Moya v. Aurora Healthcare, Inc.

Decision Date04 May 2017
Docket NumberNo. 2014AP2236,2014AP2236
Citation2017 WI 45,375 Wis.2d 38,894 N.W.2d 405
Parties Carolyn MOYA, Plaintiff-Respondent-Petitioner, v. AURORA HEALTHCARE, INC. and Healthport Technologies, LLC, Defendants-Appellants.
CourtWisconsin Supreme Court

375 Wis.2d 38
894 N.W.2d 405
2017 WI 45

Carolyn MOYA, Plaintiff-Respondent-Petitioner,
v.
AURORA HEALTHCARE, INC. and Healthport Technologies, LLC, Defendants-Appellants.

No. 2014AP2236

Supreme Court of Wisconsin.

Oral Argument: October 20, 2016
Opinion Filed: May 4, 2017
Motion Denied June 28, 2017


For the plaintiff-respondent-petitioners, there was a brief by Robert J. Welcenbach and Welcenbach Law Offices, S.C., Milwaukee, and oral argument by Robert J. Welcenbach.

For the defendants-appellants, there was a brief by John Franke, Daniel A. Manna and Gass, Weber and Mullins, LLC, Milwaukee, and oral argument by John Franke.

894 N.W.2d 407

MICHAEL J. GABLEMAN, J.

375 Wis.2d 42

¶1 This is a review of a published decision of the court of appeals that reversed the Milwaukee County circuit court's1 denial of Aurora Healthcare, Inc. and Healthport Technologies, LLC's (collectively referred to as "Healthport") motion for summary judgment and remanded the case with directions to grant Healthport's motion for summary judgment. Moya v. Aurora Healthcare, Inc. , 2016 WI App 5, 366 Wis.2d 541, 874 N.W.2d 336.

¶2 Today, we are asked to interpret the meaning of the phrase "person authorized by the patient" in Wis. Stat. § 146.83(3f)(b)4.-5. (2013-14),2 which exempts a "patient or a person authorized by the patient" from paying certification charges and retrieval fees for obtaining copies of the patient's health care records. More particularly, we are asked to determine whether an attorney whose client authorized him via a HIPAA3 release form to obtain her health care records may

375 Wis.2d 43

benefit from this fee exemption. Because the phrase "person authorized by the patient" is defined in Wis. Stat. § 146.81(5) to include "any person authorized in writing by the patient," we hold that an attorney authorized by his or her client in writing via a HIPAA release form to obtain the client's health care records is a "person authorized by the patient" under Wis. Stat. § 146.83(3f)(b)4.-5. and is therefore exempt from certification charges and retrieval fees under these subdivisions. Consequently, the decision of the court of appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

¶3 We begin with a brief factual background and description of the procedural history. We then set forth the standard of review and the relevant rules for statutory interpretation. We then conclude that Carolyn Moya's ("Moya") attorney is a "person authorized by the patient" under Wis. Stat. § 146.83(3f)(b)4.-5. and is therefore exempt from the certification charge and retrieval fee authorized by that statute. Next, we address Healthport's arguments that the doctrines of voluntary payment and waiver bar Moya's claim.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

A. The Statutes Governing Access to Health Care Records

¶4 Access to patient health care records is governed by Wis. Stat. § 146.83. Under subsec. (3f), a health care provider shall, subject to exceptions that are inapplicable here, provide copies of a patient's

375 Wis.2d 44

health care records "if a person requests copies of a patient's health care records, provides informed consent, and pays the applicable fees under par. (b)." § 146.83(3f)(a).

¶5 Pursuant to para. (b), health care providers may impose certain costs on the person requesting health care records under para. (a):

(b) Except as provided in sub. (1f), a health care provider may charge no more than the total of all of the following that apply for providing the copies requested under par. (a):

1. For paper copies: $1 per page for the first 25 pages; 75 cents per page for pages 26 to 50; 50 cents per page for
894 N.W.2d 408
pages 51 to 100; and 30 cents per page for pages 101 and above.

2. For microfiche or microfilm copies, $1.50 per page.

3. For a print of an X-ray, $10 per image.

4. If the requester is not the patient or a person authorized by the patient, for certification of copies, a single $8 charge.

5. If the requester is not the patient or a person authorized by the patient, a single retrieval fee of $20 for all copies requested.

6. Actual shipping costs and any applicable taxes.

Wis. Stat. § 146.83(3f)(b) (emphasis added). According to subd. 4. and subd. 5., the patient and a person authorized by the patient are exempt from the certification charge and retrieval fee. This statute, though, does not provide a definition for a "person authorized by the patient."

¶6 Instead, a "person authorized by the patient" is defined in Wis. Stat. § 146.81(5) as

375 Wis.2d 45
the parent, guardian, or legal custodian of a minor patient, as defined in s. 48.02 (8) and (11), the person vested with supervision of the child under s. 938.183 or 938.34 (4d), (4h), (4m), or (4n), the guardian of a patient adjudicated incompetent in this state, the person representative, spouse, or domestic partner under ch. 770 of a deceased patient, any person authorized in writing by the patient or a health care agent designated by the patient as a principal under ch. 155 if the patient has been found to be incapacitated under s. 155.05 (2), except as limited by the power of attorney for health care instrument. If no spouse or domestic partner survives a deceased patient, "person authorized by the patient" also means an adult member of the deceased patient's immediate family, as defined in s. 632.895 (1)(d). A court may appoint a temporary guardian for a patient believed incompetent to consent to the release of records under this section as the person authorized by the patient to decide upon the release of records, if no guardian has been appointed for the patient.

(Emphasis added). Because this definition uses the disjunctive "or," see Hull v. State Farm Mut. Auto. Ins. , 222 Wis.2d 627, 638, 586 N.W.2d 863 (1998) (" '[O]r' should be interpreted disjunctively."), in order to be a person authorized by the patient under Wis. Stat. § 146.83(3f)(b)4.-5., and therefore enjoy exemption from the certification charge and retrieval fee, a person must fall into only one of the above categories of persons. One of the categories in the above definition is "any person authorized in writing by the patient," and it is this category on which Moya relies in arguing that her attorney is a "person authorized by the patient" under § 146.83(3f)(b)4.-5.

B. Moya's Class Action Lawsuit

¶7 This case comes to us by way of a class action lawsuit filed by Moya on behalf of not only herself but

375 Wis.2d 46

all other similarly situated persons who have been billed the certification charge and retrieval fee by Healthport for obtaining their own healthcare records. The class action arose from Moya's personal injury claim4 in which Moya hired Welcenbach Law Offices, S.C. to represent her and the law firm had to pay the certification charge and retrieval fee, despite the fact that Moya had authorized the law firm in writing to obtain those records.

894 N.W.2d 409

¶8 Moya authorized her attorney, Robert Welcenbach, to obtain her health care records by signing HIPAA release forms giving to Welcenbach Law Offices, S.C. "authoriz[ation] to receive [her] health information."

¶9 Atty. Welcenbach subsequently submitted requests for Moya's health care records,5 and Healthport, when fulfilling the requests, imposed certification charges and retrieval fees pursuant to Wis. Stat. § 146.83(3f)(b)4.-5. Atty. Welcenbach paid the certification charges and retrieval fees and passed the associated costs to Moya by deducting the costs from the settlement proceeds resulting from her personal injury claim.6

375 Wis.2d 47

¶10 At the time Healthport invoiced Atty. Welcenbach, he paid the costs, and he did not specifically dispute them. However, he had on multiple previous occasions disputed the imposition of such costs in other cases.

¶11 In response to Healthport's imposition of the certification charges and retrieval fees, Moya filed this class action lawsuit. She argues that Healthport violated Wis. Stat. § 146.83(3f)(b)4.-5. when it imposed the certification charges and retrieval fees because her attorney is a "person authorized by the patient," thereby exempting her attorney from paying the certification charges and retrieval fees.

¶12 Healthport moved to dismiss Moya's complaint for failure to state a claim, and the circuit court7 denied Healthport's motion. Healthport filed an answer, and the parties underwent limited discovery. After the limited discovery, Healthport filed a motion for summary judgment asking the circuit court to dismiss Moya's claim with prejudice. The circuit court8 denied Healthport's motion. Healthport filed a motion for reconsideration, and the circuit court9 again denied Healthport's motion.

¶13 Healthport filed an interlocutory appeal, and the court of appeals reversed the...

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