April 3, 2023 -  A circuit court erroneously exercised its discretion by certifying a class that included parties who were charged for medical records during a time when Wisconsin Court of Appeals case law allowed such charges, the court of appeals has held.

In Fotusky v. ProHealth Care, Inc., 2021AP1395 (March 15, 2023), the Court of Appeals District II held that the class was too broad and remanded the case to the circuit court.

Judge Shelley Grogan wrote the majority opinion, which Presiding Judge Mark Gundrum and Judge Lisa Neubauer joined. Judge Neubauer wrote a concurrence.

Charged for Medical Records

Thomas Fotusky hired Welcenbach Law Offices, S.C. (Welcenbach) to represent him in a personal injury case. Fotusky signed a HIPAA form th​at authorized Welcenbach to request copies of his medical records.

On Feb. 23, 2017, and on a second date around May 17, 2017, Welcenbach gave ProHealth Care, Inc. (ProHealth) a copy of the authorization and asked for copies of Fotusky’s medical records.

ProHealth charged Welcenbach $33.86 and $33.28, respectively for the copies of the records, including certification and retrieval fees. Welcenbach paid the charges, and Fotusky reimbursed Welcenbach for the charges.

Class Action Lawsuit

On Jan. 30, 2018, Fotusky filed a class action lawsuit in Milwaukee County Circuit Court, alleging that by charging Welcenbach for copies of his medical records, ProHealth had violated Wis. Stat. section 146.83.

Section 146.83 allows a record holder to charge a certification and retrieval fee only when the requester is not the patient or a person authorized by the patient.

After the case was transferred to Waukesha County Circuit Court on ProHealth’s motion, Fotusky moved to seek class certification.

ProHealth argued that the proposed class was overly broad.

On July 30, 2021, the circuit court entered a written order certifying the class. ProHealth filed an interlocutory appeal under section 803.08(11)(b), arguing that the circuit court made an erroneous exercise of discretion in certifying the class.

Shifting Case Law

On appeal, ProHealth argued that the circuit court had abused its discretion by certifying the class without considering that its mens rea had changed based on developments in Wisconsin Court of Appeals and Supreme Court case law interpreting section 146.83.

Writing for a three-judge panel, Judge Shelley Grogan explained that the case law interpreting section 146.83 had changed during the period in which the events at issue in Fotusky’s lawsuit had occurred.

Grogan pointed out that in Moya v. Aurora Healthcare, Inc., 2016 WI App 5, 366 Wis. 2D 541, 874 N.W.2d 336 (2015), rev’d 2017 WI 45, 375 Wis. 2d 38, 894, N.W.2d 405 (Moya I), the court of appeals held that an attorney who was charged certification and retrieval fees for copies of a client’s medical record was not “a person authorized by the patient” under section 146.83, even if the client had authorized the attorney to obtain the records.

The supreme court reversed the court of appeals, Judge Grogan noted, and held that an attorney authorized by a client to obtain the client’s medical records was “a person authorized by the patient” under section 146.83. Moya v. Aurora Healthcare, Inc., 2017 WI 45, 375 Wis. 2d. 38, 894 N.W.2d 405 (Moya II).

Then, Grogan explained, the court of appeals held (in an unpublished opinion) that a record holder could not commit a negligent, willful, or knowing violation of section 146.83 in the period that began with the publishing of the Moya I decision and ending with the publishing of the Moya II decision. Schuler v. Schubbe Family Chiropratic, Ltd., No. 2020AP1753 slip op. (WI App Dec. 22, 2021).

“We explained that despite Schuler’s argument to the contrary, Moya I was binding law during the relevant time period because ‘pursuant to Wis. Stat. section 752.41(2), “[o]fficially published opinions of the court of appeals shall have statewide precedential effect,’” Judge Grogan wrote.

Overbroad Class?

ProHealth argued that the class certified by the circuit court included members whose attorneys were charged certification or retrieval fees:

• before Moya I was handed down;

• after Moya I was handed down but before Moya II was handed down; and

• after Moya II was handed down.

As a result, ProHealth argued, the class was overbroad.

Grogan concluded that the circuit court had erroneously exercised its discretion by certifying the class because the class included members who were charged certification and retrieval fees during the period when Moya I was good law.

Class Doesn’t Meet Requirements

The inclusion of those class members, Grogan reasoned, meant that Fotusky had failed to meet the requirements of section 803.08(1) which specifies that a circuit court may only certify a class if it finds that each of the following is met:

• there are so many class members that joinder would be impracticable;

• the class shares questions of law or fact;

• the claims or defenses of the representative parties are typical of the claims or defenses of the class;

• the representative parties will fairly and adequately protect the interests of the class.

Judge Grogan pointed out that court of appeals’ holding did not mean that class certification was inappropriate for Fotusky’s lawsuit.

“What it does mean, however, is that it is necessary to remand this matter to the circuit court to re-analyze, with the Moya I individuals identified herein excluded from the circuit court’s analysis, whether Fotusky has established class certification is appropriate under Wis. Stat. section 803.08(1) and (2),” Grogan wrote.

Concurrence: No Need to Redo Certification

In her concurrence, Judge Lisa Neubauer argued that majority erred by instructing the circuit court to undertake a new class certification analysis.

Instead, Neubauer, suggested, the circuit court could simply amend its certification order to exclude the Moya I individuals.

“At most, the circuit court’s inclusion of the Moya I individuals could arguable affect only one of the pre-requisites for class certification – numerosity,” Judge Neubauer wrote.