Ortiz v. IOD Inc. et al
Filing
82
OPINION AND ORDER.....Defendants October 31, 2018 motions for judgment on the pleadings are granted. The Clerk of the Court is directed to close the case. (Signed by Judge Denise L. Cote on 5/7/2019) (gr) Transmission to Orders and Judgments Clerk for processing.
Case 1:17-cv-04039-DLC Document 82 Filed 05/07/19 Page 1 of 23
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-------------------------------------- X
:
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.
:
:
-------------------------------------- X
17cv4039(DLC)
OPINION & ORDER
APPEARANCES
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
Case 1:17-cv-04039-DLC Document 82 Filed 05/07/19 Page 2 of 23
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.
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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.
In the alternative, NYPH moves for certification of an
interlocutory appeal of certain jurisdictional rulings in the
February 2018 Opinion and the viability of an implied private
right of action under § 18.
1
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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 (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.”
2016).
Nicosia v. Amazon.com, Inc., 834 F.3d 220, 239 (2d Cir.
“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
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injured, not that injury has been suffered by other,
unidentified members of the class to which they belong.”
Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 n.6 (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 (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
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claims for injunctive relief on her behalf.
incorrect.
The defendants are
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.
L. (“PHL”) § 18(1)(g).
See N.Y. Pub. Health
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 (2014) (citation omitted).
“[I]t is for the courts to determine, in light of those
provisions, particularly those relating to sanction and
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enforcement, and their legislative history . . . what the
Legislature intended.”
Burns Jackson Miller Summit & Spitzer v.
Linder, 59 N.Y.2d 314, 325 (1983); see also Uhr v. E. Greenbush
Cent. Sch. Dist., 94 N.Y.2d 32, 38 (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 (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; 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
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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 §§ 1213.
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.
Section 12 was recently amended with certain changes going into
effect beginning April 1, 2020. Those amendments would allow
the Attorney General, upon request of the Commissioner of
Health, to bring an action for injunctive relief. The amendment
effective April 1, 2020 further provides that, “it is the
purpose of this section to provide additional and cumulative
remedies, and nothing herein contained shall abridge or alter
rights of action or remedies now or hereafter existing . . . .”
PHL § 12(6) (effective Apr. 1, 2020).
2
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On July 21, 1986, the New York Legislature amended the
Public Health Law by adding § 18, which allows patients and
other “qualified persons” access to patient medical records.
1986 N.Y. Sess. L., ch. 497, § 1.
Section 18(2)(a) requires
health care providers to provide an opportunity for the
inspection of patient information on written request.
Section
18(2)(d) provides a right to a copy of patient records.
It
states that, “upon the written request of any qualified person,
a health care provider shall furnish to such person, within a
reasonable time, a copy of any patient information
requested . . . .”
PHL § 18(2)(d). 3
The statute also gave providers a right to reimbursement.
Section 18(2)(e) authorizes the provider to impose “a reasonable
charge for all inspections and copies, not exceeding the costs
incurred by such provider.”
Id. § 18(2)(e).
It further
provides that “[a] qualified person shall not be denied access
to patient information solely because of inability to pay.”
Id.
The 1986 amendment to the Public Health Law also authorized
health care providers to restrict a qualified person’s access to
medical records in certain circumstances.
Under § 18(3), a
health care provider “may deny access to all or a part of the
All citations are to the current version of the statute.
Unless otherwise noted, language quoted from § 18 is unchanged
since 1986.
3
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information” if, for example, the records requested would
“reasonably be expected to cause substantial and identifiable
harm to the subject.”
Id. § 18(3)(d).
In the event of a denial
of access, § 18(3)(e) grants the qualified person an
administrative remedy in the form of a “right to obtain, without
cost, a review of the denial by the appropriate medical record
access review committee.”
Id. § 18(3)(e). 4
In the event the
committee denies access “in whole or in part,” it is required to
“notify the qualified person of his or her right to . . .
commence, upon notice, a special proceeding in supreme
court requiring the provider to make available the information
for inspection or copying.”
Id. § 18(3)(f).
This right to judicial review, however, was accompanied by
more limited remedies than those ordinarily available in an
Article 78 special proceeding.
Article 78 generally permits
recovery for “restitution or damages . . . incidental to the
primary relief sought.”
C.P.L.R. § 7806; Kirschner v. Klemons,
225 F.3d 227, 238-39 (2d Cir. 2000).
The 1986 amendment
prohibited qualified persons from seeking incidental damages.
It provided that “the relief available pursuant to [§ 18(3)(f)]
shall be limited to a judgement requiring the provider to make
The Commissioner of Health is required by statute to “designate
medical record access review committees to hear appeals of the
denial of access . . . .” PHL § 18(4).
4
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available to the qualified person the requested information for
inspection or copying.”
PHL § 18(3)(f).
Section 18(11)
provided that “[n]o proceeding shall be brought or penalty
assessed, except as provided for in this section, against a
health care provider, who in good faith, denies access to
patient information.”
Id. § 18(11).
Against this backdrop, on June 12, 1991, the New York
Legislature passed an amendment to § 18 that is the subject of
this litigation.
1991 N.Y. Sess. L., ch. 165, § 49.
That
amendment added a single sentence to § 18(2)(e), limiting the
“reasonable charge” which a health care provider may impose in
connection with copies of medical records to not more than $0.75
per page.
As currently enacted, § 18(2)(e) provides as follows:
The provider may impose a reasonable charge for all
inspections and copies, not exceeding the costs
incurred by such provider . . . . However, the
reasonable charge for paper copies shall not exceed
seventy-five cents per page. A qualified person shall
not be denied access to patient information solely
because of inability to pay.
PHL § 18(2)(e) (emphasis added).
At issue is whether, by prohibiting health care providers
from charging more than $0.75 per page in connection with
inspecting or copying medical records, the Legislature implied a
private right of action.
For the reasons described below, the
text, structure, and legislative history of § 18(2)(e) do not
permit a finding that New York’s Legislature intended to create
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a private right of action.
As a threshold matter, there is no dispute that the first
factor weighs in favor of recognizing a private right of action
for violations of § 18(2)(e).
The price-per-page provision was
added to § 18 in 1991, five years after the Legislature first
afforded consumers an opportunity to inspect and obtain copies
of their medical records.
1991 N.Y. Sess. L., ch. 165, § 49.
The provision capped the charges health care providers may
impose on qualified persons for medical records.
Ortiz is among
those qualified persons for whose particular benefit § 18(2)(e)
was enacted.
See Cruz, 22 N.Y.3d at 70.
It is less clear that the recognition of a private right of
action would promote the legislative purpose in enacting the
statute, which is the second factor.
The one-sentence amendment
that was made to § 18 was a miniscule part of a massive overhaul
to the Public Health Law that principally revised New York’s
Medicaid program.
See 1991 N.Y. Sess. L., ch. 165.
When the
bill was submitted to then Governor Mario Cuomo for approval, a
Memorandum from the Senate and various submissions were included
in the Bill Jacket for the Governor’s review. 5
Broadly speaking,
The New York Court of Appeals commonly relies on submissions
included in the Bill Jacket as a source of legislative history.
See, e.g., Kimmel v. State, 29 N.Y.3d 386, 398-400 (2017)
(citing various submissions included in a Bill Jacket).
5
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the Senate Memorandum explains that the purpose of the Act is
“to restrain the rapid growth in costs of the Medicaid system”
through “structural changes in the way Medicaid services are
provided.”
Senate Memorandum, Bill Jacket, L. 1991, ch. 165, at
19.
Two submissions included in the Bill Jacket -- one from the
New York State Office for the Aging and one from the New York
Public Interest Research Group -- addressed the price-per-page
provision in § 18 specifically.
Both submissions supported the
amendment as a means of curbing fees associated with access to
medical records.
The submission by the Office for the Aging
stated, in part:
These Sections impose a ceiling on the amount that may
reasonably be charged for paper copies of medical
records requested by patients and other “qualified
persons.” The New York State Office for the Aging
supports this measure and recommends careful
monitoring to help ensure that the ceiling of seventyfive cents per page not become a standard charge. The
reasonable cost of providing many medical records is
less than seventy-five cents per page.
Letter from the Office for the Aging, Bill Jacket, L. 1991, ch.
165, at 50.
By enacting the price-per-page provision, the
Legislature clearly intended to control patient costs associated
with access to medical records.
Because the threat of an
additional enforcement mechanism -- civil lawsuits against
health care providers -- would likely add to the growth in
medical costs, it is debatable whether recognition of a private
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right of action would promote the legislative purpose, whether
considered from the perspective of either § 18 alone or in the
context of the 1991 revisions to the Public Health Law in their
entirety.
The third factor is whether recognition of a private right
of action “would be consistent with the legislative scheme.”
Cruz, 22 N.Y.3d at 70 (citation omitted).
When discussing the
third factor, the Court of Appeals has repeatedly emphasized
deference to the enforcement mechanisms chosen by the
Legislature:
[T]he Legislature has both the right and the authority
to select the methods to be used in effectuating its
goals, as well as to choose the goals themselves.
Thus, regardless of its consistency with the basic
legislative goal, a private right of action should not
be judicially sanctioned if it is incompatible with
the enforcement mechanism chosen by the Legislature or
with some other aspect of the over-all statutory
scheme.
Id. at 70-71 (quoting Sheehy v. Big Flats Cmty. Day, 73 N.Y.2d
629, 634-35 (1989)).
A potent enforcement mechanism reflects a
legislative judgment that courts should not readily dismiss.
See Rhodes v. Herz, 920 N.Y.S.2d 11, 18 (App. Div. 1st Dep’t
2011).
“Where the Legislature has not been completely silent
but has instead made express provision for a civil remedy,
albeit a narrower remedy than the plaintiff might wish, the
courts should ordinarily not attempt to fashion a different
remedy, with broader coverage . . . .”
14
Sheehy, 73 N.Y.2d at
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636.
For this reason, the Court of Appeals has declined to
recognize a private right of action where “the Legislature
specifically considered and expressly provided for enforcement
mechanisms in the statute itself.”
Cruz, 22 N.Y.3d at 71
(citation omitted).
The New York Legislature has provided two mechanisms to
enforce the $0.75 maximum copying charge described in
§ 18(2)(e).
First, under § 12, the Legislature has authorized
the Commissioner of Health to impose substantial fines for
violations of any provision of the Public Health Law “for which
a civil penalty is not otherwise expressly prescribed by law.”
PHL § 12(1)(a)-(b).
Because § 18(2)(e) does not prescribe a
civil penalty, a violation of its terms may be subject to
enforcement through § 12.
Second, under § 13, the Legislature
has allowed New York citizens to enforce any provision of the
Public Health Law through an action under Article 78.
The
parties agree that an action under Article 78 would have allowed
Ortiz to obtain a judgment compelling NYPH to provide her with
copies of her medical records in compliance with § 18(2)(e) -that is, at a reasonable charge not more than $0.75 per page.
See In re Barbara Halio v. IOD Inc., 928 N.Y.S.2d 812, 812 (Sup.
Ct. Nassau Cty. 2011) (petition to compel medical records at no
more than $0.75 per page); In re Casillo v. St. John’s Episcopal
Hosp., Smithtown, 580 N.Y.S.2d 992, 993 (Sup. Ct. Suffolk Cty.
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1992) (petition to forward medical records at no more than $0.75
per page).
The authorization of enforcement by the Commissioner of
Health and the provision of a remedy pursuant to Article 78 are
each sufficient to foreclose the recognition of a private right
of action.
See, e.g., Schlessinger v. Valspar Corp., 686 F.3d
81, 87 (2d Cir. 2012) (“Section 395-a [of the N.Y. General
Business Law] expressly provides that the Attorney General may
bring suit against those who violate its mandate, so a private
right of action would not be consistent with legislative
intent.”); Signature Health Cntr. LLC v. State, 935 N.Y.S.2d
357, 362 (App. Div. 3d Dep’t 2011) (declining to imply private
right of action under New York Public Health Law § 2807 where
“there is no dispute that [plaintiffs] can obtain incidental
monetary damages . . . in the context of a CPLR article 78
proceeding”).
The Legislature’s intent to limit the scope of the remedies
under § 18 is confirmed by other provisions of the statute.
In
§ 18(3), for example, the Public Health Law provides that, in
the event of a denial of access to medical records, a qualified
person may seek review by a committee designated by the
Commissioner of Health.
PHL § 18(3)(f), (4).
If the committee
reaches an adverse decision, § 18 further authorizes the
qualified person to seek judicial review in an Article 78
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proceeding. 6
Id. § 18(3)(f).
Although § 18(3)(f) prohibits
recovery of incidental damages that may ordinarily be recovered
in an Article 78 proceeding, it allows for “a judgment requiring
the provider to make available to the qualified person the
requested information for inspection or copying.”
Id.
Section 18(11) provides further protection for health care
providers against lawsuits.
It prohibits any other proceedings
or penalties against health care providers who, “in good faith,
deny access to patient information.”
Id. § 18(11). 7
Given that the Legislature established specific
administrative and judicial remedies in § 18, “[i]t is fair to
infer that the Legislature considered carefully the best means
for enforcing the provisions of [the statute], and would have
created a private right of action . . . if it found it wise to
do so.”
McLean v. City of New York, 12 N.Y.3d 194, 201 (2009);
An action pursuant to N.Y. C.P.L.R. Article 78 is a “special
proceeding.” N.Y. C.P.L.R. § 7804.
6
Sections 18(12) further immunizes health care providers from
liability “arising solely from granting or providing access to
any patient information in accordance with this section.”
Although Sections 18(11) and (12) do not provide immunity for
overcharges in violation of § 18(2)(e), see Spiro v. Healthport
Tech., 73 F. Supp. 3d 259, 273 (S.D.N.Y. 2014), they should not
be read to imply a private right of action by negative
implication. As the Court of Appeals explained in Cruz, “this
would be an unusual application of the expressio unius doctrine
for it is typically used to limit the expansion of a right or
exception -- not as a basis for recognizing unexpressed rights
by negative implication.” Cruz, 22 N.Y.3d at 72.
7
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see also Franza v. State, 83 N.Y.S.3d 361, 363 (App. Div. 3d
Dep’t 2018) (citation omitted) (finding private right of action
“inconsistent with the legislative scheme” where statute
“provides recourse under CPLR article 78”).
While the
Legislature could have crafted a broader remedy, “[t]his is not
a case where the Legislature has simply prohibited or required
certain conduct, and left the mechanism of enforcement to the
courts.”
McLean, 12 N.Y.3d at 201. 8
Accordingly, a private
right of action would not be consistent with the legislative
scheme.
The plaintiff argues that a private right of action should
be allowed because § 18(2)(e) uses mandatory language that
confers rights on particular individuals.
He principally relies
on Maimonides Med. Cent. v. First United Am. Life Ins. Co., 981
N.Y.S.2d 739 (App. Div. 2d Dep’t 2014), and Medicare
Beneficiaries Def. Fund v. Memorial Sloan-Kettering Cancer
Cent., 603 N.Y.S.2d 1016 (Sup. Ct. N.Y. Cnty. 1993), which
recognized private rights of action.
His arguments are
unavailing.
In both of these cases, the courts found a private right of
Plaintiff’s citation to Negrin v. Norwest Mortgage, Inc., 700
N.Y.S.2d 184 (App. Div. 2d Dep’t 1999), is for this reason
inapposite. In Negrin, the statute provided “no regulatory
agency that would otherwise enforce compliance” with the law.
Id. at 191.
8
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action to exist when construing clauses contained within
statutory provisions that were addressed directly to the
remedies for a violation.
Section 18(2)(e) is not a remedies
provision; its is a standards provision.
In Maimonides, the court construed a New York insurance law
that imposed standards upon insurers for prompt payment of
claims.
981 N.Y.S.2d at 741.
In a section setting out remedies
for the failure to comply with those standards, the statute
stated:
In addition to the penalties provided in this chapter,
any insurer . . . that fails to adhere to the
standards contained in this section shall be obligated
to pay to the health care provider or person
submitting the claim, in full settlement of the claim
or bill for health services, the amount of the claim
or health care payment plus interest.
N.Y. Ins. L. § 3224-a (emphasis added).
The court found that
the obligation “to pay . . . the claim,” found in the remedies
section of the statute, authorized a private right of action.
Maimonides, 981 N.Y.S.2d at 747-50.
Likewise, in Medicare Beneficiaries Def. Fund, the court
addressed a clause in the statute’s description of a remedy, in
this case for a physician’s overcharge of Medicare
beneficiaries.
603 N.Y.S.2d at 1017-18.
The statute provided
that “a physician who is determined . . . to have violated the
provisions of this section shall be subject . . . to a
fine . . . .
In addition, . . . the physician shall refund to
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the beneficiary the amount collected in excess of the
limitations [provided herein].”
PHL § 19(4)(emphasis added).
Thus, the court found that the statute authorized suit for not
only a fine but also for a refund.
In both Maimonides and
Medicare Beneficiaries, therefore, the statutes expressly
mandated, within their remedies provisions, the payment of a
claim or a refund following a violation of the statute.
The sentence setting forth the maximum price-per-page in
§ 18(2)(e) bears none of the hallmarks of the provisions which
the courts in Maimonides and Medicare Beneficiaries found to
imply a private right of action.
Section 18(2)(e) sets forth
the standards with which providers must comply when providing
access to medical records.
Section 18(2)(e) is not a remedies
provision and therefore the sentence at issue does not appear in
the midst of a remedies provision.
Moreover, the sentence
itself sets out a maximum charge but not a remedy for an
overcharge.
It cannot fairly be read to authorize a private
right of action if the provider charged the person requesting a
copy of the records over $0.75 per page.
Plaintiff’s citation to Medicare Beneficiaries Def. Fund is
unavailing for other reasons as well.
Medicare Beneficiaries
concerned § 19 of the Public Health Law, where the Legislature
required physicians to “refund to the beneficiary the amount
collected in excess” of the “reasonable charge.”
20
PHL § 19(1),
Case 1:17-cv-04039-DLC Document 82 Filed 05/07/19 Page 21 of 23
(4).
Section 19 was added to the Public Health Law in July 1990
during the 213th legislative session.
572.
1990 N.Y. Sess. L, ch.
In the very next session -- less than one year later --
the Legislature enacted the amendment to § 18(2)(e) capping the
reasonable charge for copies of medical records at $0.75 per
page.
1991 N.Y. Sess. L., ch. 165, § 49.
Although enactment of
these two provisions are nearly contemporaneous, only § 19
requires a refund of charges that exceed the statutory limit.
“A due respect for the competence of the Legislature requires us
to conclude that the [different] remedial choices it made were
considered choices.”
People ex rel. Spitzer v. Grasso, 836
N.Y.S.2d 40, 49 (App. Div. 1st Dep’t 2007).
Without “strong
indicia of a contrary congressional intent,” it would be
inappropriate to disturb this legislative judgment.
Id.
(declining to recognize a private right of action where statute
authorized enforcement by the Attorney General).
Plaintiff next argues that a private right of action is
appropriate because “no special agency expertise is required to
determine whether Defendants charged more than the statutory
maximum.”
A court’s competence to perform calculations is not a
sufficient basis for concluding that a private right of action
is consistent with the legislative scheme.
In any event,
plaintiff is wrong to assume that actions brought under
§ 18(2)(e) would be resolved by simple calculation.
21
Section
Case 1:17-cv-04039-DLC Document 82 Filed 05/07/19 Page 22 of 23
18(2)(e) principally requires health care providers to impose “a
reasonable charge . . . not exceeding the costs incurred by such
provider.”
PHL § 18(2)(e).
Calculating damages in those cases
could require resource-intensive litigation.
As the court in
Casillo explained in 1992, “[t]he 1991 amendments capping
copying costs within the definition of ‘reasonable charge’ was
not intended to create a plethora of litigation where the courts
would be forced to determine what is an allowable fee in this
case or that case.”
580 N.Y.S.2d at 998.
Finally, plaintiff emphasizes that, in several other cases,
courts appear to have assumed that § 18(2)(e) accords qualified
persons a private right of action for damages.
One of these
decisions, Ruzhinskaya v. Healthport Techs., LLC, 291 F. Supp.
3d 484 (S.D.N.Y. 2018), which includes other claims besides a
§ 18 claim, is currently pending before the Second Circuit Court
of Appeals. 9
Id. at 502-03.
But none of the cases to which
plaintiff cites have decided the issue on the merits.
The
instant case appears to be the first case to squarely present
the issue for judicial resolution.
And, for the reasons stated
above, a private right of action cannot fairly be implied by the
An earlier opinion in that case assumed the existence of a
private right of action but noted that § 18’s “text and history
are silent as to the manner in which a requester’s right not to
be overcharged may be vindicated in court.” Ruzhinskaya, 311
F.R.D. 87, 97 (S.D.N.Y. 2015).
9
22
Case 1:17-cv-04039-DLC Document 82 Filed 05/07/19 Page 23 of 23
text and legislative history of § 18(2)(e).
Conclusion
Defendants’ October 31, 2018 motions for judgment on the
pleadings are granted.
The Clerk of the Court is directed to
close the case.
Dated:
New York, New York
May 7, 2019
__________________________________
DENISE COTE
United States District Judge
23
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