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Class Action Lawsuits Sweep Across Wisconsin's Health Care Providers

There is a wave of litigation confronting Wisconsin health care providers: class action lawsuits alleging wrongful charges for medical record requests. Since May 2017, more than 40 class actions have been filed around the state. Patients have filed these cases after their personal injury attorneys requested and paid certain certification charges and retrieval fees for their health care records. The lawsuits allege that the health care providers and their vendors were not permitted to charge the statutorily-based fees to anyone whom the patient authorized in writing to obtain their health care records. The lawsuits demand the return of the allegedly wrongful charges, plus exemplary damages of between $1 and $25,000 per violation.

By filing these cases as class actions, plaintiffs' attorneys seek to include all instances where the health care provider or its release of information (ROI) vendor charged the certification charges and retrieval fees in the six years prior to filing the lawsuit. To date, targets of these lawsuits have included hospitals, physician groups, radiologists, chiropractors, physical therapists, ambulance companies, a pharmacy, and a long-term care facility, among others. Patients have brought suit in the following counties: Milwaukee, Waukesha, Dane, La Crosse, Marathon, Dunn, Barron, Portage, Wood, Washburn, Vernon, Eau Claire, Chippewa, Marathon, Ashland, Polk, Outagamie and Winnebago.

Driving the lawsuits is a Wisconsin Supreme Court decision, Moya v. Aurora Health Care, Inc., which held that an attorney authorized by his or her client in writing via a HIPAA authorization form to obtain the client's health care records is a "person authorized by the patient" and is therefore exempt from certification charges and retrieval fees under Wis. Stat. § 146.83(3f)(b)4-5.1 Notably, the Wisconsin Supreme Court decision, issued in May 2017, reversed a December 2015 published decision by the Wisconsin Court of Appeals that determined the patient's attorney was not a "person authorized by the patient" and thus was subject to the fees.2

Prior to the Moya decision, many health care providers or their ROI vendors charged patients' attorneys and other third-party requestors the $8 certification charge and/or the $20 retrieval fee. While the Supreme Court held that a patient's own personal injury attorney cannot be charged these amounts, some parties have argued that the Supreme Court left open the question of whether other third parties who present a patient's signed HIPAA release form, such as insurance companies and defense law firms, can be charged these amounts. Most recently, the Court of Appeals noted in Harwood v. Wheaton Franciscan Services, Inc. that there is nothing in the Moya decision stating that a "person authorized by the patient" is limited to a patient's attorney, as opposed to any person authorized in writing by the patient.3

To mitigate risk, many Wisconsin health care providers and their ROI vendors have stopped charging requestors presenting a patient's signed HIPAA release form the certification charges or retrieval fees contemplated under Wis. Stat. § 146.83. von Briesen & Roper's attorneys are currently defending several health care providers involved in these class action lawsuits. 

 


1 Moya v. Aurora Healthcare, Inc., 2017 WI 45, ¶ 2, 375 Wis. 2d 38, 894 N.W.2d 405.
2 Moya v. Aurora Healthcare, Inc., 2016 WI App 5, 366 Wis. 2d 541, 874 N.W.2d 336.
3 Harwood v. Wheaton Franciscan Services, Inc., 2019 WI App 53, 388 Wis. 2d 546, 933 N.W.2d 654.

©2020 von Briesen & Roper, s.cNational Law Review, Volume X, Number 50

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About this Author

Nick Castronovo, Von Briesen Roper Law Firm, Milwaukee, Corporate, Health and Litigation Law Attorney

Nick Castronovo is a member of the Litigation and Risk Management Practice Group. His practice focuses on commercial and business litigation including contract and lease disputes, construction and property damage claims, OSHA counseling and citation defense, and general civil litigation matters.

Nick helps clients understand the different strategies and potential outcomes available at the beginning of each dispute, appreciates and strongly advocates his clients’ interests at each stage of the litigation, and recognizes creative and positive...

414-287-1565
Susan Lovern, President, Von Briesen & Roper , Milwaukee, Appellate Class Actions Commercial and Business Litigation Environmental Law and Litigation Health Law Litigation and Risk Management Real Estate Litigation
President & CEO

Susan Lovern is the President and CEO of von Briesen & Roper, s.c. and chairs the firm’s Commercial and Business Litigation Section. She represents clients in complex business litigation and appeals in state and federal courts, as well as in pre-litigation contexts, including arbitrations and mediations.  Susan’s business litigation clients include hospitals, health systems, banks, and manufacturers. She regularly handles contract, lease and warranty disputes for her clients, as well as business torts, class action defense, shareholder and non-compete agreements, unfair competition and trade secrets. Susan also represents clients in environmental and real estate litigation matters. Her appellate experience includes numerous published opinions and arguing cases before the Wisconsin Supreme Court and the Seventh Circuit Court of Appeals.  In every matter, Susan’s focus is on understanding her client’s business objectives and providing strategic, cost-effective service consistent with those objectives.

Honors and Accomplishments

  • Selected for Wisconsin Super Lawyers® lists: Wisconsin’s Top 50 Lawyers (2019), Wisconsin’s Top 25 Women Lawyers (2012, 2014-2019), and Wisconsin Super Lawyer in Business Litigation (2010-2019)

  • Recognized in Best Lawyers in America® Commercial Litigation (2016-2020) and Litigation - Environmental (2013-2020)

  • Selected as Best Lawyers’ 2014 Milwaukee Litigation - Environmental “Lawyer of the Year”

  • Elected as a Fellow, American Bar Foundation

  • Selected as a Fellow, Litigation Counsel of America

  • Honored as one of 2010’s “Woman in the Law” by the Wisconsin Law Journal

  • AV Preeminent® Peer Review Rated by Martindale-Hubbell®

Professional and Civic Associations

  • Trustees of Funds and Endowments, board member (2018 – present)

  • Eastern District of Wisconsin Bar Association, board member (2013-2019); co-chaired Civil Committee (2016-2019)

  • Milwaukee Bar Association, elected board member (2010-2016)

  • Association for Women Lawyers Foundation, board member (2014-2017)

  • Association for Women Lawyers, president (2003-04), board member (1999-2005)

  • Christ Church Episcopal, Whitefish Bay, chair of Endowment Board (2019 – present), chair of Finance Committee (2013), Senior Warden (2012), vestry member (2009-2012)

  • State Bar of Wisconsin, Strategic Planning Committee (2008-09)

  • Milwaukee P.E.O. Chapter, president (2005-2007)

  • Vital Voices for Mental Health, vice chairperson (2000-2002), board member (1999-2002)

  • American Bar Association (Litigation and Appellate Sections)

  • Thomas E. Fairchild American Inns of Court (Program Committee)

  • Serjeants’ Inn

  • American Health Lawyers Association

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