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Court of Appeal:
Company Not Bound by Statutory Ceiling on Photocopying Charges by Medical Providers
By a MetNews Staff Writer
Div. One of the Fourth District Court of Appeal has held that Evidence Code §1158, which sets limits on what a healthcare provider may charge attorneys for copies of their clients’ medical records, does not affect the rates that private companies may set for making and supplying such copies.
That’s so, it determined, even where those companies act as agents of the providers in reviewing requests, identifying responsive records, and ensuring compliance with regulatory rules. What matters, Presiding Justice Judith McConnell said in an opinion filed Tuesday, is that in providing photocopies to attorneys in connection with anticipated or existing litigation, defendant BACTES Imaging Solutions, LLC is acting as the agent of the attorneys.
In light of that, she said, “the trial court correctly found that BACTES did not violate section 1158.”
The decision comes in a class action on behalf of 9,691 attorneys who, since Sept. 11, 2010, received records from BACTES in response to requests to health care providers and were charged amounts in excess of what is specified in the statute, with 10 cents per page being the maximum chargeable for copies of standard size pages. San Diego personal injury lawyer Spencer S. Busby, who instituted the lawsuit, was named by San Diego Superior Court Judge Kenneth J. Medel as class representative.
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SPENCER BUSBY Attorney
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2006 Opinion
Busby maintained that Medel’s judgment on favor of BACTES contravenes Div. One’s March 29, 2006 decision in Thornburg v. Superior Court. Then-Justice Patricia D. Benke, now retired, wrote the opinion.
Div. One granted a petition for a writ of mandate in that case, directing the San Diego Superior Court to vacate an order sustaining demurrers, without leave to amend, to causes of action against BACTES for making charges in excess of those allowed by §1158. Benke wrote:
“It is difficult to believe that having expressly placed the cost limitations in the statute the Legislature intended that they could either be avoided by [a hospital] having another entity respond to the section 1158 request or only enforced by way of the circuitous and burdensome remedy of recovering the cost differential from an expressly covered health care provider.
“….If the Legislature really intended that health care providers could avoid the cost limitations set forth in the fifth paragraph of the statute by simply retaining a copy service, we doubt the Legislature would have taken the trouble to impose those limitations in the first place.”
Benke said that under the agreement between BACTES and the hospital, “whenever a request for records is made the hospital retrieves the records and makes them available exclusively to Bactes, who is then responsible for making copies, delivering them to the requesting party and billing the requesting party.” That meant, she declared, that the plaintiff “can easily allege Bactes has assumed the duty to meet the hospital’s obligations under section 1158.”
Erroneous Assumption
McConnell, who signed that opinion, said Tuesday that Thornburg was founded on the incorrect assumption, based on the pleadings in that action, that a hospital is obliged to provide copies of records to patients or their attorneys. Pointing out what the court had not appreciated in 2006, she said:
“[A]s BACTES correctly notes, and as Busby concedes, section 1158 does not require a health care provider to photocopy and produce patient records to a requesting attorney. Rather, it states that a health care provider, upon presentation of an appropriate section 1158 request, must ‘promptly make all of the patient’s records under the medical provider’s custody or control available for inspection and copying by the attorney at law or his or her representative’….Thus, a health care provider may satisfy section 1158 by making patient records available to a requesting attorney, without necessarily generating photocopies of the records and providing the photocopies to the attorney.”
She noted that after BACTES locates records, it advises the requesting attorney of options in proceeding, including coming to look at the records, sending someone to copy them, or securing services of BACTES.
The jurist explained that because “contracts between BACTES and the health care providers did not envisage that BACTES would photocopy and transmit patient records to requesting attorneys,” such acts are outside the agency relationship between that company and the providers, and are within the relationship of the company and the attorneys, should they engage the offered services.
Joining in McConnell’s opinion were Justice Judith L. Haller, who also signed Benke’s opinion in Thornburg, and Justice Truc T. Do who, when that case was decided, was a Los Angeles County deputy district attorney.
The case is Busby v. BACTES Imaging Solutions, LLC, 2022 S.O.S. 211.
Copyright 2022, Metropolitan News Company