I Charged My Patient: I Was Sued

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“Dr Biologic” provided medical care to John Doe. Doe received this care, over the course of 12 years, for his recalcitrant psoriasis. At various times, he presented with localized psoriasis; at other times, he was hospitalized for near total body erythroderma. Unfortunately, he eventually suffered from a complication from one of the various biologic agents taken to control his chronic recalcitrant psoriasis. After recovering from near death, he sought legal counsel and was advised to sue his former dermatologist.

Doe hires a law firm and signs the appropriate releases. His attorney asks for all copies of the records. 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. Dr Biologic asks for $3 per page, submits a bill for $1299, and states that the records will only be sent once the fee is paid. The law firm sends a letter back to him stating that fees will be paid once the records are received. The dermatologist refuses to do so and receives a letter from the law firm stating that they will sue him if the records are not sent. Dr Biologic chooses not to respond. Soon thereafter, he receives a summons from the local court. The crux of the lawsuit is that Dr Biologic is being sued for excessive fees for copies of his medical records. He is shocked. What can he do?

Almost 20 years ago, 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, $10 million in actual damages, and $15 million in putative 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 & Galloway 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.¹

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 and 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 the copying of medical records. These should be strictly followed. Of note, many physicians copy such records at no charge for their patients. There is certainly no obligation to do so. However, in a state such as that of Dr Biologic’s 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.²

David J. Goldberg, MD, JD

David J. Goldberg, MD, JD, is medical director of Skin Laser and Surgery Specialists of New York and New Jersey; director of cosmetic dermatology and clinical research at Schweiger Dermatology Group in New York, New York; and clinical professor of dermatology and past director of Mohs Surgery and Laser Research at the Icahn School of Medicine at Mount Sinai in New York, New York.

References

1. Owen & Galloway, L.L.C. v. Smart Corporation, Gulf Coast Community Hospital, Inc., and Hancock Medical Center, 913 So2d 174 (MS 2005).

2. TMA. Can I charge more for copies of medical records? Tenn Med. 2010;103(8):11.