mistake
on a billing claim does not automatically excuse or terminate its
duty to pay for the services under section 1371.4, subdivision (c).
The statute provides, in relevant part, “Payment for emergency
services and care may be denied only if the health care service
plan . . . reasonably determines that the emergency services and
care were never performed . . . .” (§ 1371.4, subd. (c), italics
added; see also Bell v. Blue Cross of California, supra, 131
Cal.App.4th at pp. 215-216.)
This is a remedial statute that must be interpreted
liberally to promote the underlying legislative goal. (Clemente v.
Amundson (1998) 60 Cal.App.4th 1094, 1102.) That goal is to
provide payment for emergency services actually provided
notwithstanding a mistake in a billing code. (Prospect Medical
Group, Inc. v. Northridge Emergency Medical Group, supra, 45
Cal.4th at p. 504; Allstate Fire & Cas. Ins. Co. v. Perez ex rel.
Jeffrey Tedder, M.D., P.A. (Fla. Ct.App. 2013) 111 So.3d 960, 964
[insurer may have to look beyond the CPT code billing to
determine whether the doctor’s services must be reimbursed].) A
trier of fact could reasonably infer that a health insurance
company could violate section 1371.4, subdivision (c), if it: 1)
knew or was on notice that emergency medical services were
provided; or 2) ignored evidence that they were provided, and
14
then merely denied the claim solely based on a doctor’s incorrect
billing code reference. There are triable issues of fact.

Outcome: The judgment is reversed and the case is remanded for further proceedings consistent with this opinion. The trial court’s summary adjudication order involving issues one and two, which dismissed SJN’s first and second causes of action, is reversed and vacated. Costs on appeal are awarded to appellant.

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