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

• Decision Date: 27 February 2020
• Docket Number: 2d Civ. No. B296716
• Citation: 259 Cal.Rptr.3d 257,45 Cal.App.5th 953
• Court: California Court of Appeals Court of Appeals
• Parties: SAN JOSE NEUROSPINE, Plaintiff and Appellant, v. AETNA HEALTH OF CALIFORNIA, INC. et al., Defendants and Respondents.

45 Cal.App.5th 953

259 Cal.Rptr.3d 257

SAN JOSE NEUROSPINE, Plaintiff and Appellant,

v.AETNA HEALTH OF CALIFORNIA, INC. et al., Defendants and Respondents.

2d Civ. No. B296716

Court of Appeal, Second District, Division 6, California.

Filed February 27, 2020

Nordic Star, Nicholas H. Van Parys, for Plaintiff and Appellant.

Raines Feldman, LLP, Richard J. Decker, Marc Berkemeier, Los Angeles and Robert M. Shore, for Defendants and Respondents.

GILBERT, P. J.

It has been said the law is based on technicalities. But technicalities that ignore legislation, common sense, and fairness, the law abhors.

Plaintiff San Jose Neurospine (SJN) appeals a summary judgment entered in favor of defendants Aetna Health of California, Inc.; Aetna Life Insurance Company; and KPMG, LLP (collectively "Aetna"). We conclude there are triable issues of fact whether SJN provided and billed for emergency services and was entitled to reimbursement from Aetna. We reverse and remand.

FACTS

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 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 "non-emergency surgery"; 3) Aetna processed these claims as non-emergency 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 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, 176 Cal.Rptr.3d 279.) 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, 224 Cal.Rptr.3d 479 ( 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 resolved in favor of the party opposing the motion." ( Reid v. Google, Inc . (2010) 50 Cal.4th 512, 535, 113 Cal.Rptr.3d 327, 235 P.3d 988.)

"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, 224 Cal.Rptr.3d 479.) "[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, 224 Cal.Rptr.3d 479.)

"[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, 224 Cal.Rptr.3d 479.) "[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, 224 Cal.Rptr.3d 479.)

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, 87 Cal.Rptr.3d 299, 198 P.3d 86.) " ‘ "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, 31 Cal.Rptr.3d 688.)

Aetna cites YDM , supra , 16 Cal.App.5th 613, 224 Cal.Rptr.3d 479, 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, 224 Cal.Rptr.3d 479, 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, 266 Cal.Rptr. 96 ; Cleveland v. United States (5th Cir. 2006) 457 F.3d 397, 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. (...