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
Appeals 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.
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.
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 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.
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.
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. Thereafter,
Bactes filed a motion for partial final summary judgment on
the FDUTPA claim.
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