In 2011, plaintiff Kristen Nicodemus was admitted to Saint Francis Hospital for treatment of injuries sustained when she was burned. Later she engaged an attorney to represent her in a potential lawsuit. This attorney sent a fax to Saint Francis asking that it provide her copies of her medical records, and attaching a signed authorization to release. This was sent to HealthPort who provided Saint Francis with patient medical record release-of-information services pursuant to a contract.
HealthPort responded to plaintiff’s attorney’s request for medical records, sending a “California Agent Fee Information” sheet and an invoice. In a section explaining the invoice charges, the information sheet quoted section 1158, acknowledging its requirement that medical providers must allow attorneys to inspect and copy patient records on presentation of a patient’s written authorization. The information sheet, however, went on to state: “HealthPort has agreed to copy records for you, upon your hiring of HealthPort as your representative/agent for purposes of making such copies. The rates that HealthPort is charging do not fall under [Evidence Code] 1158.”
HealthPort personnel index all requests, assigning them to categories, depending on the context. Requests involving subpoenas or workers’ compensation claims, respectively, for example, are grouped in separate categories.
Evidence Code Section 1158 is designed to require medical providers to produce the medical records demanded by patients prior to litigation in a timely fashion and at a reasonable cost.
At the time of plaintiff’s appeal, section 1158 provided in pertinent part: “Whenever, prior to the filing of any action or the appearance of a defendant in an action, an attorney at law . . . presents a written authorization signed by an adult patient [or by a patient’s guardian, conservator, parent, or personal representative], . . . a licensed hospital . . . shall make all of the patient’s records . . . available for inspection and copying by the attorney at law . . . promptly upon presentation of the written authorization.”
The statute authorizes the requesting attorney to employ a professional photocopier to obtain the records on the attorney’s behalf, and the provider must produce the records within five days. (Ibid.) All “reasonable costs” incurred by a medical provider in locating, copying, or making the records available may be charged to the requesting party, subject to limits set forth in the statute, which include $0.10 per page for reproducing documents measuring up to 8.5 by 14 inches, $0.20 per page for producing documents from microfilm, and clerical costs not to exceed $16 per hour per person for locating and making records available.
HealthPort’s invoice to plaintiff’s counsel sought payment of $86.52, and provided directions for payment. The amount included a $30 “basic fee,” a $15 “retrieval fee,” $25.25 for copying 101 pages at $0.25 per page, $10.30 for shipping, and $5.97 for sales tax. Plaintiff’s attorney paid HealthPort’s invoice in full, noting on the check’s memo line, “under protest – in violation of CA EVID CODE 1158,” He later filed suit alleging causes of action for violation of section 1158 and violation of the Unfair Competition Law (UCL) (Bus. & Prof. Code, § 17200 et seq.) and moved to have the action certified as a class action. The trial court denied this motion and plaintiff appealed. The Court of Appeal reversed in the published decision of Nicodemus v Saint Francis Memorial Hospital..
Section 1158 enables the patient to seek freely advice concerning the adequacy of medical care and to create a medical history file for the patient’s information or subsequent use. It operates to prevent a medical provider from maintaining secret notes which can be obtained by the patient only through litigation and potentially protracted discovery proceedings.
“The common question here is the application of section 1158 to HealthPort’s uniform practices in response to attorney requests for medical records. The fact that each class member ultimately may be required to establish his or her records request was submitted before or in contemplation of litigation does not overwhelm the common question regarding those uniform copying practices. The trial court erred in ruling otherwise.”