Metropolitan News-Enterprise


Friday, February 28, 2020


Page 1


Court of Appeal:

Judge Erred in Granting MSJ Based on Technicality

Gilbert Says Triable Issues Exist—but Casts Doubt on Entitlement of Insurer to Refuse to Pay for Emergency Services to Insured Because of Wrong Code-Number on the Medical Facility’s Bill


By a MetNews Staff Writer


The Court of Appeal for this district held yesterday that a judge erred in granting summary judgment in favor of defendant Aetna Health of California which refused to pay emergency services provided to its insured by the plaintiff, a medical facility, because the bill contained the service code “21” instead of “23” which denotes emergency care.

“It has been said the law is based on technicalities,” Presiding Justice Arthur Gilbert of Div. Six wrote. “But technicalities that ignore legislation, common sense, and fairness, the law abhors.”

The opinion reverses a decision of Ventura Superior Court Judge Henry J. Walsh who said, at the time of the hearing on the motion:

“If the doctor doesn’t submit the correct coding on a health insurance claim, he doesn’t get paid for it.”

Reference to ‘E.R.’

A corrected billing indicated that $46,000 was claimed for “E.R.” services. Gilbert said there are “triable issues concerning what a medical insurance company should know and do when it sees such an ‘ER’ reference” but made it clear, though not explicit, that, on remand, the case should resolved in favor of the plaintiff, San Jose Neurospine (“SJN.”) He said:

 “The term ‘ER’ is a well-known abbreviation for ‘emergency room.’…In hospitals, the term ‘ER’ is commonly used and understood. It is a term well known in common parlance, literature, and popular culture.”

Gilbert made note of “ER,” a “medical drama television series” (on NBC from 1994 to 2009), and added:

“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.”

 He noted:

“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.”

Code Section Cited

The jurist pointed to Health & Safety Code §1371.4(b) which provides:

“A health care service plan...shall reimburse providers for emergency services and care provided to its enrollees....”

He commented:

“This is a remedial statute that must be interpreted liberally to promote the underlying legislative goal….That goal is to provide payment for emergency services actually provided notwithstanding a mistake in a billing code….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 then merely denied the claim solely based on a doctor’s incorrect billing code reference.”

The case is San Jose Neurospine v. Aetna Health of California, Inc., B296716.

Suspended Attorney

Westlake Village attorney Nicholas H Van Parys represented SJN. Argument was held on Jan. 8, two days before he went on a 60-day suspension, on order of the California Supreme Court, as a condition of probation in connection with improper loan modification services.

The lawyers for Aetna were Richard J. Decker, Marc Berkemeier and Robert M. Shore of the Century City firm of Raines Feldman, LLP.

Walsh in 2016 received a public admonishment from the Commission on Judicial Performance because he received contributions in connection with his 2012 reelection campaign from more than 150 lawyers who appeared before him of $100 or more and didn’t report receipt of the funds. His excuse was that he didn’t think a report had to be made if the contributions came after the election.


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