Elmadih v Primary Health Services Center et al
MEMORANDUM RULING re 35 MOTION for Summary Judgment filed by Primary Health Services Center. Signed by Judge Robert G James on 3/12/2018. (crt,Crawford, A)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
DOREA M. ELMADIH
CIVIL ACTION NO. 16-1601
JUDGE ROBERT G. JAMES
PRIMARY HEALTH SERVICES
CENTER, ET AL.
MAG. JUDGE KAREN L. HAYES
Before the Court is a Motion for Summary Judgment [Doc. No. 35] filed by Defendant
Primary Health Services Center. Plaintiff Dorea M. Elmadih opposes the motion. [Doc. No. 37].
For reasons assigned below, the motion is GRANTED IN PART AND DENIED IN PART.
FACTS AND PROCEDURAL HISTORY
On June 16, 2014, Plaintiff received dental treatment at Defendant Primary Health Services
Center’s (“PHSC”) facility.
On approximately July 10, 2014, Plaintiff signed, dated, and printed her name on a blank
form entitled, “Authorization to Use or Disclose Protected Health Information” (“the blank
authorization”). [Doc. Nos. 37-11, 37-12]. When Plaintiff signed the form, the blank for inserting
the provider authorized to disclose protected health information was vacant, the blanks for Plaintiff’s
name, social security number, date of birth, and address were vacant, the blanks for the particular
information to be disclosed and dates of treatment were vacant, and the blank for inserting the party
to whom information should be provided was vacant. [Doc. No. 37-12].
On August 4, 2014, Plaintiff’s counsel sent an “Authorization to Use or Disclose Protected
Health Information” (“the first authorization”) to PHSC, mistakenly requesting copies of Plaintiff’s
medical records from June 18, 2014, rather than June 16, 2014. [Doc. No. 37-4, pp. 3-4]. Plaintiff
did not actually sign the first authorization; rather, Plaintiff’s counsel created the first authorization
“by copying” the blank authorization. [Doc. No. 37-1, p. 1]. Plaintiff’s counsel’s assistant then
“filled in the provider’s name and other identifying information, including what she believed to be
the correct date of treatment (June 18, 201) onto the copy of the original blank release.” [Doc.
No. 37-1, p. 1].
On August 29, 2014, PHSC advised Plaintiff’s counsel that it had “no records responsive to
the dates [of treatment listed on the first] authorization.” [Doc. No. 35-4, p. 1]. “PHSC had no
records on [Plaintiff] from June 18, 2014, forward.” [Doc. No. 35-2, p. 1].
On September 3, 2014, Plaintiff’s counsel’s assistant “prepared a second duplicate medical
release [“the second authorization”] using the correct [treatment] date of June 16, 2014 and sent
another request for medical records . . . .” [Doc. Nos. 37-1, p. 2; 37-7]. The second authorization
“was simply the [first] authorization with the dates of requested records altered from June 18, 2014
to June 16, 2014.” [Doc. Nos. 35-2, p. 2; 37-7, p. 2]. PHSC responded to the second authorization
on September 15, 2014:
The second request . . . clearly is nothing more than an alteration of the first request
wherein the date range for the requested records was changed. Thus, the altered
request does not comply with the strict requirements of [the Health Insurance
Portability and Accountability Act (“HIPAA”)] . Accordingly, PHSC cannot and will
not process this request inasmuch as it was not executed by [Plaintiff] in the form
[Doc. No. 35-6, p. 1]. PHSC “pointed out [the] deficiencies” to Plaintiff’s counsel “and requested
that he merely send a new authorization . . . that was signed by [Plaintiff].” [Doc. No. 35-1, p. 6].
But, according to PHSC, Plaintiff’s counsel refused to send a proper authorization “and instead filed
the instant suit.” Id.
On September 16, 2014, Plaintiff’s counsel sent a letter to PHSC, claiming that PHSC
violated LA. REV. STAT. § 40:1165.1(A)(2)(b)(i) when it declined to provide the medical records that
Plaintiff’s counsel requested in the second authorization. [Doc. No. 37-9, p. 2].
Plaintiff’s counsel maintains that he sent a third authorization to PHSC on January 16, 2015,
which Plaintiff signed on the same date. [Doc. Nos. 37-1, p. 3; 37-10, p. 2]. PHSC contends that
it “has no records that it ever received” the third authorization. [Doc. No. 40, p. 1].
Plaintiff filed suit in Monroe City Court on May 29, 2015, alleging dental malpractice and,
pertinent here, that PHSC’s “refusal to comply and fulfill the requests . . . amounts to violations of
LA R.S. 40:1299.96.”1 [Doc. No. 1-2, p. 4]. Defendants removed the proceeding to this Court on
November 18, 2016. [Doc. No. 1].
PHSC filed the instant Motion for Summary Judgment on January 10, 2018. [Doc. No. 35].
Plaintiff responded to the motion on February 1, 2018 [Doc. No. 37], and PHSC replied on February
12, 2018 [Doc. No. 40].
LAW AND ANALYSIS
Standard of Review
Summary judgment is appropriate when the evidence before a court shows “that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
FED. R. CIV. P. 56(a). A fact is “material” if proof of its existence or nonexistence would affect the
outcome of the lawsuit under applicable law in the case. Anderson v. Liberty Lobby, Inc., 477 U.S.
The legislature redesignated LA. REV. STAT. 40:1299.96 as LA. REV. STAT. § 40:1165.1
242, 248 (1986). A dispute about a material fact is “genuine” if the evidence is such that a
reasonable fact finder could render a verdict for the nonmoving party. Id.
“[A] party seeking summary judgment always bears the initial responsibility of informing
the district court of the basis for its motion, and identifying those portions of ‘the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,’
which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986) (quoting Anderson, 477 U.S. at 247). “The moving party may
meet its burden to demonstrate the absence of a genuine issue of material fact by pointing out that
the record contains no support for the non-moving party’s claim.” Stahl v. Novartis Pharm. Corp.,
283 F.3d 254, 263 (5th Cir. 2002). Thereafter, if the non-movant is unable to identify anything in
the record to support its claim, summary judgment is appropriate. Id. “The court need consider only
the cited materials, but it may consider other materials in the record.” FED. R. CIV. P. 56(c)(3).2
In evaluating a motion for summary judgment, courts “may not make credibility
determinations or weigh the evidence” and “must resolve all ambiguities and draw all permissible
inferences in favor of the non-moving party.” Total E & P USA Inc. v. Kerr–McGee Oil and Gas
Corp., 719 F.3d 424, 434 (5th Cir. 2013) (citations omitted). While courts will “resolve factual
controversies in favor of the nonmoving party,” an actual controversy exists only “when both parties
have submitted evidence of contradictory facts.” Little v. Liquid Air. Corp., 37 F.3d 1069, 1075 (5th
Cir. 1994). To rebut a properly supported motion for summary judgment, the opposing party must
show, with “significant probative evidence,” that a genuine issue of material fact exists. Hamilton
However, Rule 56 does not require a court to “sift through the record in search of
evidence to support a party’s opposition to summary judgment.” Willis v. Cleco Corp., 749 F.3d
314, 317 (5th Cir. 2014) (quoted source omitted).
v. Segue Software, Inc., 232 F.3d 473, 477 (5th Cir. 2000) (emphasis added). “‘If the evidence is
merely colorable, or is not significantly probative,’ summary judgment is appropriate.” Cutting
Underwater Tech. USA, Inc. v. Eni U.S. Operating Co., 671 F.3d 512, 517 (5th Cir. 2012) (quoting
Anderson, 477 U.S. at 248).
Relatedly, there can be no genuine dispute as to a material fact when a party fails “to make
a showing sufficient to establish the existence of an element essential to that party’s case, and on
which that party will bear the burden of proof at trial.” Celotex Corp., 477 U.S. at 322-23. This is
true “since a complete failure of proof concerning an essential element of the nonmoving party’s case
necessarily renders all other facts immaterial.” Id. at 323.
Whether the Second Authorization was Proper
Plaintiff, to reiterate, alleges that PHSC violated LA. REV. STAT. § 40:1165.1(A)(2)(b)(i)
when it declined to provide the medical records requested in the second authorization. [Doc. No.
1-2, p. 4]. LA. REV. STAT. § 40:1165.1(A)(2)(b) (emphasis added) provides in pertinent part:
(i) a patient or his legal representative . . . shall have a right to obtain a copy of the
entirety of the records in the form in which they exist . . . upon furnishing a signed
(ii) any violation of Items (i) or (ii) of this Subparagraph shall be subject to a civil
penalty of five hundred dollars per violation, plus attorney fees and costs at the
discretion of the court, payable to the requestor of the medical records.
Here, Plaintiff’s counsel did not furnish a signed authorization. While Plaintiff did sign the
blank authorization, counsel did not furnish the blank authorization. Moreover, because the blank
authorization lacked any information to authorize, Plaintiff authorized nothing when she signed it.
Plaintiff’s counsel did furnish the second authorization. However, counsel admits that
Plaintiff never signed it: “Whenever [Plaintiff’s counsel] instructed his paralegal to make a medical
records request, [counsel’s] paralegal would run a copy of the [blank] authorization on the office
copier machine, fill in the provider’s name and date of treatment and other pertinent information,
then forward the authorization to the provider . . . .” [Doc. No. 37, p. 7]. Instead of furnishing a
signed authorization, Plaintiff’s counsel furnished an authorization form with a copy of Plaintiff’s
signature, which counsel reproduced from the blank authorization that Plaintiff signed. [Doc. No.
37-12, p. 1]. PHSC did not, consequently, violate LA. REV. STAT. § 40:1165.1(A)(2)(b)(i).3
Citing the affidavits of several attorneys, Plaintiff argues that “use of reproduction
authorizations is the standard method for obtaining medical records in Louisiana . . . .” [Doc. No.
37, p. 7]. Custom, however, does not excuse noncompliance with LA. REV. STAT. §
Plaintiff also argues that PHSC must have known that the first authorization, like the second,
also contained a reproduction of Plaintiff’s signature because “anyone looking at the document
would be aware that it was a copy of an original document . . . .” [Doc. No. 37, p. 8]. Plaintiff
reasons that PHSC actually produced information concerning Plaintiff’s treatment when PHSC
stated, in response to the first authorization, that it had no record of treatment on the requested date.
A signature reproduced from one document and applied to another, distinct document
provides no indicia of reliability, absent any accompanying grant of authority from the signatory
to act on the signatory’s behalf (such as a specific written mandate or procuration authorizing
another to either utilize the signatory’s signature or to add content to a previously-signed
document). See In re Gould, 37,400 (La. App. 2 Cir. 8/20/03), 852 So. 2d 1123 (holding that a
brother’s furnishing of a valid power of attorney from patient was sufficient written authorization
from patient for release of medical records); see generally Stanfield v. White, 535 So. 2d 753,
756 (La. Ct. App.) (“The filling in of a blank in a written instrument presents a question of
authority and not one of alteration.”); see also La. Civ. Code Ann. art. 2993(“[W]hen the law
prescribes a certain form for an act, a mandate authorizing the act must be in that form.”).
Plaintiff then theorizes that if PHSC is correct that a signature reproduced from one document and
applied to another does not constitute a signed authorization, PHSC should not have produced
protected health information after receiving the first authorization. Even assuming, however, that
notification of the absence of medical records amounts to producing medical records, this argument
is irrelevant because Plaintiff seeks damages from PHSC for failing to provide medical records, not
for providing records.4
Next, Plaintiff argues that PHSC did not properly reject the second authorization under
HIPAA. [Doc. No. 37, p. 9]. Defendant maintains that, in addition to rejecting the second
authorization under state law, it rejected the second authorization under the following HIPAA
provisions: 45 C.F.R. § 164.508(b)(2)(ii) and (v).5 Whether PHSC properly rejected the second
authorization under HIPAA is, however, inapposite because Plaintiff only seeks damages under LA.
REV. STAT. § 40:1165.1(A)(2)(b)(i). In other words, even assuming, for the sake of argument, that
PHSC should have provided records under HIPAA, PHSC properly withheld records under state
Plaintiff also suggests that PHSC harbored an ulterior motive in rejecting the second
authorization. Plaintiff argues that “PHSC’s action in processing this first [authorization]
implies that PHSC personnel believe that a reproduction authorization is HIPAA-compliant.”
[Doc. No. 37, p. 8]. Plaintiff suggests, in other words, that because PHSC processed the first
authorization, which contained a signature reproduced from another document, yet declined to
process the second authorization with a signature reproduced from another document, PHSC
must have rejected the second authorization for reasons other than the absence of an original
signature. Whether Plaintiff’s suspicions are true, however, is irrelevant because Plaintiff did not
sign the second authorization.
These provisions provide, respectively, that an authorization is not valid if “[t]he
authorization has not been filled out completely” with a “[s]ignature of the individual and date”
or if “[a]ny material information in the authorization is known by the covered entity to be false.”
Neither party offers a preemption argument or analysis.
Finally, Plaintiff argues that “a medical authorization which is electronically signed must .
. . be accepted as the legal equivalent of a handwritten signature.” [Doc. No. 37, p. 11]. Plaintiff’s
counsel, however, did not utilize an electronic signature.7
Accordingly, there is no genuine dispute concerning whether Plaintiff signed the second
authorization. PHSC is, therefore, entitled to judgment as a matter of law on Plaintiff’s claim that
it improperly withheld records following the second authorization. The motion is, to this extent,
Whether Plaintiff Furnished the Third Authorization
Plaintiff’s counsel maintains that he sent the third authorization, which Plaintiff did sign, to
PHSC on January 16, 2015, but PHSC did not respond. [Doc. Nos. 37-1, p. 3; 37-10, p. 2]. While
PHSC contends that it “has no records that it ever received” the third authorization,8 Plaintiff’s
counsel’s paralegal avers that she “sent the request via mail . . . .” [Doc. No. 37-2, p. 3]. Thus, there
is a genuine dispute concerning whether Plaintiff furnished the third authorization. The motion for
summary judgment is, to this extent, DENIED.
For the foregoing reasons, Defendant Primary Health Services Center’s Motion for Summary
Judgment [Doc. No. 35] is GRANTED IN PART AND DENIED IN PART. The motion is
GRANTED with respect to Plaintiff’s claim that PHSC improperly withheld records following the
second authorization, and this claim is DISMISSED WITH PREJUDICE. The motion is otherwise
As PHSC phrases it, “The act of photocopying a handwritten Authorization does not
convert it to an electronic signature.” [Doc. No. 40, p. 4].
[Doc. No. 40, p. 1].
MONROE, LOUISIANA, this 12th day of March, 2018.
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