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Surgeon Gets Another Chance for Payment After Coding Error

The Court of Appeal has told a health plan, in effect, “not so fast” after the plan refused to consider a surgeon’s attempt to correct an initial coding error after an alleged emergency surgery.

In 2017, a worker who had group health coverage through her employer went to the hospital with “excruciating back pain.” An emergency department physician called Dr. Adebukola Onibokun to consult on the patient. Dr. Onibokun, a neurosurgeon and owner of San Jose Neurospine (SJN), determined the patient had lumbar disc herniations and performed a two-level lumbar microdiscectomy that same day.

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SJN submitted two claims to Aetna Health of California for reimbursement. Aetna granted the claims only for “non-emergency” surgical services rendered to the patient. According to the allegations relied on by the Court of Appeal, SJN sent a letter within a month of the surgery to “Aetna Provider Appeals” claiming underpayment in an “EMERGENCY SURGERY CASE.” Aetna declined to pay the higher rate applicable to emergency services. Two months later, SJN filed a civil lawsuit against Aetna for its “unjustified failure to pay $75,200 for emergency medical services provided by SJN to [the patient].”

In seeking a dismissal of the suit through a motion for summary judgment, Aetna claimed that SJN submitted two bills on Health Insurance Claim Form 1500 using CPT codes 63030, 63035, and 69990, that these were codes for non-emergency services, that it processed the out-of-network services at 180 percent of the Medicare rate, and applied that amount, $2,783, to the patient’s deductible. Aetna claimed that since SJN did not use the correct codes, it was not entitled to payment at the emergency tier.

SJN opposed the motion, claiming that its second bill was “rebilled as emergency [services] with ‘ER’ placed in number 24C of the [billing] form.”

The trial court judge granted the dismissal and said, “If the doctor doesn’t submit the correct coding on a health insurance claim, he doesn’t get paid for it.”

The Los Angeles-based Court of Appeal in San Jose Neurospine v. Aetna Health of California, however, overturned the trial court judge, saying that there were “triable issues of fact” as to whether SJN rendered and billed for emergency services. (In a motion for summary judgment, a judge may consider only uncontroverted evidence in applying the law; he or she may not “weigh” disputed evidence. That’s the job of a jury.)

In reviving the lawsuit against Aetna, the Court of Appeal pointed out that SJN “set forth the term ‘ER’ three times on the corrected billing form” and said, “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 of fact 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,’” the appellate court continued. “In hospitals, the term ‘ER’ is commonly used and understood. It is a term well known in common parlance, literature and popular culture.” A trier of fact, the appellate court said, could reasonably infer that “ER” on the corrected form referred to the emergency room, that Aetna was consequently on notice that these services were emergency services, and that Aetna was therefore not in a position to claim emergency services were never performed.

The Court of Appeal put the dispute in the context of California’s requirement that healthcare service plans have a dispute resolution process accessible to non-contracting providers for the purpose of resolving medical billing and claims disputes. “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 healthcare service plans make mistakes on initial claims filings and that there must be a method to allow legitimate claims to ultimately be granted.”

In its opinion, the appellate panel explained the need to sometimes look at the bigger picture:

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

Gordon Ownby is CAP’s General Counsel. Questions or comments related to “Case of the Month” should be directed to