I charged for records and was sued'

This medical care was provided to Mr. Doe, over the course of 12 years, for his recalcitrant psoriasis. At various times he presented with simply localized psoriasis; at other times he was hospitalized for near total body erythroderma.

Complications

His attorney asks for all copies of the records from Drs. A, B and C. The total 12-year records amount to 433 pages. The Board of Medical Examiners in their jurisdiction does not stipulate an exact fee that may be charged for medical records. The regulation simply states that fees must be reasonable.

The dermatologists ask for $3/page, submit a bill for $1,299, and state that the records will only be sent once the fee is paid. The law firm sends a letter back to them stating that "fees" will be paid once the records are received. The dermatologists refuse to do so and receive a letter from the law firm that they will sue them if the records are not sent. Drs. A, B and C do not respond. Before law they receive a summons from their local court.

The crux of the lawsuit is that the dermatologists are being sued for excessive fees for copies of their medical records. They are shocked. What can they do?

Precedent

In March of 2005, the Supreme Court of Mississippi ruled on a somewhat 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 and $10 million in actual damages and $15 million in punitive damages.

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

The law firm appealed the case to the higher court in Mississippi.

The Mississippi Supreme Court affirmed the ruling of the lower court. 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.

Can it be won?

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 the copying of medical records. These should be strictly followed.

Of note, many physicians copy such records at no charge for their patients. They have no obligation to do so. However, in a state such as that of Drs. A, B and C where the state regulation only requires reasonable charges, there must be some correlation between the actual overhead of providing such records and the charged fee.

Dr. Goldberg is the director of Skin Laser & Surgery Specialists of New York and New Jersey; director of Mohs surgery and laser research, Mt. Sinai School of Medicine; and adjunct professor of law, Fordham Law School.