Court Holds That Personal Injury Attorney Is Not Exempt From Having To Pay Medical Record Retrieval Or Certification Fees Assessed Pursuant To Wisconsin Statutes

In Moya v. Aurora Healthcare, Inc. and HealthPort Technologies, LLC, Appeal No. 2014AP2236, the Wisconsin Court of Appeals decided a case involving the construction and interpretation of Wis. Stats. §§ 146.81-146.83 to determine whether personal injury attorneys are exempt from the $8 certification and $20 retrieval fees under the health records statute § 146.83(3f) when an attorney orders a client’s health care records with the client’s written permission.

Because “person authorized by the patient” as that term is defined by § 146.81(5) and used in § 146.83 does not include the plaintiff’s attorney, the personal injury attorney was not exempt from the retrieval and certification fees mentioned.

In the case involved in the Court’s decision, the plaintiff was involved in a motor vehicle accident and hired a personal injury attorney to handle her personal injury lawsuit. The attorney had his client sign the proper HIPAA forms authorizing the release of her medical records to his office. Pursuant to the authorization, the defendant HealthPort sent certified copies of the medical records to the personal injury attorney along with invoices listing the charges including a $20 retrieval fee and an $8 certification fee which sums were paid by the personal injury attorney. However, the personal injury attorney filed a class action complaint alleging that HealthPort violated Wisconsin law by charging him and other attorneys similarly situated the retrieval and certification fees. The personal injury lawyer argued that he was a “person authorized by the patient” and, therefore, exempt from having to pay retrieval or certification fees.

In its decision, the Court stated that 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.

In Wis. Stats. § 146.81(5), the legislature specifically defined “person authorized by the patient”. The Court of Appeals went on to specify each of the individuals who would qualify as a “person authorized by the patient”. In its list, however, the Court of Appeals noted that the list set forth pursuant to the statute did not include personal injury attorneys whose clients have signed a HIPAA form. The Court stated that if the legislature intended to include attorneys who obtain client’s medical records in civil litigation, it could have added attorneys to the list as set forth. However, the legislature did not and, as such, the Court of Appeals determined that it was required to apply the definition as written.

In its analysis, the Court went on to indicate that Wis. Stats. § 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. The Court stated that a “person authorized by the patient” was a person who has been authorized to consent to the release of a patient’s health care records in place of the patient. It stated that 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 a patient’s confidential health care records. The plain language and context of the definition of “person authorized by the patient” clearly showed, in the Court’s opinion, that the legislature’s intent was to protect the confidentiality of a patient’s health care records and restrict the power to release health care records.

The Court concluded that in its analysis of the plain language as set forth in Wis. Stats. § 146.81(5), as applied to the facts of the case, unambiguously and clearly demonstrated that the personal injury attorney was not a “person authorized by the patient”. The HIPAA form the patient signed gave her attorney the right to obtain and review her records, but it did not make her attorney a person authorized to decide and control whether health care providers should release her confidential medical records to others. As such, a personal injury attorney was not exempt from the retrieval and certification fees set forth in the Wisconsin Statutes.

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Bradley W. Matthiesen

Bradley W. Matthiesen is an insurance trial lawyer and partner with the law firm of Matthiesen, Wickert & Lehrer, S.C. He is licensed to practice in Arizona and Wisconsin. He has been an insurance defense trial attorney for the past 44 years. He also serves as a mediator throughout the State of Wisconsin and Arizona.