Thursday, October 06, 2016

Nicodemus v. St. Francis Memorial Hospital (Cal. Ct. App. - Oct. 6, 2016)

Section 1158 of the Evidence Code provides (or at least provided during the relevant time period) that:

"'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.' 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. 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."

Makes sense.  No fair letting a hospital make a fat profit from giving patients and their attorneys the copies of medical records they desperately need.

And yet, in the present case, when plaintiff and his attorney requested medical records, "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.”

Nor was this a simple mistake.  "HealthPort has followed the same process at all of its California locations since May 1, 2009. Between May 1, 2009 and July 31, 2013, it processed 152,546 attorney requests for California medical providers, using the same invoice form, and charging the same per-page copying fee ($0.25)."

Plaintiff then sues in a putative class action.  The trial court, however, denies certification.

The Court of Appeal reverses.

Thankfully.  This sounds like an outstanding class action to me.  (Let's just hope that the class gets actual relief, instead of the attorney simply getting a hefty fee.)