Silver v. Greater Balt. Med. Ctr., Inc.

• Decision Date: 21 December 2020
• Docket Number: No. 3491, Sept. Term, 2018,3491, Sept. Term, 2018
• Citation: 248 Md.App. 666,243 A.3d 576
• Parties: Enoch SILVER, III v. GREATER BALTIMORE MEDICAL CENTER, INC., et al.
• Court: Court of Special Appeals of Maryland

248 Md.App. 666

243 A.3d 576

Enoch SILVER, III

v.GREATER BALTIMORE MEDICAL CENTER, INC., et al.

No. 3491, Sept. Term, 2018

Court of Special Appeals of Maryland.

December 21, 2020

Argued by: Phillip R. Robinson (Consumer Law Center, LLC of Silver Spring, MD and Steven A. Skalet, Mehri & Skalet, PLLC of Washington, D.C., Patrick Malone, Patrick Malone & Associates of Washington, D.C.), on brief, for Appellant.

Argued by: Jerrold A. Thrope (Gordon, Feinblatt, LLC, of Baltimore, MD) Linda S. Woolf (Goodell, DeVries, Leech & Dann, LLC of Baltimore, MD, and Elizabeth A. Scully, Baker & Hostetler, LLP of Washington, D.C.), on brief, for Appellee.

Kehoe, Arthur, Charles E. Moylan, Jr. (Senior Judge, Specially Assigned) JJ.^*

Kehoe, J.

Contents

Introduction

Background

The medical-records charges

The complaint

The motion for class certification

The circuit court's denial of the class-certification motion

Analysis

A. Class certification

B. The standard of review

C. The damages class: certification under Md. Rule 2-231(c)(3)

1. Predominance

2. Superiority

3. Certification of subclasses D. The injunctive-relief class: certification under Md. Rule 2-231(c)(2)

Conclusion and proceedings on remand

Introduction

Enoch Silver, who paid to receive copies of his medical records from each of the appellee hospitals, filed a putative class-action lawsuit against them. He alleged that the hospitals had violated, and were continuing to violate, Maryland statutory law by assessing unreasonable charges for the copies and by engaging in related illegal and unfair trade practices. The Circuit Court for Baltimore City denied Silver's motion to certify two proposed classes for the action—one for damages and another for injunctive relief. And because Silver's individual claims against the hospitals did not meet the circuit court's amount-in-controversy threshold, the court ultimately granted an unopposed motion to dismiss Silver's case for lack of jurisdiction.

Silver's brief presents three issues which we have consolidated into one: Did the circuit court abuse its discretion in denying Silver's class-certification motion?¹ Our answer is no as to the proposed damages class. However, we do not agree with the circuit court's reasoning as to the proposed class for injunctive relief. We will affirm the circuit court's judgment in part, vacate it in part and remand this case for further proceedings.

Background

The medical-records charges

Silver's lawsuit arises out of three separate requests for medical records from three unaffiliated hospitals: Greater Baltimore Medical Center ("GBMC"), Medstar Union Memorial Hospital, and The Johns Hopkins Hospital.

On August 20, 2014, Silver, through his attorney, sent GBMC a written request for copies of his personal medical records dating back to July 1, 2014. In his letter to the hospital, Silver asked that any records available in electronic format be sent to him on a CD. Within a few days, GBMC delivered the requested records, but in paper format and for a considerable price. The $573.39 invoice for fulfilling the records request included per-page copying fees totaling $506.16 ($0.76 per page, for an estimated 666 pages); a "Basic Fee" of $22.88; a "Handling Fee" of $1.00; a shipping fee of $12.23; and sales tax of $31.12. On July 15, 2015, more than nine months after receiving this invoice, Silver, through his attorney, complained about the amount of these fees. The hospital didn't budge.

Silver's second medical-records request was made to Union Memorial on March 25, 2015. Through his attorney, Silver made a written request for his personal medical records dating back to January 1, 2007. As he had done with GBMC, Silver asked that any records available in electronic format be delivered on a CD. Union Memorial responded as GBMC had: with paper records and an invoice. The bill, for $277.47, included per-page copying fees totaling $228.76 ($0.76 per page, for an estimated 301 pages); a "Basic Fee" of $22.88; a "Handling Fee" of $1.00; a shipping fee of $9.80; and sales tax of $15.03.

Silver's third request was made of Johns Hopkins on October 19, 2015, seeking his personal medical records dating back to July 1, 2014. The written request, once more made through Silver's attorney, asked that electronic records be delivered on a CD. Johns Hopkins delivered one page of paper records for $24.12. This cost included a per-page copying fee of $0.76; a "Basic Fee" of $22.88; and a shipping-and-handling fee of $0.48.

The complaint

In September 2016, Silver filed a two-count complaint in the Circuit Court for Baltimore City, proposing to bring a class-action lawsuit against all three hospitals.

In one count, Silver alleged that the hospitals’ "exorbitant" medical-records charges violated Md. Code, § 4-304(c) of the Health–General Article ("Health–Gen."), which limits the fees that healthcare providers may charge for the provision of medical records. (A right of action for the violation of Health–Gen. § 4-304(c) is provided under Health–Gen. § 4-309(f), which makes healthcare providers and others who knowingly violate the statute liable for actual damages.) Under the current version of the statute, when a "person in interest" or other authorized person requests medical records, providers are limited to charging "a reasonable cost-based fee for providing the information requested." Health–Gen. § 4-304(c)(2). Subject to some conditions, the statute places a $0.76 per-page cap on fees for "copying and mailing" records. Health–Gen. § 4-304(c)(3)(i). In addition to the per-page fees, the statute permits healthcare providers to charge up to $22.88 for "record retrieval and preparation," plus the actual costs incurred for "postage and handling." Health–Gen. § 4-304(c)(3)(ii). For electronic copies of records stored in an electronic format, the per-page fee is limited to seventy-five percent of the per-page fee noted above, up to $80. Health–Gen. § 4-304(c)(3)(iii). Except for the preparation-and-retrieval fees, the fee limits may be adjusted for inflation. Health–Gen. § 4-304(c)(4). The statute is explicit that the fees are also subject to the "fee limitations that apply to persons in interest under 45 C.F.R. 164.524^{[2 ]} and any guidance on those limitations issued by the U.S. Department of Health and Human Services." Health–Gen. § 4-304(c)(3)(ii), (iii).

Significantly for this case, Health–Gen. § 4-304(c) was amended on October 1, 2016. See 2016 Md. Laws ch. 724. Before the amendment, the statute limited providers to charging "the reasonable cost" of providing requested records, rather than "a reasonable cost-based fee." Id. It also capped per-page copying charges at $0.50 and the retrieval-and-preparation fee at $15. Id. Both fee caps were subject to annual adjustments for inflation, id. , and both parties agree that the inflation-adjusted amounts during the relevant time period would have been $0.76 and $22.88, respectively. Finally, before the 2016 amendment, the statute did not impose a separate limitation on the fees that could be charged for records stored and delivered electronically. Id.

In the other count of his complaint, Silver alleged that the hospitals’ unreasonable charges, along with their failure to inform requesters that they could access electronic records in electronic format for a lower fee, violated the Maryland Consumer Protection Act, codified at Md. Code, tit. 13 of the Commercial Law Article ("Com. Law"). Among other things, the Maryland Consumer Protection Act prohibits "unfair, abusive, or deceptive trade practice[s]" in the sale of consumer services. Com. Law § 13-303(1). These prohibited practices include the "[f]ailure to state a material fact if the failure deceives or tends to deceive." Com. Law § 13-303(3). The complaint sought both damages and injunctive relief.

The motion for class certification

After an unsuccessful motion by the hospitals to dismiss Silver's complaint and a short-lived removal of the case to federal court, Silver filed a motion for class certification in the circuit court. The motion proposed one class for damages and another for injunctive relief. The damages class was to include all patients of the hospitals "who paid, directly or through any agent ..., to any of [the hospitals or a third-party contractor hired to process records requests] for access to or copies of their medical records from September 9, 2013 through the date of trial in this case." The injunctive-relief class was to include all patients of the hospitals whose requests for access to their records were processed by any of the hospitals or by third-party contractors hired by the hospitals to process records requests.

Silver argued that both proposed classes met the requirements for certification listed in Md. Rule 2-231,³ which permits class certification

only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims of the representative parties are typical of the claims of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.

Md. Rule 2-231(b). Even if all of these threshold requirements are met, Md. Rule 2-231(c) lays down one more hurdle. "Unless justice requires otherwise," at least one of the following conditions must also be met before a class may be certified:

(1) the prosecution of separate actions by individual members of the class would create a risk of (A) inconsistent or varying adjudications with respect to individual members of the class that would establish incompatible standards of conduct for the party opposing the class, or (B) adjudications with respect to individual members of the class that would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests; or

(2) the party opposing the class has acted or refused to act on grounds generally

...