I recently had the pleasure of participating in an administrative law judge (ALJ) hearing. Novitas, the Medicare administrative contractor had denied the E/M code 99291, critical care.

The case was appealed to the qualified independent contractor, who also believed that the care, in this case, did not meet the CMS and CPT definitions of critical care. Subsequently, the case was appealed to the administrative law judge. The encounter occurred in an emergency room in 2013 and was initially denied in 2014. It has taken five years to get to an ALJ hearing — but that’s for another discussion.

Allow me to give you a little background on the patient. He was a 76-year-old gentleman who presented with shortness of breath for a week with increasing productive cough for a day. He has a past medical history of CAD s/p CABG, atrial fibrillation s/p pacemaker and COPD. He was on multiple medications, including ASA, Torsemide, Bisoprolol, and Spironolactone. He was brought straight back from the waiting room to an ED bed. The initial vital signs included: BP 100/74, P 120-140 and irregularly irregular, RR 22, T 97.4 oral and sats 97% on room air. The triage nurse noted he was in distress with pursed-lip breathing and put him on O2. The ED physician met the patient in the room and also noted he was in distress. EKG showed atrial fibrillation with rapid ventricular response. Chest X-ray demonstrated bilateral lower-lobe pneumonia, his WBC was 26.9, and his proBNP was 18,000. He was treated with Cardizem 20 mg IVP and a Cardizem drip at 10 as well as Levaquin 500 mg IV and judicious IVF. His BP dropped to 90/70 with a pulse 80-100. The ED physician spoke to the hospitalist, and he was admitted to the ICU.

I presented all of this to the judge. He thought for a moment and told me he only had one question, “What did the doctor do? I see the nurses drew labs, checked vitals, pushed meds and transported the patient to the ICU. But what did the doctor actually do?”

It took a minute to register. Was the ALJ really asking me that question?

I started to get a little angry. How could he not see that the patient was complex and critically ill? Given his presentation and comorbidities, he was at high risk for morbidity and mortality. The physician had to think through multiple high-risk differential diagnoses, consider how to treat, the implications of treatment and management going forward. In essence, the physician had to think critically, and this particular case involved high complexity medical decision making.

So I reviewed with the judge the differential diagnosis of his presenting complaints including: decompensated CHF, pneumonia, COPD exacerbation, atrial fibrillation, another unstable cardiac arrhythmia, pulmonary embolus, electrolyte abnormalities, acute kidney injury, and sepsis — among others.

I explained that the physician needed to obtain a comprehensive history and examination quickly and efficiently to narrow the differential diagnosis and order the correct tests and at the same time decide on appropriate and timely interventions. I reviewed the actions of diltiazem and how in this patient trying to maintain the BP while reducing the heart rate and avoiding tipping him over in florid CHF while managing what was likely (but not documented) sepsis.

The judge paused for a bit, considering what I had said. He was not convinced stating, “I understand all that, but what did he physically do?”

OK, I was now hot under the collar. Steaming mad. Does the judge not give any weight to the physicians’ history and physical exam, review of the records, thought processes, and treatment? Should I start yelling? I was standing on my chair, pulling out my hair, but speaking calmly and rationally on the phone to the judge.

“Your Honor, much of the work of physicians is cognitive. Critical care involves medical decision making of high complexity to assess, manipulate, and support vital organ system failure and/or to prevent further life threatening deterioration in the patient’s condition. In this case, the physician took a history, examined the patient, ordered tests, intervened chemically, and manipulated BP and HR. In some critically-ill patients, additional procedural interventions such as intubation or central line are needed.”

The judge lit up. “Yes, the doctor did not DO any procedures, so how can this be critical care.”

I thought I was going to lose it. I was squeezing that little tension ball with all my might. I think I actually bit my tongue.

“Your Honor, when we do procedures such as those, they are separately coded and billable from the E/M code for critical care.”

I was tempted to quote Harvey Cushing: “I would like to see the day when somebody would be appointed surgeon who had no hands, for the operative part is the least part of the work.”

“Oh, OK.” The judge did not have a clue how codes were assigned or what the codes meant.

And we moved on.

I think this case highlights the lack of understanding and dare I say respect, for physicians knowledge, training, and medical decision making by the non-clinical administrative side of health care. Physicians are well trained. Years of education and residency and exposure to multiple patients gives us a knowledge and skill set that is not in the quiver of the non-physician. Physicians then process that information in two distinctive but overlapping ways, intuitive and analytic. The intuitive approach is automatic, made as soon as we walk in the patient’s room. Are they sick or not sick?

Think Dr. House. Most physicians are usually right, but before we act, we will add a dose of the analytic process. Thinking more deeply about our findings on exam, what tests we will order, how will we treat, what do the tests tell us, what other interventions are needed … can this patient go home?

Do not be mistaken; I understand and respect the judicial process. Too often, in the era of quality scores and MIPs, for-profit hospital corporations and cost-effectiveness, those that have no medical knowledge and no training are driving medical decision making to meet nonsensical quality standards or financial metrics. The physician is being marginalized to a commodity to follow evidence-based clinical pathways, deviating from these guidelines and pathways resulting in lower-quality scores and financial penalties. The loss of autonomy and ability to apply one’s intuitive and analytical skill set is leading more and more physicians to sadly leave clinical medicine.

“The life so short, the craft so long to learn”
– Hippocrates

Robert J. Wagner is an emergency physician.

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