Clarke v. SSM Health Care Corp.

• Decision Date: 12 January 2023
• Docket Number: 2021AP908
• Court: Wisconsin Court of Appeals
• Parties: Brittany D. Clarke, Plaintiff-Appellant-Cross-Respondent, v. SSM Health Care Corporation, Dean Clinic & St. Mary's Hospital Accountable Care Org., LLC and Diversified Medical Records Services, Inc., DEFENDANTS-RESPONDENTS-CROSS-APPELLANTS.

Brittany D. Clarke, Plaintiff-Appellant-Cross-Respondent, v. SSM Health Care Corporation, Dean Clinic & St. Mary's Hospital Accountable Care Org., LLC and Diversified Medical Records Services, Inc., DEFENDANTS-RESPONDENTS-CROSS-APPELLANTS.

No. 2021AP908

Court of Appeals of Wisconsin, District IV

January 12, 2023

Not recommended for publication in the official reports.

APPEAL and CROSS-APPEAL from an order of the circuit court for Dane County No. 2019CV1630 JACOB B. FROST, Judge.

Before Fitzpatrick, Graham, and Nashold, JJ.

FITZPATRICK, J.

¶1 Brittany D. Clarke initiated this lawsuit against a health care provider, SSM Health Care Corporation,^[1] and Diversified Medical Records Services, Inc. ("the defendants") alleging that the defendants charged fees for medical records in violation of Wis.Stat. § 146.83(3f) (2019-20).^[2] Clarke also alleged common law causes of action for unjust enrichment and conversion against the defendants based on the charged fees. Clarke appeals an order of the Dane County Circuit Court that: dismissed her statutory claim as barred by the two-year statute of limitations in Wis.Stat. § 893.93(2)(a) (2015-16)^[3]; and dismissed her common law claims. The defendants cross-appeal the circuit court's ruling which rejected the defendants' argument that the waiver doctrine bars Clark's statutory claim regarding the charged fees.

¶2 We reverse the circuit court's determination that the two-year statute of limitations in Wis.Stat. § 893.93(2)(a) bars Clarke's statutory claim. Rather, as this court held in Hammetter v. Verisma Systems Inc., 2021 WI.App. 53, 399 Wis.2d 211, 963 N.W.2d 874 review denied (WI Apr. 13, 2022) (No. 2019AP2423) the six-year statute of limitations in § 893.93(1)(a) applies to Clarke's statutory claim. We affirm the circuit court's ruling that dismissed Clarke's common law claims of unjust enrichment and conversion. We also affirm the circuit court's ruling that the doctrine of waiver does not apply in these circumstances and, as a result, does not bar Clarke's statutory claim. Accordingly, we remand this matter to the circuit court for further proceedings consistent with this opinion.

BACKGROUND

¶3 The following material facts are taken from the complaint. All well-pleaded facts in a complaint must be accepted as true on a motion to dismiss. Cattau v. National Ins. Servs. of Wis., 2019 WI 46, ¶4, 386 Wis.2d 515, 926 N.W.2d 756.

¶4 In November 2016, Clarke was injured in a car accident and retained Welcenbach Law Offices ("Welcenbach") to represent her in a personal injury lawsuit. Clarke authorized, in writing, the release of her medical records to Welcenbach, and Welcenbach requested certified health care medical and billing records from SSM, one of Clarke's health care providers.

¶5 On behalf of SSM, Diversified responded to Welcenbach's records request.^[4] Diversified charged $49.88 for the requested medical records and $24.52 for the requested billing records. Each charge was comprised of a copy fee for each page of the requested records and a "clerical fee" of $21.28.^[5] In December 2016, Welcenbach paid both charges. The parties do not dispute that Welcenbach paid both charges without objection. Clarke later settled her personal injury case and reimbursed Welcenbach for the records request charges paid to Diversified.

¶6 In June 2019, Clarke filed a class action complaint against the defendants. Clarke alleged that the defendants (with Diversified acting as the agent for SSM) charged fees for providing medical and billing records to her attorney that are not permitted under Wis.Stat. § 146.83(3f), and she seeks to recover actual and exemplary damages, costs, and attorney fees pursuant to Wis.Stat. § 146.84.^[6] Clarke also alleged in her complaint common law causes of action of unjust enrichment and conversion related to the charged fees. Further, Clarke requests that the circuit court certify a class of similarly situated individuals.

¶7 In response, the defendants filed motions to dismiss Clarke's complaint on the grounds that: (1) Clarke's statutory claims are barred by the two-year statute of limitations set forth under Wis.Stat. § 893.93(2)(a)^[7]; and (2) Clarke waived the causes of action in her complaint because Welcenbach paid the charged fees without objection.

¶8 The circuit court granted the defendants' motions. The court dismissed Clarke's statutory claim based on its conclusion that the claim is barred by the two-year statute of limitations in Wis.Stat. § 893.93(2)(a). The court also dismissed Clarke's common law claims because, according to the circuit court, the statutory remedies in Wis.Stat. §§ 146.83 and 146.84 are the exclusive remedies for the actions of SSM and Diversified. The circuit court rejected the defendants' argument that Clarke waived her claims based on the actions of her attorney.

¶9 Clarke appeals the circuit court's order dismissing her claims. SSM cross-appeals the court's order with respect to the court's rejection of its waiver argument.^[8]

¶10 Additional material facts are mentioned in the following discussion.

DISCUSSION

¶11 We first address the appeal, and we then address the cross-appeal.

I. Clarke's Appeal.

¶12 In her appeal, Clarke argues that the circuit court erroneously applied the two-year statute of limitations set forth under Wis.Stat. § 893.93(2)(a) to her statutory claim against SSM and, instead, should have applied the six-year statute of limitations set forth under § 893.93(1)(a). Clarke also argues that the circuit court erroneously dismissed her common law claims against SSM. We begin by setting forth our standard of review and governing principles.

A. Standard of Review and Governing Principles.

¶13 SSM's motion to dismiss is grounded in Wis.Stat. § 802.06(2)(a)9. and asserts that Clarke's statutory claim is barred by a statute of limitations. "Determining which statute of limitations applies to an action is a question of law [that] we review de novo." Munger v. Seehafer, 2016 WI.App. 89, ¶18, 372 Wis.2d 749, 890 N.W.2d 22. SSM's motion to dismiss Clarke's common law causes of action is grounded in § 802.06(2)(a)6. and asserts that those causes of action do not state a claim upon which relief can be granted. A circuit court's ruling on such a motion to dismiss is reviewed de novo by this court. Data Key Partners v. Permira Advisers LLC, 2014 WI 86, ¶17, 356 Wis.2d 665, 849 N.W.2d 693.

¶14 This appeal requires us to interpret statutes. Statutory interpretation and the application of statutes to undisputed facts are questions of law that this court reviews de novo. Landis v. Physicians Ins. Co. of Wis., Inc., 2001 WI 86, ¶¶12-13, 245 Wis.2d 1, 628 N.W.2d 893. "[S]tatutory interpretation 'begins with the language of the statute. If the meaning of the statute is plain, we ordinarily stop the inquiry.'" State ex rel. Kalal v. Circuit Ct. for Dane Cnty., 2004 WI 58, ¶45, 271 Wis.2d 633, 681 N.W.2d 110 (citation omitted). "Statutory language is given its common, ordinary, and accepted meaning, except that technical or specially-defined words or phrases are given their technical or special definitional meaning." Id.

B. Clarke's Statutory Claim is Not Barred by a Statute of Limitations.

¶15 Clarke argues that the circuit court should have applied to her statutory claim against SSM the following six-year statute of limitations set forth under Wis.Stat. § 893.93(1)(a):

(1) The f1ollowing actions shall be commenced within 6 years after the cause of action accrues or be barred:

(a) An action upon a liability created by statute when a different limitation is not prescribed by law.

Sec. 893.93(1)(a). According to Clarke, this section applies because her claims under Wis.Stat. §§ 146.83 and 146.84 are "action[s] upon a liability created by statute" for which there is no statute of limitations prescribed by law.^[9] See id. ¶16 For its part, SSM argues that a two-year statute of limitations under Wis.Stat. § 893.93(2)(a) applies to Clarke's claims:

(2) The following actions shall be commenced within 2 years after the cause of action accrues or be barred:

(a) An action by a private party upon a statute penalty, or forfeiture when the action is given to the party prosecuting therefor and the state, except when the statute imposing it provides a different limitation.

Sec. 893.93(2)(a). According to SSM, Clarke's statutory claim is an "action by a private party upon a statute penalty" because Clarke alleged in her complaint that she is entitled to exemplary damages pursuant to Wis.Stat. § 146.84 for the alleged violations of Wis.Stat. § 146.83(3f).

¶17 In Hammetter, 399 Wis.2d 211-an opinion published after Clarke filed her brief-in-chief in this court, but before SSM filed its response brief-we

considered and rejected an argument identical to the contention from SSM. In Hammetter, two plaintiffs sued their health care provider for charging fees for health care records in violation of Wis.Stat. § 146.83(3f). Hammetter, 399 Wis.2d 211, ¶5. In response, the health care provider argued that the plaintiffs' claim was barred by the two-year statute of limitations under Wis.Stat. § 893.93(2)(a) because Wis.Stat. § 146.84 allows private parties to seek up to $25,000 in exemplary damages. Id., ¶36. This court rejected the health care provider's argument and held that a six-year statute of limitations applies to the plaintiffs' claim. Id., ¶38. This court explained that the "the two-year statute of limitations applies where the action by a private party upon a statute penalty is for the benefit of the public, while the six-year statute of limitations applies when private individuals seek private relief." Id. (quoting State ex rel. Leung v. City of Lake Geneva, 2003 WI.App. 129, ¶6, 265 Wis.2d 674, 666

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