Patricia WEBBER, individually and on behalf of all those similarly situated, Appellant,
BACTES IMAGING SOLUTIONS, INC., n/k/a Sharecare Health Data Services, LLC, Appellee.
FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
pursuant to Fla. R. App. P. 9.130 from the Circuit Court for
Hillsborough County; Martha J. Cook, Judge.
L. Brannock, of Brannock & Humphries, Tampa; David M.
Caldevilla, of de la Parte & Gilbert, P.A., Tampa; J.
Daniel Clark, of Clark & Martino, P.A., Tampa; and Scott
R. Jeeves, Law Group, P.A., St. Petersburg, for Appellant.
Fox Orr, and John W. Leonard, of Dawson | Orr, Jacksonville;
and Louis M. Ursini III, of Adams and Reese LLP, Tampa, for
Nichole J. Segal, of Burlington & Rockenbach, P.A., West
Palm Beach; and Jeffrey M. Liggio, of Liggio Law, West Palm
Beach, for Amicus Curiae Florida Justice Association in
Support of Appellant Patricia Webber.
these consolidated class action appeals, Patricia Webber,
individually and on behalf of others similarly situated,
appeals the order denying her motion for permanent injunction
and granting final partial summary judgment in favor of
Bactes Imaging Solutions, Inc. Webber filed an amended
complaint below seeking declaratory relief, an injunction,
and damages based on a violation of the Florida Deceptive and
Unfair Trade Practices Act (FDUTPA), as well as damages for
unjust enrichment. The basis for Webber's complaint was
that Bactes routinely overcharges for copies of a
patient's medical records when the records request is
made by the patient's legal representative rather than by
the patient directly. The trial court denied Webber's
motion for a permanent injunction and granted Bactes's
motion for summary judgment as to the FDUTPA claim,
concluding that no FDUTPA violation occurred. In this
appeal, Webber challenges that finding, and
the Florida Justice Association has appeared amicus curiae,
filing a brief in support of Webber's arguments. Because
we conclude that Bactes's conduct constitutes a violation
of FDUTPA, we reverse.
undisputed facts reflect that when Bactes received
Webber's request and those of the class members for
copies of their own medical records (via the requesting
parties' lawyers), Bactes charged $1.00 for each page
after the first twenty-five pages, which is four times the
maximum charge set forth in Florida Administrative Code Rule
64B8-10.003(2) for patients who request such records. Bactes
asserted that it was authorized to charge the $1.00 rate
instead of the twenty-five-cent rate charged to patients
because the requests were being made by lawyers on behalf of
the patients and, therefore, the requests were being made by
"other entities" for which the $1.00 rate is
permissible under rule 64B8-10.003(3).
this case was pending, a case with nearly identical facts but
a different medical records company was being decided in the
same judicial circuit. See Allen v. HealthPort Techs.,
LLC, 21 Fla.L.Weekly S upp. 908a (Fla. 13th Jud. Cir.
May 1, 2014); Allen v. HealthPort Techs., LLC, 22
Fla.L.Weekly S upp. 577b(Fla. 13th Jud. Cir. Nov. 13, 2014).
In that case, the medical records company, HealthPort
Technologies, defended its overcharges arguing that under
rule 64B8-10.003, it was entitled to charge the higher rate
for "other entities," rather than the rate for
patients, when the request was being made by a lawyer asking
on behalf of his or her client (i.e., the patient). The trial
court granted partial final summary judgment in favor of the
patient, concluding that under rule 64B8-10.003(2), the
patient rate must be applied "irrespective of whether
the patient's request for copies was delivered,
initiated, or made by the patient's legal representative,
as defined by Florida Administrative Code Rule 64B8-10.004,
irrespective of whether the request for copies be delivered
to the patient's legal representative."
Allen, 21 Fla.L.Weekly S upp. 908a. Subsequently,
the trial court entered a declaratory judgment based on the
violation of rule 64B8-10.003(2) and a permanent injunction
based on common law. Allen, 22 Fla.L.Weekly S upp.
577b. Notably, although the plaintiff in Allen
asserted claims pursuant to FDUTPA, those claims were severed
from the declaratory judgment and injunction claims, and thus
the trial court did not analyze them.
the partial final summary judgment was granted in
Allen, but prior to the declaratory judgment and
injunction being entered in that case, Webber filed a motion
for partial summary judgment in this case. In it, she argued
that she was entitled to summary judgment on her claim for a
declaratory judgment because, pursuant to rule
64B8-10.003(2), Bactes was not authorized to charge $1.00 for
every page when the request for copies of medical records is
being made by a patient's legal representative, rather
than by the patient his or herself. In a nonfinal April 2015
order, the trial court in this case agreed with Webber's
argument and granted Webber's motion for partial summary
judgment on the declaratory relief claim. In doing so, the
trial court in this case expressly relied on the order
granting summary judgment inAllen. In spite of the
April 2015 order, Bactes continued to charge $1.00 per page
for copies of medical records regardless of the number of the
pages when the request was submitted by a patient's
lawyer. Bactes continues to refuse delivery of the copies
until all charges are paid in full.
question of whether a violation of rule 64B8-10.003(2) also
violates FDUTPA was not decided in
Allen. Thus after obtaining the partial final
summary judgment on her claim for declaratory relief, Webber
filed a motion for permanent injunction, arguing that the
rule violation constituted a FDUTPA violation. ...