NY Hospitals Can’t Shake Class Action on Copy Fees

(CN) — Patients can sue western New York hospitals for allegedly overcharging them for copies of their medical records, though their attorneys paid the initial bills, the Second Circuit ruled.

Seven hospital patients filed a federal class action in 2014, alleging they were overcharged for copies of their medical records by Rochester General Hospital, Unity Hospital of Rochester, and F.F. Thompson Hospital Inc. through their agent HealthPort Technologies LLC.

HealthPort charged the plaintiffs 75 cents per page, plus a $2 fee for electronic delivery though it sent hard copies from October 2012 to April 2014, according to the complaint.

That meant lead plaintiff Marissa Carter was charged $77 for 100 pages of medical records requested on Sept. 5, 2013, though the production cost was substantially less, she claims.

Plus, the fee included a built-in kickback from HealthPort to Rochester General Hospital, in violation of New York Public Health Law, Carter claims.

Chief U.S. District Judge Frank Geraci dismissed the complaint for lack of standing last year, finding that the plaintiffs said their attorneys not the plaintiffs had paid for the records.

But the Second Circuit vacated the lower court's ruling and remanded the case Tuesday.

"The complaint alleged expressly, and plaintiff-by-plaintiff, that the specified plaintiff 'requested' 'medical records' from the treating hospital 'through [her or his] counsel'; it alleged that each plaintiff 'paid' the demanded 'charge' for those records 'through [her or his] counsel'," Judge Amalya Kearse wrote for the three-judge panel (brackets in original). "These are detailed factual allegations that the plaintiffs were the principals, who acted through their agents in requesting and paying for the records."

The panel found "nothing implausible in the propositions that a person needs her medical records from a hospital and has retained an attorney to represent her. Indeed, those propositions were explicitly reflected in documents proffered by defendants in support of their motions."

The attorneys' letters did not imply that the client need not reimburse them, the ruling states.

"And any such idea was expressly contradicted by the factual allegations in the complaint, which were required to be accepted as true, that 'the ultimate expense' for the records was borne by 'plaintiffs and other class members,'" Kearse wrote. "The fact that the payments were to be promptly made by the attorneys does not contradict the allegation that plaintiffs themselves were or would be the ultimate payors."

One of the plaintiffs' attorneys, Kai Richter, with Nichols Kaster in Minneapolis, said they are "pleased that the Second Circuit found that our clients were injured by the overcharges, and look forward to litigating the case on the merits."

The defendants' attorneys, Rebecca Brazzano with Thompson Hine LLP in New York; Michael Cohen, Christopher Porzio, and Michelle Yuen with Nixon Peabody in Jericho, N.Y.; Aaron Saykin and Jodyann Galvin with Hodgson Russ in Buffalo, N.Y.; and Eric Ward with Ward Greenberg Heller & Reidy in Rochester, N.Y., did not respond to requests for comment emailed Tuesday.

The plaintiffs seek to represent all patients who requested and were charged for medical records from HealthPort-contracted New York health care providers on or after May 20, 2008.

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