Moya v. Aurora Healthcare, Inc.

2016 WI App 5, 874 N.W.2d 336, 366 Wis. 2d 541, 2015 Wisc. App. LEXIS 841

• Court: Court of Appeals of Wisconsin
• Decided: December 1, 2015
• Docket: No. 2014AP2236
• Status: Published

Opinions

LaROCQUE, J.

¶ 1. Aurora Healthcare, Inc. and HealthPort Technologies, LLC (collectively "Health-Port" except as needed) appeal from non-final orders denying HealthPort's motion for summary judgment and denying its motion for reconsideration.¹ This case involves the construction and interpretation of Wis. Stat. §§ 146.81-146.83 (2013-14)² to determine whether personal injury attorneys are exempt from the $8 certification and $20 retrieval fees under the health-records-fee statute, § 146.83(3f), when an attorney orders a client's health care records with the client's written permission. HealthPort claims the circuit court erred when it construed § 146.83(3f)'s "person authorized by the patient" language to include a personal injury attorney whose client signed a written HIPAA authorization giving permission to get the client's medical records. HealthPort argues that the plain language of the statute, the context of the statute, and a recent amendment to the statute support its position that "person authorized by the patient" does not include a personal injury attorney whose client has signed a written form allowing the attorney to gather the client's medical records. Because "person authorized by the patient," as that term is defined by § 146.81(5) and used in § 146.83 does not include Moya's attorney, we reverse the circuit court's orders and remand with directions to grant HealthPort's motions and dismiss Moya's complaint.³

BACKGROUND

¶ 2. In April 2011, Moya was involved in a motor vehicle accident. She hired Welcenbach Law Offices, S.C. to handle her personal injury lawsuit. Attorney Robert Welcenbach had Moya sign HIPAA forms authorizing the release of her medical records to Welcenbach Law Offices. Welcenbach sent a request for the records to Aurora, who had a contract with HealthPort to fulfill the records request. HealthPort sent certified copies of Moya's medical records to Welcenbach along with invoices listing the charges, including a $20 retrieval fee and $8 certification fee. The invoices were all paid by Welcenbach Law Offices.

¶ 3. In March 2013, Moya filed a class action complaint alleging HealthPort violated Wis. Stat. § 146.83(3f) by charging her attorney the retrieval and certification fees. She argued that her attorney was a "person authorized by the patient" and therefore exempt from having to pay retrieval or certification fees. HealthPort filed a motion to dismiss the complaint, which was denied by the circuit court.

¶ 4. After discovery, HealthPort filed a motion for summary judgment asserting that the proper interpretation of Wis. Stat. §§ 146.81-146.83 clearly shows that Moya's attorney was not a "person authorized by the patient" because that term means a person who the patient has given the power to consent to release of her health care records to others. A client's signed HIPAA authorization only gives a personal injury attorney the right to obtain and view health care records, but not the right to have health care providers release those records to others. The circuit court denied HealthPort's motion, ruling that "person authorized by the patient" had different degrees of meaning. It held that the phrase meant authority "to consent to the release of records" under § 146.81(5), but under § 146.83, the phrase meant anyone who the patient gives "the authority to inspect the patient's health care records."

¶ 5. HealthPort subsequently filed a motion for reconsideration arguing that the recent amendment to Wis. Stat. § 146.83, adding subsection (lb), demonstrated that the circuit court's earlier interpretation of the statute was incorrect. Subsection (lb) made State Public Defenders a "person authorized by the patient" when the attorney has written informed consent:

(lb) Notwithstanding s. 146.81 (5), in this section, a "person authorized by the patient" includes an attorney appointed to represent the patient under s. 977.08 if that attorney has written informed consent from the patient to view and obtain copies of the records.

Wis. Stat. § 146.83(lb). The circuit court denied the motion for reconsideration. HealthPort filed a petition to appeal from non-final orders, which we granted.

ANALYSIS

¶ 6. Our review on summary judgment decisions is de novo. See Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315-17, 401 N.W.2d 816 (1987). Here, the summary judgment involved the construction and interpretation of statutes, which presents legal issues we also review independently of the circuit court. See Mayo v. Boyd, 2014 WI App 37, ¶ 8, 353 Wis. 2d 162, 844 N.W.2d 652. The purpose of statutory interpretation is to determine the intent of the legislature. Id. To do so, we start with the plain language of the statute and examine that language "in the context in which it is used; not in isolation but as part of a whole; in relation to the language of surrounding or closely-related statutes; and reasonably, to avoid absurd or unreasonable results." State ex rel. Kalal v. Circuit Court for Dane Cty., 2004 WI 58, ¶ 46, 271 Wis. 2d 633, 681 N.W.2d 110.

¶ 7. The statutes requiring our interpretation are Wis. Stat. §§ 146.81-146.83. Wisconsin Stat. § 146.81 defines words and phrases used in §§ 146.81-146.84. Subsection (5) defines " '[p]erson authorized by the patient¹" as:

the parent, guardian, or legal custodian of a minor patient, as defined in s. 48.02 (8) and (11), the person vested with supervision of the child under s. 938.183 or 938.34 (4d), (4h), (4m), or (4n), the guardian of a patient adjudicated incompetent in this state, the personal representative, spouse, or domestic partner under ch. 770 of a deceased patient, any person authorized in writing by the patient or a health care agent designated by the patient as a principal under ch. 155 if the patient has been found to be incapacitated under s. 155.05 (2), except as limited by the power of attorney for health care instrument. If no spouse or domestic partner survives a deceased patient, "person authorized by the patient" also means an adult member of the deceased patient's immediate family, as defined in s. 632.895 (1) (d). A court may appoint a temporary guardian for a patient believed incompetent to consent to the release of records under this section as the person authorized by the patient to decide upon the release of records, if no guardian has been appointed for the patient.

¶ 8. Wisconsin Stat. § 146.82 addresses the confidentiality of health care records. Subsection (1) provides in pertinent part: "All patient health care records shall remain confidential. Patient health care records may be released only to the persons designated in this section or to other persons with the informed consent of the patient or of a person authorized by the patient." Subsection (2) lists the circumstances in which patient health care records can be accessed without informed consent — none of which apply here. See § 146.82(2).

¶ 9. Wisconsin Stat. § 146.83 addresses access to patient health care records and fees that can be charged for the records. The two pertinent subsections include (lb), which the legislature recently added to the statute. See 2013 Wis. Act 342 (April 23, 2014). Subsection (lb) provides: "Notwithstanding s. 146.81 (5), in this section, a 'person authorized by the patient' includes an attorney appointed to represent the patient under s. 977.08 if that attorney has written informed consent from the patient to view and obtain copies of the records." Subsections (3f)(a) & (b) require a health care provider to comply with proper requests and set forth the fees that can be charged for copies of medical records:

(31) (a) Except as provided in sub. (If) or s. 51.30 or 146.82 (2), if a person requests copies of a patient's health care records, provides informed consent, and pays the applicable fees under par. (b), the health care provider shall provide the person making the request copies of the requested records.

(b) Except as provided in sub. (If), a health care provider may charge no more than the total of all of the following that apply for providing the copies requested under par. (a):

1. For paper copies: $1 per page for the first 25 pages; 75 cents per page for pages 26 to 50; 50 cents per page for pages 51 to 100; and 30 cents per page for pages 101 and above.

2. For microfiche or microfilm copies, $1.50 per page.

3. For a print of an X-ray, $10 per image.

4. If the requester is not the patient or a person authorized by the patient, for certification of copies, a single $8 charge.

5. If the requester is not the patient or a person authorized by the patient, a single retrieval fee of $20 for all copies requested.

6. Actual shipping costs and any applicable taxes.

¶ 10. The issue on appeal is how to interpret "person authorized by the patient." Moya argues this phrase includes her attorney because as the "patient," she "authorized" Welcenbach to get her medical records by signing the HIPAA releases. HealthPort seeks a different interpretation by looking at the phrase within the context of the statute and because of the recent addition of Wis. Stat. § 146.83(lb).

¶ 11. We start first with the plain language of the statute. State ex rel. Kalal, 271 Wis. 2d 633, ¶ 46. Wisconsin Stat. § 146.81(5) specifically defines "person authorized by the patient." The statute defines the phrase by listing the individuals who qualify as a "person authorized by the patient":

(1) The parent, guardian, or legal custodian of a minor patient;

(2) The person vested with supervision of a child;

(3) The guardian of a patient adjudicated incompetent in this state;

(4) The personal representative, spouse, or domestic partner of a deceased patient;

(5) Any person authorized in writing by the patient or a health care agent designated by the patient as a principal if the patient is incapacitated, except as limited by the power of attorney for health care.

(6) An adult member of a deceased patient's immediate family if there is no spouse or domestic partner; and

(7) A guardian appointed by the court where a patient is "incompetent to consent to the release of records." This appointee is then "the person authorized by the patient to decide upon the release of records."

This list does not include personal injury attorneys whose clients have signed a HIPAA form. If the legislature intended to include attorneys who obtain clients' medical records in civil litigation, it certainly could have added attorneys to the list set forth in Wis. Stat. § 146.81(5). It did not. The legislature specifically defined the phrase "person authorized by the patient" and we are required to apply that definition as written. See State ex rel. Kalal, 271 Wis. 2d 633, ¶ 45.

¶ 12. Moya argues her attorney falls under (5) above because she authorized her attorney "in writing" to get her medical records. But Moya's argument removes this part of the sentence and looks at it in isolation and out of the context from the rest of the sentence and statute. These statutes govern the use, disclosure, confidentiality, and release of protected health care information. Wisconsin Stat. § 146.81(5) specifically defines those persons who may, instead of the patient, make the decision to authorize a health care provider to release confidential patient records. The legislature crafted a very specific list of individuals who fall into this group. Each individual listed by the legislature is a person who has the power derived from the patient (or the court) to make a decision about and request a health care provider release the patient's confidential records. Moya's attempt to extract the phrase "any person authorized in writing by the patient" from the context of § 146.81(5) and read it in isolation in order to give her attorney the power over the release of Moya's health care records runs contrary to the plain and contextual meaning of the language used by the legislature in crafting these statutes. See Teschendorf v. State Farm Ins. Cos., 2006 WI 89, ¶ 12, 293 Wis. 2d 123, 717 N.W.2d 258 (proper statutory interpretation requires more than taking " 'a single, isolated sentence or portion of a sentence'" — we must examine the entire statute in context; citation omitted); see also Schinner v. Schinner, 143 Wis. 2d 81, 91-94, 420 N.W.2d 381 (Ct. App. 1988) (proper statutory interpretation requires "that all statutes under consideration will be operative").

¶ 13. This analysis holds true in examining the specific definition set forth in Wis. Stat. § 146.81(5) when applying it to the fees statute itself, Wis. Stat. § 146.83(3f). The first thing § 146.81 says is that the definitions set forth in § 146.81 should be used in "ss. 146.81 to 146.84." See § 146.81. Thus, "person authorized by the patient" has to have the same meaning each time it is used throughout these statutes. The circuit court's conclusion that this phrase means what HealthPort argues it means in the definition section, but what Moya argues it means in the fees section violates basic rules of statutory construction and would result in an unreasonable and absurd interpretation. We must apply the definition of "person authorized by the patient" that the legislature specifically set forth in § 146.81(5) to § 146.83(3f) because the legislature clearly stated that this definition applies to § 146.83(3f). Accordingly, "person authorized by the patient" as used in § 146.83(3f)4. and 5. means the same as it does in § 146.81(5): a person who has been authorized to consent to the release of a patient's health care records in place of the patient. This definition does not include Moya's attorney because it does not include attorneys who only have a HIPAA release from their client. A HIPAA release allows an attorney to obtain a copy of a client's medical records, but it does not give that attorney the power to consent to the release of Moya's confidential health care records. In other words, Moya gave her attorney the authority to get copies of her health care records, but she did not give her attorney authority to act on her behalf beyond that. The plain language and context of the definition of "person authorized by the patient" clearly shows that the legislature's intent was to protect the confidentiality of a patient's health care records, see Wis. Stat. § 146.82, and restrict the power to release health care records.

¶ 14. Our interpretation is further supported by the recent addition to Wis. Stat. § 146.83 — subsection (lb). This subsection specifically added State Public Defender attorneys to the list of individuals who are a "person authorized by the patient" as long as the attorney gets written informed consent from the client. The legislature enacted this subsection with introductory language stating "Notwithstanding s. 146.81(5)." There is only one way to interpret the plain language of this subsection: Wis. Stat. § 146.81(5) does not include attorneys as a "person authorized by the patient." In other words, § 146.81(5) did not originally include attorneys who have a signed HIPAA release from their client as a person authorized by the patient. Notwithstanding the fact that attorneys with HIPAA releases do not qualify as a "person authorized by the patient," the legislature decided that State Public Defenders should be included, and therefore created § 146.83(lb) to do so — thereby exempting State Public Defenders from the certification and retrieval fees found in subsection § 146.83(31). Moya argues that the State Public Defenders already were a "person authorized by the patient," and the amendment was necessary because companies like HealthPort refused to recognize this fact. If Moya's argument were correct, the legislature would not have used the "Notwithstanding s. 146.81(5)" language. Instead, the legislature would have amended the definition in § 146.81(5) to specifically include attorneys in the definitional list of "person authorized by the patient."

¶ 15. Moya also argues that her attorney should not have to pay the certification and retrieval fees simply because they ordered her medical records instead of having her do it herself. She points out that these records were ordered on her behalf at her request and although Welcenbach paid the HealthPort invoices, ultimately she was charged for the costs of her medical records. It is not this court's job to decide whether the legislature should also exempt personal injury attorneys from paying certification and retrieval fees. It is our job to apply the plain language of the statute within the context of the statutory scheme. See La Crosse Lutheran Hosp. v. La Crosse Cty., 133 Wis. 2d 335, 338, 395 N.W.2d 612 (Ct. App. 1986) ("If a statute fails to cover a particular situation, and the omission should be cured, the remedy lies with the legislature, not the courts."). Our analysis of the plain language as specifically defined in Wis. Stat. § 146.81(5) and as applied in context to Wis. Stat. § 146.83(3f) unambiguously and clearly demonstrates that Moya's attorney is not a "person authorized by the patient." The HIPAAform Moya signed gave her attorney the right to obtain and review her records, but it does not make her attorney a person authorized to decide and control whether health care providers should release her confidential medical records to others.

¶ 16. Our review of the relevant statutes establishes that attorneys are not delineated in the list of individuals set forth in the definition of "person authorized by the patient" in Wis. Stat. § 146.81(5), the context of the statutory scheme indicates that "authorized" means having the power to consent to the release of the patient's records, and the recent amendment to Wis. Stat. § 146.83 adding subsection (lb) clearly shows attorneys do not fall under the definition of "person authorized by the patient." Accordingly, we conclude the circuit court misinterpreted the statute when it determined that Moya's signed HIPAA release made Moya's attorney a "person authorized by the patient" as that term is used in these statutes. We reverse the orders and remand with directions to grant HealthPort's motion for summary judgment.

By the Court. — Orders reversed and cause remanded with directions.

1 We granted HealthPort's petition for leave to appeal from the non-final orders in an order dated December 16, 2014.

2 All references to the Wisconsin Statutes are to the 2013-14 version unless otherwise noted.

3 HealthPort also argues: (1) the voluntary payment doctrine defeats Moya's claims; (2) Moya waived the right to exemption of the retrieval and certification fees; and (3) the circuit court applied the wrong standard on the reconsideration motion. Based on our disposition, it is not necessary for us to address the other issues HealthPort raised. See Gross v. Hoffman, 227 Wis. 296, 300, 277 N.W. 663 (1938) (only dispositive issues need be addressed); State v. Blalock, 150 Wis. 2d 688, 703, 442 N.W.2d 514 (Ct. App. 1989) (cases should be decided on the "narrowest possible ground").

1 Wisconsin Stat. § 146.81(1) contains a long list of health care providers to which these provisions apply. Section 146.81(4) defines health care records. Section 146.81(2) describes certain information which must be contained in an informed written consent.