Factual Background

This case concerns the Confidentiality of Medical Records Act, Md. Code Ann., Health – Gen., section 4-301 et seq. One of the provisions specifically allows health care providers to charge a preparation fee. That fee cannot exceed $22.88 for “retrieval and preparation” of medical records. This case is a class action lawsuit. It challenges the charging of a fee for a search that does not result in the production of any medical records. (Op. at 1).

The plaintiff in this case had authorized her attorney to request her medical records from a health care provider for use in a personal injury claim. That provider contracted with the defendant to handle the request. (Id.).

The defendant then reported that it had located no records. Afterward, it generated a “cancellation invoice,” charging $22.88 for “searching for her medical records.” The attorney paid the fee, and then the plaintiff reimbursed him.  (Id. at 1-2).

The circuit court granted the defendant’s motion to dismiss. The judge found that section 4-304(c) authorizes a fee for searches that do not result in the production of records. The circuit court rejected the defendant’s argument that the plaintiff lacked standing to sue because her attorney had made the record request. The plaintiff appealed. (Id. at 2-3).

The Appellate Court then affirmed. You can read a post on that decision: Medical Records Cost: Hollabaugh v. MRO

Maryland Supreme Court on No Fee for Unsuccessful Medical Records Searches

Section 4-304 allows explicitly an attorney appointed in writing to request medical records on behalf of a client. (Id. at 4). Section 4-309(f) authorizes a cause of action by someone injured by a knowing violation of the Act to recover actual damages. (Id. at 8). At the motion to dismiss stage, a reasonable inference from the plaintiff’s allegations was that she was required to reimburse her lawyer for the defendant’s fee. The court found this sufficient for standing. (Id. at 9).

The Supreme Court also found notable that the Act presupposes the existence of records. (Id. at 11). In addition, section 4-304 and its subsections contemplate the existence of records. There are several types of fees allowed, and all of the referenced actions require actual medical records. The defendant cannot perform actions (such as retrieving and preparing) with non-existent medical records (Id. at 12). The ordinary meaning of those words implies the existence of something that can be retrieved and prepared. (Id. at 13). Here, the very thing to be retrieved and prepared was absent. (Id. at 13). 

Moreover, it is significant that the Act does not provide a fee for a records search, unsuccessful or not.  The Supreme Court was unwilling to assume that the General Assembly intended to authorize a fee for an act not mentioned in the statute. Accordingly, the Supreme Court concluded that the defendant could not charge the fee for an unsuccessful search. (Id. at 14-15).

In addition, the Supreme Court stated that it would not disturb the General Assembly’s balancing of interests. The defendant’s policy argument that it should be allowed to charge for unsuccessful searches is for the legislature, not the court. (Id. at 20).

Commentary by Baltimore Medical Malpractice Lawyer Mark Kopec on No Fee for Unsuccessful Medical Record Searches

As I stated in the prior post on the Appellate Court decision, this rationale and outcome are correct. On the standing issue, the plaintiff could have made the Supreme Court’s job easier by alleging facts concerning the plaintiff’s legal obligation to reimburse her lawyer for the expense at issue. Nevertheless, the Supreme Court correctly concluded that that fact was a reasonable inference. That aligns with general personal injury legal practice, and people typically do not pay for something like this unless they are obligated to.

The Supreme Court’s application of the plain language, which does not provide for a fee for unsuccessful searches, is a testament to the fairness of the legal system. In doing so, it overturned the unfortunate reasoning to the contrary by the Appellate Court.

This case is an excellent example of the need for class-action lawsuits. The plaintiff could not challenge a $22 fee cost-effectively in a lawsuit. This case also highlights the importance of legal representation in such matters, as it can significantly impact the outcome of a case and the ability of individuals to seek justice.

Even with the option of a class action, the defendant placed the plaintiffs in a position they should not have been. If a plaintiff refused to pay the charge, the company could refuse to do business with the plaintiff in that case and future ones, effectively preventing the plaintiff from pursuing a claim. In addition, the company could report the plaintiff to the credit bureaus. Fortunately, the plaintiff’s investment in a class action case avoided these inequitable outcomes.

To the General Assembly

The next step will be lobbying in the General Assembly. Whether the General Assembly modifies the statute to allow a fee for unsuccessful records searches is beside the point. The point here is that the Supreme Court did its job by applying the statute using the plain language in a way a reasonable person would expect. This decision also sets a precedent for future medical malpractice cases, ensuring that companies do not unfairly charge patients for unsuccessful searches.

You can read more about the role of medical records in medical malpractice cases in the litigation process webpages on this website.

Mark Kopec is a top-rated Baltimore medical malpractice lawyer. Contact us at 800-604-0704 to speak directly with Attorney Kopec in a free consultation. The Kopec Law Firm is in Baltimore and helps clients throughout Maryland and Washington, D.C. Thank you for reading the Baltimore Medical Malpractice Lawyer Blog.

Factual Background of Medical Records Cost

The plaintiff brought in a class action case brought before the Circuit Court for Baltimore County. She had submitted a medical record request to the defendant. However, the defendant failed to find responsive records. The defendant then charged the plaintiff a $22.88 fee in a ‘Cancellation Invoice.’ The plaintiff argued that this fee was prohibited by Maryland’s Confidentiality of Medical Records Act (‘CMRA’) at HG 4-301 et seq. That law permits charges up to $22.88 for ‘retrieval and preparation’ of medical records. The circuit court’s disagreement and subsequent dismissal of the case raised important questions about the legal interpretation of the CMRA.

Appellate Court Analysis of Medical Records Cost

The Law

The Appellate Court summarized the relevant provisions in HG 4-304:

Subparagraph (c)(3)(i) provides that “for a copy of a medical record requested by a person in interest or any other authorized person . . . , a health care provider may charge a fee for copying and mailing not exceeding 76 cents for each page of the medical record.” Then Subparagraph (ii) adds, “In addition to the fee charged under subparagraph (i) of this paragraph, a hospital or a health care provider may charge,” in addition to a postage fee, “a preparation fee not to exceed $22.88 for medical record retrieval and preparation.” Subparagraph (iii) provides that a hospital or health care provider may also charge a fee not to exceed $22.88 for records provided in electronic form. In addition, paragraph (c)(4) states that the statute does not allow a “preparation fee” for either physical or electronic records to adjust for inflation.

(Id. at 10).

Analysis

Standing

The defendant contended that the plaintiff did not have standing to bring the class action. HG 4-304 refers to the “person in interest” who requests copies of a medical record may be required to pay a fee. The plaintiff was not the person required to pay the fee, so the defense argued that she was not aggrieved and lacked standing to seek judicial relief.

The Appellate Court saw nothing in the statute to indicate that the “person” could not make the request through an agent. All indications were that the plaintiff’s lawyer had requested the records in a representative capacity as her lawyer. So, the Appellate Court proceeded to the merits of the appeal. (Id. at 5-6).

Merits

The plaintiff argued that “retrieval” cannot be read to include the word “search.” She also contended that the CMRA is pro-consumer and intends to disallow fees not expressly provided for. (Id. at 7).

The defendant argued that it is equally likely that the legislature viewed search as part of preparation and retrieval, and it is naturally part of it. Further, the statute was both for consumer protection and to allow medical records providers to charge a reasonable fee for retrieving records, even when unsuccessful. (Id. at 8).

The Appellate Court found the medical records cost language of the statute to be ambiguous. They then turned to statutory construction rules to interpret the legislature’s intent. The court agreed with the circuit court that it would be an absurd result to require retrieval and preparation to be a completed act to allow a fee. They also stated that finding no fee would need some indication that the legislature intended that health care providers were required to conduct searches for records without demanding payment. They did not see anything that convinced them of such an intent. As a result, the Appellate Court upheld the circuit court’s dismissal, concluding the case.

Commentary by the Baltimore Medical Malpractice Lawyer

Medical records are part of every medical malpractice case. However, they can be costly to obtain. Consequently, the law governing the cost of medical record retrieval is of significant interest to plaintiffs and medical malpractice lawyers.

In Hollabaugh, the circuit court and the Appellate Court found that the plaintiff’s argument would lead to an absurd result. I don’t see it this way.

Apply the Plain Language

The law’s plain language allows for charges for medical record “retrieval and preparation.”  There were no records responsive to the plaintiff’s request, so there was no retrieval or preparation. (In fact, the defendant’s invoice said it was a “cancellation invoice.”) In this circumstance, giving the ordinary and expected meaning to the statute’s terms indicates that the charge allowed for retrieval and preparation did not apply here.

This result is not absurd; it is a result that most consumers likely would expect. If one contracts for a service of retrieval and preparation for an agreed-upon price, the consumer will not expect a charge for failure to provide the service of retrieval and preparation.

The courts objected that this result would require healthcare providers to perform searches that do not reveal records for free. However, various businesses charge only based on successfully performing the service requested. In these circumstances, the businesses absorb the costs of unsuccessful efforts. 

That could be the legislature’s intention here. Contrary to the courts’ conclusions, that would not be absurd but is a relatively common business practice. Therefore, the courts had to choose between two plausible intentions. They chose the one that contradicted the plain wording of the law.

The Legislature Can Clarify Its Intention on Medical Records Cost If Necessary

Alternatively, the courts could have refrained from guessing the legislature’s intention on medical records cost. They then could have applied the plain meaning of the words to disallow a charge for unsuccessful searches. The statute’s language and its failure to specifically address the situation of a search that revealed no records could be improved. If the legislature intended to allow a charge in such an instance, it could then make that clear by amending the law.

You can read more about the role of medical records in medical malpractice cases in the litigation process webpages on this website.

Note: The Maryland Supreme Court reversed this decision, You can read about it: Records Search Fee: Hollabaugh v. MRO 2.

Mark Kopec is a top-rated Baltimore medical malpractice lawyer. Contact us at 800-604-0704 to speak directly with Attorney Kopec in a free consultation. The Kopec Law Firm is in Baltimore and helps clients throughout Maryland and Washington, D.C. Thank you for reading the Baltimore Medical Malpractice Lawyer Blog.