Moya v. Aurora Healthcare, Inc., 2014AP2236.

• Citation: 874 N.W.2d 336,366 Wis.2d 541
• Decision Date: 01 December 2015
• Docket Number: No. 2014AP2236.,2014AP2236.
• Parties: Carolyn MOYA, Plaintiff–Respondent, v. AURORA HEALTHCARE, INC. and Healthport Technologies, LLC, Defendants–Appellants.
• Court: Court of Appeals of Wisconsin

366 Wis.2d 541

874 N.W.2d 336

Carolyn MOYA, Plaintiff–Respondent,^†

v.AURORA HEALTHCARE, INC. and Healthport Technologies, LLC, Defendants–Appellants.

No. 2014AP2236.

Court of Appeals of Wisconsin.

Submitted on Briefs Sept. 8, 2015.

Opinion Filed Dec. 1, 2015.

On behalf of the defendants-appellants, the cause was submitted on the briefs of Beth Ermatinger Hanan and John Franke of Gass Weber Mullins LLC, Milwaukee.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Robert J. Welcenbach and Jeanne E. Bell of Welcenbach Law Offices, S.C., Milwaukee.

Before KESSLER and BRENNAN, JJ., and DANIEL L. LaROCQUE, Reserve Judge.

LaROCQUE, J.

¶ 1 Aurora Healthcare, Inc. and HealthPort Technologies, LLC (collectively "HealthPort " except as needed) appeal from non-final orders denying HealthPort's motion for summary judgment and denying its motion for reconsideration.¹ This case involves the construction and interpretation of WIS. STAT. §§ 146.81 –146.83 (2013–14)² to determine whether personal injury attorneys are exempt from the $8 certification and $20 retrieval fees under the health-records-fee statute, § 146.83(3f), when an attorney orders a client's health care records with the client's written permission. HealthPort claims the circuit court erred when it construed § 146.83(3f)'s "person authorized by the patient" language to include a personal injury attorney whose client signed a written HIPAA authorization giving permission to get the client's medical records. HealthPort argues that the plain language of the statute, the context of the statute, and a recent amendment to the statute support its position that "person authorized by the patient" does not include a personal injury attorney whose client has signed a written form allowing the attorney to gather the client's medical records. Because "person authorized by the patient," as that term is defined by § 146.81(5) and used in § 146.83 does not include Moya's attorney, we reverse the circuit court's orders and remand with directions to grant HealthPort's motions and dismiss Moya's complaint.³

BACKGROUND

¶ 2 In April 2011, Moya was involved in a motor vehicle accident. She hired Welcenbach Law Offices, S.C. to handle her personal injury lawsuit. Attorney Robert Welcenbach had Moya sign HIPAA forms authorizing the release of her medical records to Welcenbach Law Offices. Welcenbach sent a request for the records to Aurora, who had a contract with HealthPort to fulfill the records request. HealthPort sent certified copies of Moya's medical records to Welcenbach along with invoices listing the charges, including a $20 retrieval fee and $8 certification fee. The invoices were all paid by Welcenbach Law Offices.

¶ 3 In March 2013, Moya filed a class action complaint alleging HealthPort violated WIS. STAT. § 146.83(3f) by charging her attorney the retrieval and certification fees. She argued that her attorney was a "person authorized by the patient" and therefore exempt from having to pay retrieval or certification fees. HealthPort filed a motion to dismiss the complaint, which was denied by the circuit court.

¶ 4 After discovery, HealthPort filed a motion for summary judgment asserting that the proper interpretation of WIS. STAT. §§ 146.81 –146.83 clearly shows that Moya's attorney was not a "person authorized by the patient" because that term means a person who the patient has given the power to consent to release of her health care records to others. A client's signed HIPAA authorization only gives a personal injury attorney the right to obtain and view health care records, but not the right to have health care providersrelease those records to others. The circuit court denied HealthPort's motion, ruling that "person authorized by the patient" had different degrees of meaning. It held that the phrase meant authority "to consent to the release of records" under § 146.81(5), but under § 146.83, the phrase meant anyone who the patient gives "the authority to inspect the patient's health care records."

¶ 5 HealthPort subsequently filed a motion for reconsideration arguing that the recent amendment to WIS. STAT. § 146.83, adding subsection (1b), demonstrated that the circuit court's earlier interpretation of the statute was incorrect. Subsection (1b) made State Public Defenders a "person authorized by the patient" when the attorney has written informed consent:

(1b) Notwithstanding s. 146.81(5), in this section, a "person authorized by the patient" includes an attorney appointed to represent the patient under s. 977.08 if that attorney has written informed consent from the patient to view and obtain copies of the records.

WIS. STAT. § 146.83(1b). The circuit court denied the motion for reconsideration. HealthPort filed a petition to appeal from non-final orders, which we granted.

ANALYSIS

¶ 6 Our review on summary judgment decisions is de novo. See Green Spring Farms v. Kersten, 136 Wis.2d 304, 315–17, 401 N.W.2d 816 (1987). Here, the summary judgment involved the construction and interpretation of statutes, which presents legal issues we also review independently of the circuit court. See Mayo v. Boyd, 2014 WI App 37, ¶ 8, 353 Wis.2d 162, 844 N.W.2d 652. The purpose of statutory interpretation is to determine the intent of the legislature. Id. To do so, we start with the plain language of the statute and examine that language "in the context in which it is used; not in isolation but as part of a whole; in relation to the language of surrounding or closely-related statutes; and reasonably, to avoid absurd or unreasonable results." State ex rel. Kalal v. Circuit Court for Dane Cty., 2004 WI 58, ¶ 46, 271 Wis.2d 633, 681 N.W.2d 110.

¶ 7 The statutes requiring our interpretation are WIS. STAT. §§ 146.81 –146.83. WISCONSIN STAT. § 146.81 defines words and phrases used in §§ 146.81 –146.84. Subsection (5) defines " ‘[p]erson authorized by the patient’ " as:

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 personal 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.

¶ 8 Wisconsin Stat. § 146.82 addresses the confidentiality of health care records. Subsection (1) provides in pertinent part: "All patient health care records shall remain confidential. Patient health care records may be released only to the persons designated in this section or to other persons with the informed consent of the patient or of a person authorized by the patient." Subsection (2) lists the circumstances in which patient health care records can be accessed without informed consent—none of which apply here. See § 146.82(2).

¶ 9 WISCONSIN STAT. § 146.83 addresses access to patient health care records and fees that can be charged for the records. The two pertinent subsections include (1b), which the legislature recently added to the statute. See 2013 Wis. Act 342 (April 23, 2014). Subsection (1b) provides: "Notwithstanding s. 146.81(5), in this section, a ‘person authorized by the patient’ includes an attorney appointed to represent the patient under s. 977.08 if that attorney has written informed consent from the patient to view and obtain copies of the records." Subsections (3f)(a) & (b) require a health care provider to comply with proper requests and set forth the fees that can be charged for copies of medical records:

(3f) (a) Except as provided in sub. (1f) or s. 51.30 or 146.82(2), if a person requests copies of a patient's health care records, provides informed consent, and pays the applicable fees under par. (b), the health care provider shall provide the person making the request copies of the requested records.

(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 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.

¶ 10 The issue on appeal is how to interpret "person authorized by the patient." Moya argues this phrase includes her attorney because as the "patient," she "authorized" Welcenbach to get her medical records by signing the HIPAA releases. HealthPort seeks a different interpretation by looking at the phrase within the context of the statute and because of the recent addition of WIS. STAT. § 146.83(1b).

¶ 11 We start first with the plain language of the statute. State ex rel. Kalal, 271 Wis.2d 633, ¶ 46, 681 N.W.2d 110. WISCONSIN STAT. § 146.81(5) specifically defines "person authorized by the patient." The statute defines the phrase by listing the individuals who qualify as...