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Webber v. Bactes Imaging Solutions, Inc.

Florida Court of Appeals, Second District

January 15, 2020

PATRICIA WEBBER, individually and on behalf of all those similarly situated, Appellant,
v.
BACTES IMAGING SOLUTIONS, INC., n/k/a SHARECARE HEALTH DATA SERVICES, LLC, Appellee.

         NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.

          Appeals pursuant to Fla. R. App. P. 9.130 from the Circuit Court for Hillsborough County; Martha J. Cook, Judge.

          Steven 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.

          Michael Fox Orr and John W. Leonard of Dawson | Orr, Jacksonville; and Louis M. Ursini, III of Adams and Reese LLP, Tampa, for Appellee.

          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.

          MORRIS, Judge.

         In 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.[1] 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, [2] 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.

         I. BACKGROUND

         The 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).

         While 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 Supp. 908a (Fla. 13th Jud. Cir. May 1, 2014); Allen v. HealthPort Techs., LLC, 22 Fla.L.Weekly Supp. 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, and irrespective of whether the request for copies be delivered to the patient's legal representative." Allen, 21 Fla.L.Weekly Supp. 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 Supp. 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.

         After 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 in Allen. 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.

         The question of whether a violation of rule 64B8-10.003(2) also violates FDUTPA was not decided in Allen.[3] 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. Thereafter, Bactes filed a motion for partial final summary judgment on the FDUTPA claim.

         At the hearing on the motions, Bactes agreed to "assume that there is a violation" of rule 64B8-10.003. But Bactes argued that as a question of law, such a violation did not violate FDUTPA. Noting that the injunction entered in Allen was based on common law, whereas in this case, the amended complaint did not contain a request for a common law injunction, the trial court in this case refused to base its decision on what transpired in Allen. Rather, the trial court correctly noted that the FDUTPA issue had not yet been decided. After analyzing the language and the purpose of rule 64B8-10.003, the trial court ultimately concluded that a violation of the rule did not constitute an unfair method of competition or an unfair, deceptive, or ...


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