Cost of Copies Prompts a Lawsuit

Dermatology Times, Dermatology Times, April 2022 (Vol. 43. No. 4), Volume 43, Issue 4
Pages: 13

In this month's Legal Eagle, David J. Goldberg, MD, JD, dives into a case of amount for fees charged for medical records.

Over the course of 12 years, Dr A, along with his associates Drs B and C, provided medical care to John Doe for recalcitrant psoriasis. At various times, Doe presented with localized psoriasis; other times, he was hospitalized for near total-body erythroderma.

Doe eventually experienced a complication from one of the biologic agents he took to control his chronic recalcitrant psoriasis. After recovering from near death, he sought legal counsel and was advised to sue his former dermatologists.

He hired a law firm and signed the appropriate releases, and his attorney asked for copies of all the records from Drs A, B, and C. The compilation of 12 years’ worth of records totaled 433 pages.

The Board of Medical Examiners in the doctors’ jurisdiction does not stipulate an exact amount for fees charged for medical records. The regulation simply states that fees must be reasonable. The dermatologists ask for $3 per page, submit a bill for $1299, and state that the records will be sent once the fee is paid.

The law firm responds with a letter stating that fees will be paid once the records are received. The dermatologists refuse to send the copies and receive a letter back that says the law firm will sue them if the records are not sent. Drs A, B, and C do not respond. Before long, they receive a summons from their local court. The crux of the case is that the dermatologists are being sued for excessive fees for copies of their medical records. They are shocked. What can they do?

Almost 20 years ago, the Supreme Court of Mississippi ruled on a similar case. Owen & Galloway, LLC, a law firm, filed a lawsuit against defendants Smart Corporation, a medical records company; Gulf Coast Community Hospital, Inc; and Hancock Medical Center, alleging, among other issues, that excessive fees were being charged to the firm for the copying and submission of medical records, in violation of Mississippi’s antitrust laws. The firm sought injunctive relief to immediately receive the medical records, attorney’s fees, $10 million in actual damages, and $15 million in punitive damages.

The initial trial court initially granted summary judgment to the defendants, in essence throwing out the case. The court noted that the firm lacked standing because as a matter of law, Owen & Galloway had no independent right to purchase records of its clients from doctors or hospitals.

The law firm appealed the case, and the Mississippi Supreme Court affirmed the lower court’s ruling. The high court agreed with the trial court that the firm’s only right to purchase copies of medical records was in its capacity as an agent for its clients. Thus, the court found that the real parties of interest were the clients, not the law firm. The firm itself lacked the right to object to the pricing structure of the medical records.

What the court did not answer was whether the clients would win such a lawsuit. Many state boards of medical examiners provide a fee structure for copying medical records, which should be followed strictly. Of note, many physicians copy records for patients at no charge, although they have no obligation to do so. However, in a state such as that of Drs A, B, and C, where the regulation requires only reasonable charges, there must be a correlation between the actual overhead costs and the charged fee.

The situation becomes more complicated with today’s electronic medical records (EMRs). Many boards of medical examiners ask for “written” records. In general, printed EMRs will be accepted. However, it is important that these records were electronically closed out at the time the patient was seen. In this era of digital analysis, it is not hard to determine if EMRs were altered at a later date.