Certifiable – A Medical Records Story

Peter Martin, Esq.

How would you feel if you were charged $45.00 for copies of two pages of medical records? How would you feel if, having charged that amount, you were subjected to a class action suit with the potential for treble damages and the award of the plaintiff’s attorney’s fees? That was the situation facing the litigants in Beauchesne v. New England Neurological Associates, P.C., and the subject of an Appeals Court decision rendered in October of 2020.

In this decision, the Appeals Court did two things. First, it discussed whether statutes limiting fees that may be charged for providing copies of medical records pertain to certified medical records. Second, it considered the proper remedies available for violations of such statutes. In doing so it followed an earlier Supreme Court decision, Darviris v. Petros, 442 Mass. 274 (2004), that drew a distinction between a medical practice’s negligent provision of medical care (to which medical malpractice law applies) and the “entrepreneurial and business aspects of providing medical services.” As to those latter aspects, legal remedies are not limited to professional malpractice statutes, but may include consumer protection statutes, such as Massachusetts General Laws chapter 93A (the Consumer Protection Statute). Under that law, successful plaintiffs may receive money damages that may be tripled in the case of unfair or deceptive acts or practices that are willful or knowing statutory violations, as well as their attorneys’ fees.

This case began with a simple request by Mr. Beauchesne’s lawyer for certified copies of his medical records and bills related to an automobile accident. New England Neurological Associates responded with a letter specifying that the records would be delivered after receipt of $45.00, the fee for retrieval and copying of medical records. The records were delivered along with a certification that they were complete and accurate, pursuant to MGL chapter 233, section 79G. That statute governs the circumstances in which medical records may be introduced as evidence in litigation; it does not address either access rights to, or costs of copying, medical records.

When Beauchesne brought the class action lawsuit on behalf of himself and other similarly situated NENA patients, he claimed that the proper fee for copies of medical records is governed by MGL chapter 111, section 70, and chapter 112, section 12CC (the Medical Records Statutes). Those statutes together impose a fee scheme involving a base fee, a per-page fee, and an additional fee covering postage and any requested explanation or summary of the records; all of these fees are subject to adjustment based on changes in a medical care services consumer price index. Under that regulatory scheme, Beauchesne claimed the proper fee for the records he sought would have been $26.81.

The trial court agreed with NENA’s argument that, because certified medical records were provided, the charge for those records was not governed by the Medical Records Statutes, but rather chapter 233. The Appeals Court was thus faced with the legal question of whether certified medical records are covered by the Medical Records Statutes. The court answered this question in the affirmative, ruling that nothing in the

Medical Records Statutes limited their applicability to uncertified medical records. The court also noted that the Medical Records Statutes govern situations in which a certification is required, as when medical records are supplied in response to a subpoena.

The practical effect of this ruling, if upheld on appeal, is that adding a certification to medical records produced under the Medical Records Statutes does not by itself remove those Statutes’ limitations on the fees that may be charged for such certified records. However, the Appeals Court decision also states that the Medical Records Statutes do permit charging an additional fee for a requested “explanation or a summary of a patient’s records.” The court found that providing a certification “falls squarely into that category.” Thus, had NENA specified in its letter to Beauchesne that the $45.00 included the cost of the requested certification in addition to the cost of retrieval and copying, pursuant to the Medical Records Statutes, it might have avoided the Appeals Court concluding the Medical Records Statutes applied to this matter – an alleged overcharge of $18.19.

The court then turned to Beauchesne’s claim he was entitled to a remedy under the Consumer Protection Statute. That statute declares unlawful unfair or deceptive acts or practices in the conduct of any trade or commerce. NENA claimed that the Medical Records Statutes provide a complete regulatory scheme including enforcement by the Department of Public Health and the Board of Registration in Medicine, and that prior case law under the Consumer Protection Statute holds that where such a separate regulatory scheme exists, enforcement under the Consumer Protection Statute is unavailable. The Appeals Court however noted that under other cases, violation of laws and regulations may form the basis for a Consumer Protection Statute claim if the “underlying conduct is unfair or deceptive” and remedies under those laws or regulations are not inconsistent with Consumer Protection Statute remedies.

Is overcharging for medical records unfair or deceptive and does that conduct occur in trade or commerce? The Appeals Court answered “yes.” It noted that overcharging is commonly considered an unfair or deceptive act or practice. And, in light of the Darviris decision, it ruled that activities involving the provision of medical records are part of the “entrepreneurial and business aspects” of medical practice. In other words, providing and charging for medical records is part of the trade or commerce of medicine, and not the professional practice of medicine. Thus, Beauchesne adequately asserted a claim for violation of the Consumer Protection Statute. (Because the case was heard by the Appeals Court on a motion to dismiss, the Appeals Court had to assume that Beauchesne’s claims were true, so the court did not conclude that Beauchesne was in fact overcharged.)

This decision reminds practitioners that engaging in the learned profession of medicine poses risks of both a professional and a business character. It does suggest a way to get paid for providing certified medical records in accordance with the Medical Records Statutes. But it also reminds us that in making strictly business decisions, such as charging for medical record copies, providers will be treated by the law like everyone else engaged in trade or commerce. +

Peter Martin, Esq. is a partner at Bowditch and Dewey.