Metropolitan News-Enterprise


Friday, October 7, 2016


Page 1


Court of Appeal Revives Class Action Over Alleged Hospital-Record Overcharges


By a MetNews Staff Writer


A woman who claims she was charged excessive amounts for copies of her hospital records may bring a class action against the hospital and its medical-records contractor, the First District Court of Appeal has ruled.

Div. One yesterday certified for publication a modified version of its Sept. 14 opinion in the case brought by Kristen Nicodemus. Justice Maria Rivera cited several errors of law in San Francisco Superior Court Judge Curtis E.A. Karnow’s decision not to certify a class made up of persons who, acting through an attorney, requested patient medical records in California prior to litigation and who allegedly were charged more than the amounts specified in Evidence Code §1158.

The statute limits charges for documents requested “prior to litigation” to 10 cents per page for documents measuring legal size or smaller, 20 cents per page for documents copied from microfilm, and $16 per hour for clerical costs.

Hired Counsel

Nicodemus alleged in her complaint that she retained an attorney to represent her in a suit resulting from injuries sustained in an explosion. She was treated at St. Francis, and her attorney requested records of her treatment.

Medical records services for the hospital were handled by HealthPort Technologies, LLC, pursuant to a contract. HealthPort, according to the complaint, told Nicodemus’s attorney in writing that its rates “do not fall under” the statute.

The company billed $86.52 for the records, including a $30 “basic fee,” a $15 “retrieval fee,” $25.25 for copying 101 pages at 25 cents per page, $10.30 for shipping, and $5.97 for sales tax. The plaintiff’s attorney paid the bill, but wrote on his check that he was doing so “under protest-in violation of CA EVID CODE 1158.”

Nicodemus sued HealthPort and Saint Francis for violation of §1158 and the Unfair Competition Law, and moved for class certification in November 2013. Her attorney presented evidence, obtained in discovery, that HealthPort had an arrangement with its clients that if a requesting attorney made a medical records request and did not specify another copy service, the medical facility would forward the request to an onsite HealthPort representative.

The representative would then obtain all requested records and transmit them in encrypted form to the company’s Georgia headquarters, where requests are indexed and entered in a database. All requests are assigned a billing code, and the billing code for “attorney personal injury” requests to California providers is “07.”

Between May 2009 and July 2013, discovery showed, more than 150,000 requests for California provider records were received, but fewer than 2,500 involved Saint Francis.

Trial Court Ruling

­­­In denying class certification, Karnow ruled that the plaintiff failed to prove that the class was ascertainable, or that common issues predominated. He reasoned that there was no way to determine which of the requests were submitted “prior to litigation” without individualized inquiry, and that this was fatal to the arguments that the class could be readily ascertained and that class-wide issues predominated over individual ones.

Rivera, however, concluded in her opinion for the Court of Appeal that the “07” billing code makes the class sufficiently ascertainable. The trial judge’s finding that there may be requests with that code that do not involve contemplated litigation “appears to be pure speculation,” the justice said, particularly given the fact that HealthPoint calls them “attorney personal injury” requests.

In any event, she said, the fact that some of those who submitted requests do not fall within the class definition does not make it impossible to ascertain the class.

Similarly, Rivera said, the common issue raised by the plaintiff—“the application of section 1158 to HealthPort’s uniform practices in response to attorney requests for medical records”—predominates over any individual issues. “The fact that each class member ultimately may be required to establish his or her records request was submitted before or in contemplation of litigation does not overwhelm the common question regarding those uniform copying practices,” she wrote.

The justice went on to dismiss Karnow’s concerns about the hospital being named as a defendant, even though the class would include persons who requested records from any and all California providers serviced by HealthPort. Rivera said this was not a problem at the class certification stage, since there is no requirement that every member of a class have a claim against every defendant for the class to be certified.

The case is Nicodemus v. Saint Francis Hospital, 16 S.O.S. 5003.


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