Nicodemus v. Saint Francis Mem'l Hosp.
| Decision Date | 14 September 2016 |
| Docket Number | A141500 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Kristen NICODEMUS et al., Plaintiffs and Appellants, v. SAINT FRANCIS MEMORIAL HOSPITAL et al., Defendants and Respondents. |
3 Cal.App.5th 1200
208 Cal.Rptr.3d 411
Kristen NICODEMUS et al., Plaintiffs and Appellants,
v.
SAINT FRANCIS MEMORIAL HOSPITAL et al., Defendants and Respondents.
A141500
Court of Appeal, First District, Division 4, California.
Filed September 14, 2016
Andrus Anderson LLP, Lori E. Andrus, San Francisco; Hersh & Hersh, P.C., Mark E. Burton, San Francisco, for Plaintiffs & Appellants.
Woollacott PLC, Jay Woollacott, Los Angeles, for Defendants & Respondents
Rivera, J.
Plaintiff Kristen Nicodemus filed this action against HealthPort Technologies, LLC (HealthPort) and Saint Francis Memorial (Saint Francis) (collectively, defendants), alleging they overcharged her for copies of her patient medical records. She sought to bring the action on her own behalf and on behalf of others who, acting through an attorney, requested patient medical records from a medical provider in California prior to litigation and were charged more than the amounts specified in Evidence Code 1section 1158. Plaintiff's motion to certify the class was denied. We conclude this was error and reverse.
I. BACKGROUND
A. Statutory Framework
Section 1158 is designed to require medical providers to produce the medical records demanded by patients through their attorneys prior to litigation in a timely fashion and at a reasonable cost. At the time of plaintiff's appeal, section 1158 provided in pertinent part: “Whenever, prior to the filing of any action or the appearance of a defendant in an action, an attorney at law ... presents a written authorization therefor signed by an adult patient [or by a patient's guardian, conservator, parent, or personal representative], ... a licensed hospital ... shall make all of the patient's records ... available for inspection and copying by the attorney at law ... promptly upon presentation of the written authorization.” (Former
§ 1158.)2 The statute authorizes the requesting attorney to employ a professional photocopier to obtain the records on the attorney's behalf, and the provider must produce the records within five days. (Ibid. ) All “reasonable costs” incurred by a medical provider in locating, copying, or making the records available may be charged to the requesting party, subject to limits set forth in the statute, which include $0.10 per page for reproducing documents measuring up to 8.5 by 14 inches, $0.20 per page for producing documents from microfilm, and clerical costs not to exceed $16 per hour per person for locating and making records available. (Ibid .)
“ ‘The legislative purpose behind the enactment [of section 1158 ] is not stated, but its apparent goal is to permit a patient to evaluate the treatment he or she received before determining whether to bring an action against the medical provider. Section 1158 also enables the patient to seek freely advice concerning the adequacy of medical care and to create a medical history file for the patient's information or subsequent use. It operates to prevent a medical provider from maintaining secret notes which can be obtained by the patient only through litigation and potentially protracted
discovery proceedings.’ ” (Thornburg v. Superior Court (2006) 138 Cal.App.4th 43, 50, 41 Cal.Rptr.3d 156, quoting National Football League Management Council v. Superior Court (1983) 138 Cal.App.3d 895, 903, 188 Cal.Rptr. 337 (National Football League ).)
B. Plaintiff's Request for Medical Records
According to the complaint, in June 30, 2011, plaintiff was admitted to Saint Francis for treatment of injuries sustained when she was burned by exploding fuel gel from a firepot. Later she engaged an attorney to represent her in a potential lawsuit. Plaintiff's attorney sent a fax to Saint Francis asking that it provide her copies of plaintiff's medical records, and attaching a signed authorization to release the information.
In that period, HealthPort provided Saint Francis with patient medical record release-of-information services pursuant to a contract (the contract).3 Under the contract, HealthPort agreed, among other things, to review requests for patient medical records that Saint Francis received, gather responsive records, and provide copies to requestors. When attorneys requested client medical records “in a matter in which the medical records are an issue (including a request issued pursuant to CA Evidence Code 1158 ),” HealthPort agreed it would provide those same services as “representative of [the attorney] request[er] ... after receiving written authorization from the attorney.” HealthPort assigned personnel on-site at Saint Francis to perform the services.
Operating under the contract, HealthPort responded to plaintiff's attorney's request for plaintiff's medical records, sending a “California Agent Fee Information” sheet (information sheet) and an invoice. In a section explaining the invoice charges, the information sheet quoted section 1158, acknowledging its requirement that medical providers must allow attorneys to inspect and copy patient records on presentation of a patient's written authorization. The information sheet, however, went on to state: “HealthPort has agreed to copy records for you, upon your hiring of HealthPort as your representative/agent for purposes of making such copies. The rates that HealthPort is charging do not fall under [section] 1158.”4
HealthPort's invoice to plaintiff's counsel sought payment of $86.52, and provided directions for payment. The amount included a $30 “basic fee,” a $15 “retrieval fee,” $25.25 for copying 101 pages at $0.25 per page, $10.30 for shipping, and $5.97 for sales tax. The invoice included a statement directing requestors to the information sheet for more details, and advising, “Payment implies that you agreed to employ HealthPort as your professional photocopy representative for purposes of this request and that you accepted the charge denoted below on this invoice.”
Plaintiff's attorney paid HealthPort's invoice in full, noting on the check's memo line, “under protest in violation of CA EVID CODE 1158,” and plaintiff later reimbursed her attorney for that cost. HealthPort delivered the requested copies.
C. Plaintiff's Action and Motion for Class Certification
In May 2013, plaintiff filed her complaint against defendants alleging causes of action for violation of section 1158 and violation of the Unfair Competition Law (UCL) (Bus. & Prof. Code, § 17200 et seq. ). (Thornburg v. El Centro Regional Medical Center (2006) 143 Cal.App.4th 198, 204–205, 48 Cal.Rptr.3d 840 [section 1158 is enforceable by private right of action].)
On November 22, 2013, plaintiff moved for an order certifying the following class: “All adult patients, guardians or conservators of adult patients (or of the adult patient's estate), parents or guardians of minor patients, or personal representatives or heirs of deceased patients, who: (1) requested medical records from a hospital or other medical provider (as enumerated in [section 1158 ] ) located in California; (2) through an attorney at law or his/her representative; (3) prior to litigation[;] and (4) were charged by HealthPort more than: (a) ten cents ($0.10) per page for reproduction of medical records [8.5] x 14 inches or less, (b) twenty cents ($0.20) per page for reproduction of medical records from microfilm, (c) $16.00 per hour (computed on the basis of four dollars per quarter hour or fraction thereof) for clerical costs, (d) actual postal charges, and/or (e) actual costs charged by a third person, from May 1, 2009 to present.”
In support of her motion for class certification, plaintiff submitted evidence obtained through discovery describing HealthPort's procedure for handling attorney requests seeking client medical records. According to that material, if the attorney requesting the records does not indicate plans to use a different photocopy service, the receiving medical facility automatically forwards the request to its on-site HealthPort representative. That person obtains and combines all responsive paper and electronic medical records, transmitting them together in an encrypted format to the corporate office in Georgia.
In Georgia, HealthPort personnel index all requests, assigning them to categories, depending on the context. Requests involving subpoenas or workers' compensation claims, respectively, for example, are grouped in separate categories.
HealthPort tracks all requests using a database. The database includes requester (or “customer”) names and contact information, patient names, medical provider names, and fee and invoicing information. It also assigns index numbers for billing purposes based on request categories. For example, all attorney requests—or “attorney personal injury” requests, as HealthPort refers to them—that attach release authorization forms and seek...
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