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A doctor is hit with a lawsuit for malpractice and a simultaneous suit for charging too much for copying records. What can he do?
David J. Goldberg, M.D., J.D.Dr. Doc practices in a small town. His patient filed a medical malpractice lawsuit against him simultaneously with his attorney demanding a copy of Dr. Doc’s medical records. The law firm had a previous copy of the medical records because the plaintiff patient had requested them a year ago and then passed them onto the suing lawyer. Dr. Doc is annoyed that he now has to send the records a second time and discusses this with his friend, a local pharmacist. His friend says that, while he knows there are rules related to fees that offices can charge for sending medical records, his pharmacy charges whatever it wants.
Dr. Doc sends a bill to the attorney for $50/page of the 100-page medical record. His bill stipulates that the expenses are for research and preparation of files, clerical expenses, photocopying expenses, and postage and handling. The law firm pays the full $5,000, and Dr. Doc promptly sends the records. As soon as the law firm gets the medical records, it sues Dr. Doc for charging too much. Dr. Doc reports this second lawsuit to his medical malpractice carrier, who tells him he is not covered for such a lawsuit. Dr. Doc has to hire a second lawyer to defend him in this case. The second lawyer requires a $10,000 retainer and informs him that the defense of such a case may cost him in excess of $100,000. Dr. Doc is understandably upset. What is he to do?
A somewhat similar case was decided by the Supreme Court of Pennsylvania in 2014. In Landy v. Rite Aid, the Pennsylvania Court looked at the state’s Medical Record Act (MRA) as it applies to physicians and pharmacies. All states have such acts. The purpose of an MRA is to be sure that a “patient” of that patient’s representative (in this case, the attorney) has a right to his or her own medical records. The Act also addresses what medical record providers can charge for the provided copies. Most such acts specifically limit what healthcare provider’s and health care facility’s fees can be for the reproduction of medical charts or records. In general, the MRA was enacted by most legislatures because of its focus on problems concerning access to hospital and physician records.
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Of note, Medical Records Acts generally do not address pharmacies. The Pennsylvania court, in addressing pharmacies, looked at whether the patient of a doctor was also a patient versus a customer of a pharmacy. The Pennsylvania Supreme Court looked at whether the MRA was limited to healthcare facilities and, if so, whether pharmacies fell within the meaning of “healthcare facility”. The Court explained that legislative intent is best determined by examining a statute’s plain language and that statutory interpretation requires a holistic view of the statute and that effect be given to all the statute’s provisions. Words and phrases will then be considered in light of grammatical rules and commonly approved usage, and statutory words should be considered, not in isolation, but in the context of the entire statute.
Applying the rules of statutory interpretation, the Court first considered the meaning of the term “healthcare facility”. In doing so, it addressed a pharmacy’s contention that the use of the terms “healthcare provider” and “healthcare facility” in the same statute suggested that the terms were interchangeable. Ultimately, the Court ruled that the pharmacy was neither. In doing so, the Court looked at the state’s Pharmacy Act. The Pharmacy Act makes no mention of pharmacy consumers as “patients”. Rather, it limits the practice of pharmacy to preparing, compounding, dispensing, storing and distributing drugs, as well as maintaining records and providing information related to drugs. In the end, pharmacies are not considered healthcare providers under the MRA. They can charge whatever they desire for the delivery of patient records.
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Dr. Doc, on the other hand, is a provider as defined by his state’s MRA. He cannot charge $5,000 to the plaintiff’s attorney. He may hope to win the lawsuit filed by his patient, but he has no chance at winning the MRA lawsuit brought on by his patient’s attorney.