White v. Henry Ford Macomb Hosp. Corp.

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QUENTIN WHITE, Plaintiff-Appellant, v. HENRY FORD MACOMB HOSPITAL CORPORATION and MRO CORPORATION, Defendants-Appellees.

No. 360302

Court of Appeals of Michigan

April 20, 2023

Macomb Circuit Court LC No. 2021-001284-PD

Before: GARRETT, P.J., and K. F. KELLY, and HOOD, JJ.

HOOD J.

Plaintiff Quentin White (White), appeals as of right the order of the trial court granting summary disposition in favor of defendant Henry Ford Macomb Hospital Corporation (Henry Ford). We affirm in part, reverse in part, and remand for further proceedings.

I. BACKGROUND

This case started with a medical-record request that White sent to Henry Ford, asking Henry Ford to send medical records to his attorneys. This case is about the proper fees and timing associated with Henry Ford's and defendant MRO Corporation's (MRO)^[1] response to that request.

This case involves several provisions under the Michigan Medical Records Access Act (the MRAA), MCL 333.26261 et seq., the Health Insurance Portability and Accountability Act (HIPAA), 42 USC 1320d et seq. and the Health Information Technology for Economic and Clinical Health Act (the HITECH Act), 42 USC 17901 et seq. It also involves regulations and guidance related to HIPAA and the HITECH Act. Most notably, the 2013 regulations from the United States Department of Health and Human Services (HHS), referred to as the 2013 Omnibus Rule, as well as a document entitled, "Individuals' Right under HIPAA to Access to Health Information 45 CFR 164.524," also referred to as the 2016 Guidance. We provide an overview of the statutory and regulatory framework in Section III below.

In late December 2020, White was injured in a motor vehicle accident. After the accident, he received medical treatment at Henry Ford. White wanted to file a claim against the at-fault driver, so he retained an attorney. And, as he indicated in his records request, to "properly pursue his personal injury claim, [he] needed his medical record from Henry Ford." So, on February 1, 2021, White signed a record request, labeled "HITECH RECORD REQUEST," asking Henry Ford to send his medical record to his attorney, Brent Sitto. The request explicitly asked that Henry Ford provide the records "in electronic format only using Adobe Acrobat pdf format."

MRO is a medical records provider that contracts with healthcare suppliers, like Henry Ford, to maintain, retrieve, and produce individuals' protected health information. White sent his record request to Henry Ford on February 2, 2021. Some time between February 2, 2021, and February 3, 2021, Henry Ford forwarded the request to MRO. On February 3, 2021, MRO generated two letters related to White's record request. The first letter, to Sitto, indicated that MRO was processing the request on Henry Ford's behalf. At the bottom of the letter, MRO, under a heading entitled, "HITECH Rate Dispute," referenced the January 2020 decision of the United States District Court for the District of Columbia in Ciox Health, LLC v Azar, 435 F.Supp.3d 30 (DDC, 2020). According to MRO's summary, the Ciox decision vacated the portion of HHS's 2016 Guidance that "allow[ed] patients to direct medical records to 3rd parties such as your organization, for the same discounted rate allowed to [the] patient ...."

MRO addressed the second letter, which confirmed receipt of the record request, to Sitto. It indicated that Henry Ford was "in the process of searching for and retrieving a copy of the requested records" and that, if there were no issues with the request, MRO would send Sitto a "prepayment invoice." The letter also explained that MRO would send the records to Sitto "upon receipt of your payment." The invoice, however, was also generated on February 3, 2021, the same day as MRO's two letters to Sitto. At the top of the invoice it states: "PREPAYMENT REQUIRED[.]" The invoice indicated that there were 26 pages of records. The balance due under the invoice was $54.56, which included a $25.38 search-and-retrieval fee, $25.40 for "Tier 1" pages printed and $3.78 for "Tier 2" pages printed.

From February 2, 2021 until March 10 2021, neither White nor his attorneys responded to the letters. On March 10, 2021, Sitto sent a letter to MRO addressing its letters regarding White's record request. Sitto's letter noted that White's HITECH record request "was received by your office on 2-2-2021." Sitto indicated that, on March 2, 2021, he or his law firm received MRO's notice about the record request. Sitto quoted language from federal regulations he claimed were applicable, including 45 CFR 164.524(b) and (c)(3)(i). Sitto asserted that MRO had to provide the records within 30 days of February 2, 2021, i.e., by March 4, 2021. Sitto indicated it had been over 30 days and, as a result, MRO was "now subject to penalties for violation of federal law." In the same letter, Sitto rejected MRO's reliance on Ciox and asserted that MRO could only charge $6.50 under the HITECH Act. He asked MRO to forward the records and "an invoice for $6.50 maximum."

In mid-March 2021, MRO faxed a letter regarding White's record request to Sitto. MRO reiterated that the provisions Sitto relied on to argue for the $6.50 fee no longer applied. MRO indicated that White and Sitto were "invoiced correctly under HIPAA, HITECH and applicable state law" and that the fee limitations from the HITECH Act only applied to requests from individuals, not third parties, including law firms or situations where "the patient's medical records are being requested to be sent to a third party." The letter also reiterated that MRO would provide the requested copies of records "[u]pon payment of the balance due on the invoice."

Less than a month later, White sued defendants, raising four claims: (1) unlawful detention, and recover possession, of medical records under MCL 600.2920; (2) claim and delivery (replevin) under MCR 3.105; (3) common-law conversion; and (4) declaratory relief, asking the court to determine (a) the applicability of the HITECH Act, (b) the amount defendants could properly charge White, and (c) any other determination necessary to adjudicate the case. The essence of White's claims was that defendants improperly withheld his medical records and he sought to "recover possession" of those records. He alleged that defendants' failure to provide his records impeded his "ability to expeditiously prosecute his injury claims ...." White amended his complaint in late May 2021, adding a fifth claim: violation of the Michigan Consumer Protection Act (MCPA), MCL 445.901 et seq. Under this new claim, White alleged that defendants charged him a fee "grossly in excess of the price at which similar property or services are sold."

In mid-June 2021, Henry Ford's attorney e-mailed White's records to Sitto in PDF format. According to MRO on appeal, this was done "at no-charge" and "to resolve the issue and avoid" litigation costs.

In mid-August 2021, MRO moved for summary disposition of White's claims under MCR 2.116(C)(8) and (10). MRO argued that it was not limited to charging a maximum of $6.50 for the requested records, because, after Ciox, that fee limitation did not apply. It also argued that its invoice was proper under the MRAA, which also allowed it to withhold White's records pending payment. MRO further argued that because White requested his records for litigation purposes, his MCPA claim failed as a matter of law under Slobin v Henry Ford Health Care, 469 Mich. 211; 666 N.W.2d 632 (2003). Henry Ford concurred in MRO's motion.

White responded, arguing that MRO failed to comply with federal law when it did not act on his record request within 30 days. He also argued that MRO ignored his request for electronic records and improperly charged the state law rate for paper copies. White further argued that MRO's reliance on Ciox was misplaced, and that the prepayment requirement under MCL 333.26269(2) conflicted with the HITECH Act and was, therefore, federally preempted. And White asserted that because he requested his record "for personal purposes for his personal injury claim," this case was distinguishable from Slobin and, thus, he had a valid MCPA claim.

After a hearing, the trial court issued an opinion and entered an order granting summary disposition to defendants. The court first found that because an attorney is a third party under the applicable statutory scheme, MRO could properly charge them above the Patient Rate. It also noted that the Ciox court vacated the 2013 Omnibus Rule and 2016 Guidance. It also found that White had failed to establish that Henry Ford kept its records in a form other than paper, as required for MCL 333.26269(1)(c) to apply, despite his argument that MRO's invoice was improper because he asked for electronic records. The trial court further found that MRO's fees were reasonable, and that the HITECH Act and related regulations did not prohibit withholding records until prepayment of a fee, as allowed under the MRAA. And the court found that Slobin precluded White's MCPA claim because he had requested the records for litigation purposes.

White moved for reconsideration. He argued that the trial court prematurely granted summary disposition before the parties completed discovery. His overarching argument was that, as it related to Henry Ford, there was a factual dispute regarding whether its medical records were kept in a form other than paper, such that MCL 333.26269(1)(c) applied. He asserted that discovery on that issue likely would resolve the dispute, noting that had the trial court not granted MRO's dispositive motions, Henry Ford or MRO could comply with discovery orders related to producing various documents and representatives. At the hearing on the motion, the trial court acknowledged that it ...