Wilson et al v. MRO Corporation et al
Filing
156
MEMORANDUM OPINION AND ORDER denying defendant Medi-Copy Services, Inc.'s 58 MOTION to Dismiss the amended complaint. Signed by Judge John T. Copenhaver, Jr. on 4/27/2017. (cc: counsel of record; any unrepresented parties) (taq)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
THOMAS M. WILSON SR., and
DANIEL HALSEY as ADMINISRATOR
of the ESTATE OF TAMARA HALSEY, and
JASON GRAZUTIES, and SANDRA SHEPPARD,
and ROBERT BRADLEY, and ARVADA MARTIN,
Individually and on behalf of all others
similarly situated,
Plaintiffs,
v.
Civil Action No. 2:16-5279
MRO CORPORATION, a Pennsylvania Corporation,
and CIOX HEALTH, LLC, a Georgia Corporation,
and MEDI-COPY SERVICES, INC., a Tennessee
Corporation,
Defendants.
MEMORANDUM OPINION AND ORDER
I. Introduction
Pending is a motion to dismiss the amended complaint,
filed by defendant Medi-Copy Services, Inc. (“Medi-Copy”) on
November 11, 2016.1
Plaintiffs Thomas M. Wilson, Sr., Daniel Halsey as
1
The motion to compel arbitration and to dismiss the amended
complaint, filed by defendant MRO Corporation (“MRO”) on
November 21, 2016 will be resolved in a separate memorandum
opinion and order.
Administrator of the Estate of Tamara Halsey, and Jason
Grazuties, individually and on behalf of all others similarly
situated, instituted this action against Medi-Copy, MRO and CIOX
Health, LLC (“CIOX”) by filing a complaint in the Circuit Court
of Kanawha County, West Virginia on April 28, 2016.
With the
consent of CIOX and MRO, Medi-Copy removed the action on June
10, 2016 on the basis of diversity jurisdiction and the Class
Action Fairness Act of 2005.
Plaintiffs filed a motion to amend the complaint to
add Sandra Sheppard, Robert Bradley, and Arvada Martin as
additional class representatives on September 23, 2016, which
the court granted on October 7, 2016.
Medi-Copy thereafter
filed the pending motion to dismiss.
The amended complaint alleges that defendants, who are
providers of patient health care records, charge patients more
for their heath care records than is permitted under West
Virginia law.
Amended Compl. at ¶¶ 1-3.
Specifically,
plaintiffs allege that defendants improperly billed and produced
paper copies of their medical records when the records were
stored electronically and when plaintiffs requested copies of
the records in electronic form and that they charge far in
excess of “the actual cost of labor, supplies, and postage
2
involved in providing copies of medical records to patients,
including Plaintiffs and others.”
Id. at ¶¶ 3, 26.
This case arises under the Health Care Records
Statute, contained in W. Va. Code §§ 16-29-1 and 16-29-2, which
prescribes that “[a]ny licensed . . . health care provider .
.
. shall, upon the written request of a patient, his or her
authorized agent or authorized representative, within a
reasonable time, furnish a copy . . . of all or a portion of the
patient’s record to the patient, his or her authorized agent or
authorized representative. . . .”
W. Va. Code § 16-29-1(a).
Section 16-29-1(d) states that [t]he provisions of this article
may be enforced by a patient, authorized agent or authorized
representative. . . .”
W. Va. Code § 16-29-1(d).
Plaintiffs state that MRO, Medi-Copy and CIOX have
entered into contracts with hospitals and other healthcare
providers in West Virginia in order to provide medical records
to patients and others on behalf of patients.
Id. at ¶ 14.
Pertaining to Medi-Copy, the amended complaint alleges that on
September 30, 2014, Jason Grazuties, “though his
representatives,” requested his medical records in electronic
form from the hospital, Logan Regional Medical Center.
31.
Id. at ¶
His counsel received an invoice from Medi-Copy dated
3
October 3, 2014, which included charges that exceeded those
permitted by law.
Id.
On November 23, 2015, Arvada Martin,
“through her representatives,” requested her medical records in
electronic form from the health care provider, Valley Health.2
Id. at ¶ 32.
Her counsel received an invoice from Medi-Copy
dated December 4, 2015, which included charges that exceeded
those permitted by law.
Id.
Plaintiffs allege that Medi-Copy
failed to comply with requests for electronic records.
33.3
Id. at ¶
The amended complaint further alleges that defendant has
overcharged other patients as well.
Id. at ¶ 35.
Plaintiffs bring this case as a class action on behalf
of those “who are patients of health care providers, or
designated representatives of patients of health care providers,
who Defendants charged an amount in excess of that allowed by
law for copies of medical records when they requested electronic
2
The amended complaint states, likely erroneously, that the
representatives of Ms. Martin requested her medical records on
November 23, 2016. The amended complaint was filed prior to
that date so that the reference must have been to November 23,
2015. See Amended Compl. at ¶ 32.
3
The amended complaint also contains allegations that relate to
plaintiffs Thomas Wilson, Sr., Sandra Sheppard, Daniel Halsey as
Administrator of the Estate of Tamara Halsey and Robert Bradley.
See Amended Compl. at ¶¶ 27-30. Because the amended complaint
alleges that these plaintiffs received medical records from MRO
and CIOX, they are not relevant to Medi-Copy’s pending motion,
and will not be discussed herein.
4
medical records be produced on electronic media, individually or
through another person acting on their behalf, from West
Virginia hospitals and other health care providers that contract
with Defendants to produce medical records.”
Id.
Plaintiffs
allege that the class may consist of thousands of people, making
joinder impracticable, and that there are common questions of
law and fact applicable to all class members.
Id. at ¶ 37.
They further allege that their claims are typical and that they
are adequate representatives of the class.
Id. at ¶¶ 38-39.
Count one alleges that defendants violated the West
Virginia Consumer Credit and Protection Act (“WVCCPA”), W. Va.
Code § 46A-6-101 et seq., by charging fees in excess of a
reasonable fee for the production of medical records in
electronic form.
Id. at ¶¶ 42-44.
Specifically, it states that
defendants’ policies and practices of charging “per page rates
and other charges for copies of medical records [that] exceed
the labor and supply cost of responding to requests for copies
violates the WVCCPA as an unfair or deceptive act or practice
pursuant to W. Va. Code §§ 46A-6-104 and 46A-6-102.”
45.
Id. at ¶
In addition, plaintiffs state that defendants’ policy of
charging some people higher amounts for copies of medical
records than they may charge others is an unfair or deceptive
5
act or practice.
Id. at ¶ 46.
Plaintiffs also allege that
defendants’ failure to inform consumers that they are entitled
to receive electronic medical records at a lower cost
constitutes “a failure to state a material fact that misleads
the public.”
Id. at ¶ 47.
Plaintiffs state that “[t]he charges
posed by the Defendants violate the WVCCPA and, further, violate
the limitations on charges for medical records as set forth in
HIPPA, the HITECH Act, West Virginia statute and related state
and federal regulations.”4
Id. at ¶ 48.
Count two alleges that defendants violated the Health
Care Records Statute, W. Va. Code § 16-29-2, by charging
plaintiffs and others in excess of their labor and supply costs
for their electronic medical records, resulting in fees that are
not reasonable.
Id. at ¶¶ 50, 53.
In addition, defendants did
not inform consumers or their representatives that they are
entitled to an electronic copy of their medical records at a
lower cost, which plaintiffs allege constitutes “a failure to
state a material fact that intends to mislead and violates West
4
Although Count one alleges that defendants’ actions violated
HIPPA and HITECH in addition to the WVCCPA, and elsewhere in the
amended complaint are allegations that defendants violated
federal law, it appears that plaintiffs’ claims contained in the
amended complaint are only pursuant to West Virginia, not
federal, law.
6
Virginia statute.”
Id. at ¶ 54.
Plaintiffs ask for this matter to be certified as a
class action, award judgment in their favor, including
injunctive relief that prohibits excessive and unlawful charges,
equitable relief that includes restitution and disgorgement of
moneys obtained from overcharges, recovery of excess charges,
civil penalties for violations of the WVCCPA, pre-judgment and
post-judgment interest, costs, attorneys fees, statutory
interest, punitive damages, and all other relief the court deems
appropriate.
Id. at p. 12.
In its motion to dismiss the amended complaint, MediCopy concedes that it is “a company that specializes in
providing health information management services.”
Medi-Copy’s
Memo. in Supp. of Mot. to Dismiss Amended Compl. at 3.
According to Medi-Copy, it “fulfilled request for medical
records made to Logan Regional Medical Center at the time Mr.
Grazuties records were requested. . . .
[and] also fulfilled
requests for medical records made to Valley Health at the time
Ms. Martin’s records were requested.”
Id.
Despite this, Medi-
Copy argues that plaintiffs have failed to plead a cognizable
injury in fact and additionally contends that the WVCCPA and
Health Care Records Statute do not cover plaintiffs’ claims so
7
that they therefore lack standing to bring their claims,
pursuant to Fed. R. Civ. P. 12(b)(1).
Id. at 4, 7-9.
The court
will address each of these arguments in turn.
II.
Rule 12(b)(1)
Federal district courts are courts of limited subject
matter jurisdiction, possessing “only the jurisdiction
authorized them by the United States Constitution and by federal
statute.”
United States ex. rel. Vuyyuru v. Jadhav, 555 F.3d
337, 347 (4th Cir. 2008).
As such, “there is no presumption
that the court has jurisdiction.”
Pinkley, Inc. v. City of
Frederick, 191 F.3d 394, 399 (4th Cir. 1999) (citing Lehigh
Mining & Mfg. Co. v. Kelly, 160 U.S. 327, 327 (1895)).
Indeed,
when the existence of subject matter jurisdiction is challenged
under Rule 12(b)(1), “[t]he plaintiff has the burden of proving
that subject matter jurisdiction exists.”
Evans v. B.F. Perkins
Co., 166 F.3d 642, 647 (4th Cir. 1999); see also Richmond,
Fredericksburg, & Potomac R .R. Co. v. United States, 945 F.2d
765, 768 (4th Cir. 1991).
If subject matter jurisdiction is
lacking, the claim must be dismissed.
See Arbaugh v. Y & H
Corp., 546 U.S. 500, 506 (2006).
Subject matter jurisdiction may be attacked by a
8
defendant with either a facial or a factual challenge.
United States, 585 F.3d 188, 192 (4th Cir. 2009).
Kerns v.
In a facial
challenge, the defendant is asserting that the allegations
contained in the complaint fail to sufficiently establish the
existence of subject matter jurisdiction.
Id.
In a facial
attack, the plaintiff is “afforded the same procedural
protection as she would receive under a Rule 12(b)(6)
consideration,” so that “facts alleged in the complaint are
taken as true,” and the defendant’s motion “must be denied if
the complaint alleges sufficient facts to invoke subject matter
jurisdiction.”
Id.
In a factual challenge, a defendant may
argue “that the jurisdictional allegations of the complaint
[are] not true.”
Id.
This permits a trial court to consider
extrinsic evidence or hold an evidentiary hearing to “determine
if there are facts to support the jurisdictional allegations.”
Id.
III. Standing
Medi-Copy argues that plaintiffs lack standing to
bring their claims for two reasons.
First, it contends that
because the law firm Tiano O’Dell PLLC requested and paid for
plaintiffs’ medical records, it is Tiano O’Dell, not plaintiffs
themselves, who suffered an injury from any alleged overbilling
9
by them.
Medi-Copy’s Memo. in Supp. of Mot. to Dismiss Amended
Compl. at 5-6.
Second, Medi-Copy states that the West Virginia
Consumer Credit and Protection Act (“WVCCPA”) and the Health
Care Records Statute do not govern the transactions alleged in
the amended complaint.
Id. at 7-9.
As these are facial and not
factual challenges to plaintiffs’ standing, the court will
accept all allegations in the amended complaint as true and
determine whether plaintiffs have sufficiently established a
basis for subject matter jurisdiction.
See Kerns, 585 F.3d at
192.
A. Applicable Law
Standing is generally addressed at the motion to
dismiss stage under Fed. R. Civ. P. 12(b)(1) because “Article
III gives federal courts jurisdiction only over cases and
controversies and standing is a integral component of the case
or controversy requirement.”
CGM, LLC v. BellSouth
Telecommunications, Inc., 664 F.3d 46, 52 (4th Cir. 2011)
(internal citations and quotations omitted).
“To satisfy the
constitutional standing requirement, a plaintiff must provide
evidence to support the conclusion that: (1) ‘the plaintiff ...
suffered an injury in fact — an invasion of a legally protected
interest which is (a) concrete and particularized, and (b)
10
actual or imminent, not conjectural or hypothetical’; (2) ‘there
[is] a causal connection between the injury and the conduct
complained of’; and (3) ‘it [is] likely, as opposed to merely
speculative, that the injury will be redressed by a favorable
decision.’”
White Tail Park, Inc. v. Stroube, 413 F.3d 451, 458
(4th Cir. 2005) (quoting Lujan v. Defenders of Wildlife, 504
U.S. 555, 560-62 (1992).
At the motion to dismiss stage, “general factual
allegations of injury resulting from the defendant’s conduct may
suffice, for on a motion to dismiss we presume that general
allegations embrace those specific facts that are necessary to
support the claim.”
Lujan, 504 U.S. at 561.
The court may
accept as true allegations that are supported by adequate
“‘factual matter’ to render them ‘plausible on [their] face.’”
Beck v. McDonald, 848 F.3d 262, 270 (4th Cir. 2017) (citing
Ashcroft, 556 U.S. 662, 678 (2009).
“The same presumption of
truth” does not apply to “conclusory statements and legal
conclusions” contained in the complaint.
Id.
B. Injury In Fact
Medi-Copy contends that because the amended complaint
alleges that plaintiffs requested their medical records “through
11
[their] representatives” and because Tiano O’Dell, not
plaintiffs, paid for plaintiffs’ medical records, they have not
suffered an injury in fact by their alleged overbilling.
Medi-
Copy’s Memo. in Supp. of Mot. to Dismiss Amended Compl. at 5-6.
In response, plaintiffs argue that while persons at
Tiano O’Dell requested and paid for plaintiffs’ medical records,
plaintiffs, who were clients of Tiano O’Dell, executed Fee
Agreements, which obligated plaintiffs to reimburse “all costs
and expenses incurred in and about the institution and
prosecution of said suit or claim . . . and shall be deducted
after the contingency fee is calculated.”
Copy at 4-5.
Pls.’ Resp. to Medi-
Plaintiffs contend that because they are obligated
to reimburse Tiano O’Dell, and in fact, Mr. Grazuties and Ms.
Martin have already reimbursed the firm, they have standing to
challenge the alleged overbilling by defendants.
Id.
Medi-Copy’s reply states that despite plaintiffs’
assertions, the amended complaint contains no allegations that
plaintiffs were required to reimburse Tiano O’Dell for these
expenses.
Medi-Copy’s Memo. in Supp. of Mot. to Dismiss Amended
Compl. at 5-6.
In support of the position that the amended
complaint does not adequately allege an injury in fact, MediCopy cites to Spiro v. Healthport Technologies, LLC.
12
73 F.
Supp. 3d 259 (S.D.N.Y. 2014).
In Spiro, the court found that
plaintiffs, who were individuals alleging that defendants
overcharged them for their medical records under New York law,
did not have standing to pursue their claims because as written,
the complaint did not allege that plaintiffs were obligated to
reimburse their attorney, who originally requested and paid for
the records.
Id. at 268.
The court dismissed the case for lack
of jurisdiction, expressly permitting plaintiffs to amend the
complaint to state that under the fee agreement executed by
plaintiffs with their attorney, they were obligated to reimburse
the medical record fees charged by defendants.
Id. at 269.
Plaintiffs argue that Carter v. HealthPort
Technologies, LLC, is more relevant to this case.
(2d Cir. 2016).
822 F.3d 47
In Carter, plaintiffs similarly sued
defendants, who they alleged overbilled them for their medical
records in violation of state law.
Id. at 52.
The complaint
alleged that each plaintiff, “through [her or his] counsel, . .
. requested medical records from” the treating hospital.
52 (internal quotations omitted).
Id. at
The complaint further alleged
that each plaintiff paid the charge provided by defendants
“though [his or her] counsel.”
Id.
The Second Circuit determined that the district court
13
erred in finding that the plaintiffs lacked standing based on
the allegations contained in the complaint.
Id. at 58.
The
court found that the allegations that the plaintiffs requested
and paid for their medical records through his or her counsel
“are detailed factual allegations that the plaintiffs were the
principals, who acted through their agents in requesting and
paying for the records.”
Id.
Combined with the factual
allegation that “the ultimate expense” for the records was borne
by “Plaintiffs and other Class members,” the court found that
the complaint described the agency relationships between the
plaintiffs and their attorney so that each plaintiff acted
“through [his or her] counsel” in requesting and paying the fees
demanded in exchange for providing the medical records, and that
plaintiffs bore the “ultimate” expense.
Id.
Based on these
allegations, the court found that the complaint “sufficiently
alleged that it [was] the client[s] who w[ere] injured.”
Id. at
58-59.
In the amended complaint, it is individually alleged
that each of the named plaintiffs “through [his or her]
representatives requested” his or her medical records.
Compl. at ¶¶ 27, 28, 28, 29, 31, 32.
Amended
It is further alleged
“Plaintiff’s counsel received an invoice” from Medi-Copy.
14
Id.
For example, as to Jason Grazuties, it is alleged that,
On September 30, 2014, Jason Grazuties, through his
representatives, requested a copy of his medical records in
electronic form from Logan Regional Medical Center.
Plaintiff’s counsel received an invoice from Medi-Copy
Services, Inc., dated October 3, 2014. The charges exceed
those permitted by law.
Id. at ¶ 31.
The amended complaint additionally states,
“Defendants have overcharged Plaintiffs and systematically
overcharge other patients who seek their protected health
information” and it characterizes the actions of defendants as a
“systematic assessment and collection of improper and excessive
charges that Plaintiffs and others paid for copies of personal
medical records.”
Id. at ¶¶ 34, 1.
Medi-Copy included as exhibits with its motion to
dismiss, invoices that show that Tiano O’Dell requested and paid
for plaintiffs’ medical records.
See Exhibits A-C to Medi-
Copy’s Motion to Dismiss the Amended Complaint.
These documents
support the claims in the amended complaint that plaintiffs
requested their medical records through their representatives,
persons at Tiano O’Dell, and that plaintiffs’ counsel received
an invoice for each record request.
The invoices attached to
the amended complaint additionally show that an employee of
Tiano O’Dell requested the medical records.
15
See ECF Doc. Nos.
38-1, 2, & 3.
Because the allegations contained in Medi-Copy’s
exhibits do not factually attack the allegations in the amended
complaint, the court may not consider evidence outside of the
pleadings in making the determination whether plaintiffs have
alleged an injury in fact.
See Kerns, 585 F.3d at 192.
When combined with the assertions in the amended
complaint that plaintiffs were overcharged by Medi-Copy and that
plaintiffs “paid for copies of personal medical records,” the
complaint sufficiently alleges an agency relationship whereby
each plaintiff acted through their counsel to request and pay
for their medical records.
See Carter, 822 F.3d at 58-59.
Moreover, because the amended complaint states that it was the
plaintiffs who were overcharged for the records, it sufficiently
alleges that plaintiffs have or will ultimately bear the cost of
the charges, as in Carter.
See Amended Compl. at ¶¶ 1, 4, 26;
see also Carter, 822 F.3d at 58.
Accordingly, plaintiffs have
adequately pled an injury in fact as a result of the alleged
overbilling.5
5
Although plaintiffs have a contingency agreement with Tiano
O’Dell, so that they will only reimburse the law firm for copies
of their medical records if they are successful in litigation,
this interest, although somewhat uncertain, creates a present
injury to plaintiffs. See, e.g., Clinton v. City of New York,
524 U.S. 417, 418 (1998) (finding that New York City had
16
Medi-Copy also states that it has reimbursed Tiano
O’Dell for any alleged overcharge for Mr. Grazuties’ medical
records.
Medi-Copy Memo. in Supp. of Mot. to Dismiss Amended
Compl. at 6.
In addition, since June 30, 2015, it “has
implemented a cost-based fee for production of medical records
requested from Logan Regional Medical Center.
It is under this
cost-based fee schedule that Ms. Martin’s attorney was invoiced
for the production of her records.”
Id. at 6-7.
Because of
this, Medi-Copy contends, “Mr. Grazuties and Ms. Martin have
suffered no damages.”
Id. at 7.
Plaintiffs respond that despite the refund issued by
Medi-Copy, plaintiffs were still charged in excess of a
reasonable, cost-based fee for copies of their medical records.
Pls.’ Resp. to Medi-Copy at 5.
Plaintiffs also assert, “Medi-
Copy’s revised billing . . . still exceeds the state and
federally permitted charge for electronic medical records.”
Id.
standing to challenge the line item veto because, as a result of
its use, the state “now has a multibillion dollar contingent
liability that had been eliminated” prior to the exercise of the
line item veto so that the state and New York City “suffered an
immediate, concrete injury the moment the President canceled the
section and deprived them of its benefits.”); see also Spiro, 73
F. Supp. 3d at 269 (explaining that a contingency agreement that
required the plaintiffs to repay fees for copies of medical
records if their cases were successful sufficiently establishes
an injury in fact).
17
Although the parties appear to dispute whether or not plaintiffs
suffered any injury due to refund and revised billing by MediCopy, at the pleading stage, plaintiffs’ allegations that MediCopy’s charges are in excess of those permitted under the law
are also sufficient to state an injury in fact.
C. Plaintiffs’ Claims Governed by the Relevant Statutes
a. West Virginia Consumer Credit and Protection Act
Medi-Copy insists that plaintiffs may not bring a
claim under the WVCCPA because persons at Tiano O’Dell requested
plaintiffs’ medical records on their behalf for the purposes of
initiating litigation, which, it says, is not a consumer
transaction as defined in the WVCCAP.
Medi-Copy’s Memo. in
Supp. of Mot. to Dismiss Amended Compl. at 8.
Medi-Copy cites
to Any Occasion, LLC and Janice Hicks v. Florists’ Transworld
Delivery, Inc., for the proposition that only natural persons
engaged in consumer transactions may file a claim for unfair and
deceptive acts and practices under section 46A-6-106(a).
No.
5:10-44, 2010 WL 3584411 (N.D.W.Va. Sept. 13, 2010); Medi-Copy’s
Memo. in Supp. of Mot. to Dismiss Amended Compl. at 8, n. 2.
noted below, the language of section 46A-6-106(a) does not
support this argument.
18
As
Plaintiffs claim that defendants’ actions in
overcharging them for their medical records and failing to
inform them that they were statutorily obligated to provide the
records at a lower cost constitutes unlawful acts or practices
under 46A-6-104 of the West Virginia Consumer Credit and
Protection Act.
Amended Compl. at ¶¶ 42-48.
Because a
plaintiff alleging a violation of this provision need not be a
consumer or engaged in consumer transactions, the court need not
reach the question of whether requesting medical records for
potential litigation constitutes a consumer transaction under
the WVCCPA.
W. Va. Code § 46A-6-104 states, “[u]nfair methods of
competition and unfair or deceptive acts or practices in the
conduct of any trade or commerce are hereby declared unlawful.”
W. Va. Code § 46A-6-104.
Section 46A-6-106 provides that “. . .
any person who purchases . . . goods or services and thereby
suffers an ascertainable loss of money . . . as a result of the
use or employment by another person of a method, act or practice
prohibited or declared to be unlawful by the provisions of this
article may bring an action in [] circuit court. . . .”
Code § 46A-6-106(a) (emphasis added).
“Person,” as defined in
section 46A-1-102(31) includes “a natural person or an
19
W. Va.
individual, and an organization.”
W. Va. Code § 46A-1-102(31).
Nowhere in these provisions does it state that only consumers
may bring such claims or that they must involve consumer
transactions.6
See generally section 46A-6-106 (referring to one
with a private cause of action as “a person” and “the person”).
While a previous version of section 46A-6-106 included
references to “consumer,” section 46A-6-106(a) has always stated
that “[a]ny person” has a cause of action under this provision.
The new version of section 46A-6-106 became effective on June
12, 2015, and replaced all references to “consumer” with
“person,” making it uniform with section 46A-6-106(a).
See
Midwestern Midget Football Club Inc. v. Riddell, Inc., No. 2:1500244, 2015 WL 4727438 (S.D.W.Va. Aug. 10, 2015) (detailing the
2015 changes to section 46A-6-106 and concluding that under the
previous version of the provision that a plaintiff need only be
6
Medi-Copy’s assertion that plaintiffs must be involved in
consumer transactions in order to state a claim under section
46A-6-104 is rooted in the definition of “consumer” which is
defined for purposes of this provision as “a natural person to
whom a sale or lease is made in a consumer transaction.” W. Va.
Code § 46A-6-102(2). “Consumer transaction” is further defined
as “a sale or lease to a natural person or persons for a
personal, family, household or agricultural purpose.” Id.
Because, as discussed below, “consumer” does not appear in the
text of section 46A-6-104(a), plaintiffs need not be involved in
consumer transactions in order to bring a claim under this
provision.
20
a person and not a consumer to bring a claim).
Inasmuch as
plaintiffs, as natural persons, are plainly persons, they
satisfy the standing requirement regardless of whether they are
consumers or were engaged in consumer transactions in requesting
their medical records through Tiano O’Dell.
b. Health Care Records Statute
Medi-Copy next claims that the Health Care Records
Statute does not govern Count two of plaintiffs’ amended
complaint because persons at Tiano O’Dell, and not the
plaintiffs themselves, requested and paid for the medical
records that defendants allegedly overbilled.
Medi-Copy’s Memo.
in Supp. of Mot. to Dismiss Amended Compl. at 8-9.
According to
Medi-Copy, because Tiano O’Dell, a third party, requested the
records, plaintiffs “have failed to plead sufficient facts to
show the pricing scheme in the Health Care Records statute is
applicable.”
Id. at 9.
Plaintiffs respond that Tiano O’Dell, the law firm
representing them and Mr. O’Dell as their attorney, qualify as
“authorized agents” or “authorized representatives” under the
statute and thus were permitted to request medical records on
their behalf.
Pls.’ Resp. to Medi-Copy at 4.
21
In reply, Medi-
Copy asserts that “[t]hough the statute states that the
patient’s authorized agent or authorized representative may
enforce the statute, it does not state that a patient who has
not been injured may enforce the statute, whether directly or
through their authorized agent or representative.”
Medi-Copy’s
Reply at 3.
As earlier noted, the Health Care Records Statute,
contained in W. Va. Code §§ 16-29-1 and 16-29-2, states that
“[a]ny licensed . . . health care provider .
.
. shall, upon
the written request of a patient, his or her authorized agent or
authorized representative, within a reasonable time, furnish a
copy . . . of all or a portion of the patient’s record to the
patient, his or her authorized agent or authorized
representative. . . .”
W. Va. Code § 16-29-1(a).
Section 16-
29-1(d) states that [t]he provisions of this article may be
enforced by a patient, authorized agent or authorized
representative. . . .”
W. Va. Code § 16-29-1(d).
“Authorized agent” is not defined within the Health
Care Records Statute.
In the briefing on the motion to dismiss
the amended complaint, plaintiffs clarify that someone at Tiano
O’Dell, acting as plaintiffs’ attorney, requested the medical
records for litigation purposes. Pls.’ Resp. to Medi-Copy at 422
5.
An agent is “[s]omeone who is authorized to act for or in
place of another; a representative.”
Dictionary (10th ed. 2014).
AGENT, Black's Law
In response to the motion to
dismiss, plaintiffs provided copies of the requests for medical
records sent to Medi-Copy, which include an “Authorization to
Disclose Health Information” signed by plaintiffs, authorizing
their medical records to be provided to Tiano O’Dell.
1-10 to Pls.’ Resp. to Medi-Copy.7
Exhibits
As previously discussed, the
amended complaint adequately alleges that plaintiffs suffered an
injury in fact by requesting and paying for copies of their
medical records through their agent, the law firm Tiano O’Dell.
See Amended Compl. at ¶¶ 31, 32.
Attorneys at Tiano O’Dell, who
were authorized by plaintiffs to obtain their medical records
and who were acting on their behalf for the purposes of
instituting legal proceedings, qualify as plaintiffs’ authorized
7
Although the documents which plaintiffs cite in their response
to the motions to dismiss were not attached as exhibits in their
amended complaint, the court has already determined that it can
be inferred from the complaint that lawyers at Tiano O’Dell were
acting as agents to request medical records for plaintiffs,
clients of Tiano O’Dell. Furthermore, as plaintiffs note, under
federal health care privacy laws, a member of Tiano O’Dell would
not be permitted to access plaintiffs’ medical records without
authorizations from plaintiffs. Medi-Copy is unable to explain
how a representative of Tiano O’Dell would have access to
plaintiffs’ medical records as a “third-party requester” without
this requisite authorization.
23
agents.
Medi-Copy additionally argues that because Tiano
O’Dell requested plaintiffs’ medical records for litigation
purposes, section 16-29-1(c) precludes their claim under the
Health Care Records Statute.
Medi-Copy Memo. in Supp. of Mot.
to Dismiss Amended Compl. at 9.
Section 16-29-1(c) provides, “This article does not
apply to records subpoenaed or otherwise requested through court
process.”
W. Va. Code § 16-29-1(c).
Medi-Copy contends, “the
record requests at issue were related to court process in that
the requests are related to litigation.”
Medi-Copy Memo. in
Supp. of Mot. to Dismiss Amended Compl. at 9.
Medi-Copy
concludes that plaintiffs “lack standing because the requests
made by Tiano O’Dell were made in connection with litigation and
not for medical purposes making the statute . . . inapplicable
to their claims.”
Id.
Section 16-29-1(c) does not contain, as Medi-Copy
suggests, language that supports the conclusion that the statute
is inapplicable unless the medical records are requested for
“medical purposes.”
In this instance, plaintiffs’ medical
records clearly were not subpoenaed, requested through
24
discovery, or any other mechanism that involved the court, but
were requested by their authorized agent pursuant to section 1629-1(a).
Medi-Copy’s interpretation of this section is not
consistent with its plain language.
Moreover, Medi-Copy’s reading is contrary to other
provisions in the Health Care Records Statute.
For example,
section 16-29-2(c) provides a mechanism for indigent persons to
receive a free copy of their medical records if they “are
necessary for the purpose of supporting a claim or appeal under
any provisions of the Social Security Act.”
29-2(c).
W. Va. Code § 16-
Medi-Copy does not explain why an indigent person may
access free copies of their medical records for a social
security claim, which is not a medical purpose, but plaintiffs
are otherwise barred by section 16-29-1(c) from obtaining copies
of their medical records for a reasonable cost-based fee if they
are accessing them for litigation purposes.
The court concludes that the plain language of section
16-29-1(c) as well as a reading of the other provisions in the
Health Care Records Statute does not support Medi-Copy’s
argument.
Accordingly, the court finds that the Health Care
Records Statute applies to plaintiffs’ claims.
25
unsupported by memoranda will be denied without
prejudice pursuant to L.R. Civ. P. 7.1 (a)).
02/08/2016
Last day for Rule 26(f) meeting.
02/15/2016
Last day to file Report of Parties= Planning
Meeting. See L.R. Civ. P. 16.1.
IV.
Conclusion
02/22/2016
Scheduling conference at 4:30 p.m. at the Robert C.
Byrd United reasons, it is ORDERED that MediFor the foregoingStates Courthouse in Charleston, before
the undersigned, unless canceled. Lead counsel
directed the amended complaint be, and it hereby
Copy’s motion to dismissto appear.
02/29/2016
is, denied.
03/08/2016
Entry of scheduling order.
Last day to serve F.R. Civ. P 26(a)(1) disclosures.
The Clerk is directed to transmit copies of this order
The Clerk is requested to transmit this Order and
Notice to all counsel of record and to any unrepresented
to counsel of record and any unrepresented parties.
parties.
DATED: April 27,5, 2016
DATED: January 2017
John T. Copenhaver, Jr.
United States District Judge
26
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