Ortiz v. Ciox Health LLC

• Decision Date: 07 May 2019
• Docket Number: 17cv4039(DLC)
• Citation: 386 F.Supp.3d 308
• Parties: Hector ORTIZ, in his capacity as the Temporary Administrator for the Estate of Vicky Ortiz, individually and on behalf of all others similarly situated, Plaintiffs, v. CIOX HEALTH LLC, as successor in interest of IOD Inc., and the New York and Presbyterian Hospital, Defendants.
• Court: U.S. District Court — Southern District of New York

386 F.Supp.3d 308

Hector ORTIZ, in his capacity as the Temporary Administrator for the Estate of Vicky Ortiz, individually and on behalf of all others similarly situated, Plaintiffs,

v.CIOX HEALTH LLC, as successor in interest of IOD Inc., and the New York and Presbyterian Hospital, Defendants.

17cv4039(DLC)

United States District Court, S.D. New York.

Signed May 7, 2019

For the Plaintiff: Lowell J. Sidney, 244 5th Avenue, Suite Q278, New York, NY 10001.

For Defendant CIOX Health LLC: Kathryn A. Tiskus, Hodgson Russ LLP, 604 Third Avenue, 23rd Floor, New York, NY 10158, Jodyann Galvin, Aaron M. Saykin, Hodgson Russ LLP, 140 Pearl Street, Suite 100, Buffalo, NY 14202-4040.

For Defendant The New York and Presbyterian Hospital: John Houston Pope, Epstein Becker & Green, P.C., 250 Park Avenue, New York, NY 10177.

OPINION & ORDER

DENISE COTE, District Judge:

Hector Ortiz brings this proposed class action against CIOX Health LLC ("CIOX") and the New York and Presbyterian Hospital ("NYPH"). He seeks damages and injunctive relief arising out of defendants' alleged violations of New York Public Health Law § 18 (" § 18"), which prohibits health care providers from charging qualified persons more than $0.75 per page for copies of their medical records. This Opinion addresses the defendants' second motion to dismiss this action. Because there is no private right of action under § 18, this action is dismissed.

Background

The facts as alleged in the First Amended Complaint ("FAC") have been described in an Opinion of February 22, 2018, which is incorporated by reference. See Ortiz v. CIOX Health LLC, No. 17cv4039(DLC), 2018 WL 1033237, at *1 (S.D.N.Y. February 22, 2018) ("February 2018 Opinion"). In sum, Vicky Ortiz ("Ortiz"), through her attorney, made a written request to NYPH for her medical records in October 2016. The request indicated that, pursuant to § 18(2)(e), NYPH could not charge Ortiz more than $0.75 per page. NYPH's contractor, a predecessor in interest to CIOX, charged Ortiz $1.50 per page for her medical records. Ortiz paid the bill and subsequently filed this class action. Shortly thereafter, CIOX unilaterally refunded Ortiz's credit card the amount charged above the $0.75 statutory maximum.

The February 2018 Opinion dismissed several counts of the FAC but allowed a single claim, for a violation of § 18(2)(e), to go forward. Id. at *6. On May 14, 2018, Ortiz's counsel informed the Court that Ortiz had died. An Order of October 16 granted plaintiff's application to substitute Hector Ortiz, in his capacity as temporary administrator of the Ortiz estate, as the party plaintiff.

On October 31, CIOX and NYPH filed motions for judgment on the pleadings or to dismiss the remaining cause of action. NYPH and CIOX assert that the plaintiff lacks standing to pursue either damages or injunctive relief, that § 18(2)(e) does not accord a private right of action, that the plaintiff's proposed class is overbroad, and that CIOX's copying costs are not at issue in this litigation.¹ Because § 18(2)(e) does not accord a private right of action, only the first two claims are addressed.

Discussion

I. Article III Standing

"Whether a plaintiff possesses standing to sue under Article III is the threshold question in every federal case, determining the power of the court to entertain the suit." Nat. Res. Def. Council v. Nat'l Highway Traffic Safety Admin., 894 F.3d 95, 103 (2d Cir. 2018) (citation omitted). To establish Article III standing, a plaintiff must demonstrate:

(1) injury-in-fact, which means an actual or imminent and concrete and particularized harm to a legally protected interest; (2) causation of the injury, which means that the injury is fairly traceable to the challenged action of the defendant; and (3) redressability, which means that it is likely, not speculative, that a favorable decision by a court will redress the injury.

Id. (citation omitted). A plaintiff "must demonstrate standing for each claim he seeks to press and for each form of relief that is sought." Davis v. FEC, 554 U.S. 724, 734, 128 S.Ct. 2759, 171 L.Ed.2d 737 (2008) (citation omitted). "Although past injuries may provide a basis for standing to seek money damages, they do not confer standing to seek injunctive relief unless the plaintiff can demonstrate that she is likely to be harmed again in the future in a similar way." Nicosia v. Amazon.com, Inc., 834 F.3d 220, 239 (2d Cir. 2016). "That a suit may be a class action adds nothing to the question of standing, for even named plaintiffs who represent a class must allege and show that they personally have been injured, not that injury has been suffered by other, unidentified members of the class to which they belong." Spokeo, Inc. v. Robins, ––– U.S. ––––, 136 S. Ct. 1540, 1547 n.6, 194 L.Ed.2d 635 (2016) (citation omitted).

CIOX and NYPH moved earlier in this case to dismiss Ortiz's claims for lack of standing. They argued that Ortiz lacked standing to pursue her claims for damages because the FAC failed to allege that she, rather than her attorney, was injured. They also argued that the FAC failed to allege a likelihood of future injury sufficient to confer standing for injunctive relief. They further argued that, even if Ortiz had standing at one point, her claims became moot when CIOX unilaterally refunded to her credit card the amount of the alleged overcharge. Each of these arguments was rejected in the February 2018 Opinion. See Ortiz, 2018 WL 1033237, at *2-3.

In their current motion, the defendants reframe their mootness argument as a standing argument. It remains a mootness argument, see Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000), and it was properly rejected as such in the February 2018 Opinion. Ortiz, 2018 WL 1033237, at *3 ; Geismann v. ZocDoc, Inc., 909 F.3d 534, 543 (2d Cir. 2018).

The defendants additionally argue that, because Ortiz recently died, Hector Ortiz does not have standing to pursue claims for injunctive relief on her behalf. The defendants are incorrect. Although Ortiz has died, it is plausible that her estate will need to obtain copies of her medical records in connection with the administration of her estate. Section 18 allows representatives of a decedent's estate to obtain medical records; persons with power of attorney to make such requests are "qualified persons" under the statute. See N.Y. Pub. Health L. ("PHL") § 18(1)(g). Hector Ortiz brings this litigation in his capacity as temporary administrator of Ortiz's estate. As such, Ortiz's death does not impact Hector Ortiz's standing to seek injunctive relief.

II. Private Right of Action

Defendants seek judgment on the pleadings on the grounds that § 18(2)(e) contains neither an express nor implied private right of action. The defendants are correct.

Section 18 does not contain any express grant of a private right of action. Where a statute does not expressly provide for a private right of action, a plaintiff "can seek civil relief in a plenary action based on a violation of the statute only if a legislative intent to create such a right is fairly implied in the statutory provisions and their legislative history." Cruz v. TD Bank, N.A., 22 N.Y.3d 61, 70, 979 N.Y.S.2d 257, 2 N.E.3d 221 (2013) (citation omitted). "[I]t is for the courts to determine, in light of those provisions, particularly those relating to sanction and enforcement, and their legislative history ... what the Legislature intended." Burns Jackson Miller Summit & Spitzer v. Lindner, 59 N.Y.2d 314, 325, 464 N.Y.S.2d 712, 451 N.E.2d 459 (1983) ; see also Uhr v. E. Greenbush Cent. Sch. Dist., 94 N.Y.2d 32, 38, 698 N.Y.S.2d 609, 720 N.E.2d 886 (1999).

The New York Court of Appeals has articulated a three-part test to govern this inquiry. Courts must determine "(1) whether the plaintiff is one of the class for whose particular benefit the statute was enacted; (2) whether recognition of a private right of action would promote the legislative purpose; and (3) whether creation of such a right would be consistent with the legislative scheme." Cruz, 22 N.Y.3d at 70, 979 N.Y.S.2d 257, 2 N.E.3d 221 (citation omitted). Among these factors, the third is the "most important." Id.

The "[a]nalysis begins, of course, with the statute itself." Burns Jackson, 59 N.Y.2d at 325, 464 N.Y.S.2d 712, 451 N.E.2d 459 ; see also Nat. Res. Def. Council, Inc. v. U.S. Food and Drug Admin., 760 F.3d 151, 172 (2d Cir. 2014). New York's Public Health Law provides a comprehensive framework for the regulation of public health services. It establishes the powers, functions, and duties of the Department of Health, and it provides, among other things, the laws and regulations that govern state laboratories, local health organizations, public water supplies, and state and federal aid.

Since at least 1953, when the Public Health Law was recodified to reflect its current organization, the law has provided two mechanisms to enforce its provisions: a civil penalty, imposed by the Commissioner of Health, or an action pursuant to Article 78 of the Civil Practice Law and Rules. Compare 1953 N.Y. Sess. L., ch. 879, §§ 12-13, with PHL §§ 12-13. Section 12 of the Public Health Law authorizes the Commissioner of Health to impose a fine of $2,000 per violation -- escalating to up to $5,000 for any subsequent violation -- on "any person who violates ... any term or provision of this chapter ... for which a civil penalty is not otherwise expressly prescribed by law." PHL § 12(1)(a)-(b).² Section 13 provides that "[t]he performance of any duty or the doing of any act enjoined, prescribed or required by this chapter, may be enforced by a proceeding pursuant to article seventy-eight of the civil practice law and rules...." Id. § 13. As has been true since 1953, a proceeding under Article 78 may be brought by a state agency or by "any citizen of full age resident of the municipality where the duty should be performed or the act done." Id.

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