WisBar News: Appeals Court Approves Class Action in Patient Health Record Fees Case:

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  • WisBar News
    August
    23
    2019

    Appeals Court Approves Class Action in Patient Health Record Fees Case


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    WI Supreme Court

    Aug. 23, 2019 – A state appeals court has ruled that a class action can proceed against a health care provider regarding fees the provider charged to obtain medical records despite fee exemptions that apply when attorneys request records on behalf of clients.

    Elizabeth Harwood sued entities within the Wheaton Franciscan health system and sought an order to certify a class of similarly situated patients who paid at least $28 for copies of their health records in the preceding six years.

    A circuit court certified the class, applying a newly revised version of the class certification rule, Wis. Stat. section 803.08, which governs the criteria that must be met before a circuit court can certify the case to proceed as a class action.

    The revised statute, effective July 1, 2018, imposes stricter requirements to be certified as a class and harmonizes the state class action law with federal law.

    In Harwood v. Wheaton Franciscan Services, 2018AP1836 (Aug. 20, 2019), a three-judge panel for the District I Court of Appeals affirmed, concluding the  circuit court “correctly considered the relevant facts” and applied the new statute consistent with federal law on class certification. The decision means the class action can proceed.

    The litigation followed an injury that Harwood sustained in a 2015 car accident. She signed HIPAA releases designating her attorneys to request and receive her certified medical records. Wheaton Franciscan Medical Group charged the attorneys $31.14, and another Wheaton Franciscan affiliate charged $61.31 for hospital records.

    Harwood’s class certification motion included 44 invoices showing Wheaton Franciscan charged certification and retrieval fees to patients who provided written authorization for their attorneys to request and receive their medical records. The Wisconsin Supreme Court, in 2017, ruled that patients are exempt from statutory certification and retrieval fees if their attorneys, through a HIPAA release, request records on their behalf.

    Like the circuit court, the appeals court rejected Wheaton Franciscan’s numerous arguments against class certification, including arguments that certification could not be certified under so-called “numerosity,” “superiority,” and “commonality” requirements.

    The appeals court decision, in an opinion by Judge Kitty Brennan, ruled that the trial court “applied the correct law to the facts of record and reached a reasonable decision,” noting the court carefully analyzed the case under state and federal class action law.

    “In its eleven-page order, the trial court set forth the applicable legal standards for each statutory requirement and stated a factual basis for concluding that each had been satisfied,” Judge Brennan wrote. 

    Wis. Stat. section 146.84 governs the penalties for violating state law related to patient health care records, including section 146.83, which relates to fees.




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