991 N.W.2d 502
Wis. Ct. App.2023Background
- Plaintiff Thomas Fotusky’s attorneys requested his medical records from ProHealth in Feb. and May 2017 using a signed HIPAA authorization; ProHealth charged certification/retrieval fees that the attorneys paid and Fotusky reimbursed.
- Fotusky sued under Wis. Stat. §146.83(3f)(b) (challenging certification/retrieval fees when requester is a patient or a person authorized in writing) and sought damages under §146.84 plus unjust enrichment and exemplary damages; he moved to certify a statewide class covering a six-year period prior to filing.
- The circuit court certified a broad class including patients and persons authorized by patients charged the fees in the six-year window, rejecting ProHealth’s arguments that subclasses or limits were required (e.g., excluding charges during different legal regimes).
- ProHealth appealed, arguing the class is overbroad and fails to protect due-process/mens rea issues because the legal status of attorney-requesters changed over time (Moya I, then Moya II), and some putative members cannot recover damages.
- The court of appeals reversed: it held persons who were charged fees while Moya I was binding law (Dec. 1, 2015–May 3, 2017) cannot, as a matter of law, recover under §146.84 because a binding Moya I meant providers acted in accordance with the law and therefore could not have negligently or knowingly violated the statute; those individuals must be excluded and the certification must be reconsidered on remand.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the certified class as defined was proper | Fotusky: class satisfies §803.08 numerosity, commonality, typicality, adequacy, and predominance; similar classes have been certified | ProHealth: class is overbroad—includes persons whose claims have different legal status across time (pre-/during/post-Moya I/II), unpaid-charge claimants, and those already recovered in prior suits | Court: reversal — class improperly included persons charged during Moya I period who cannot recover; remand to reanalyze certification excluding them |
| Whether individuals charged during Moya I can recover damages under §146.84 | Fotusky: fees charged to attorney-authorized requesters were unlawful per later Moya II | ProHealth: Moya I was binding at the time, so charging fees complied with then-governing law and cannot give rise to negligent/knowing violations | Held: Persons charged during Moya I cannot establish §146.84 damages as a matter of law because conduct complied with binding law at the time (citing Schuler reasoning) |
| Whether mens rea differences across time defeat commonality / predominance | Fotusky: common legal/factual question predominates (legality of fees and ProHealth’s culpability); subclasses can be created later if needed | ProHealth: ProHealth’s state of mind differed by period and requester type, undermining common issues and predominance | Held: Differences tied to the Moya I period require exclusion of those members; but remaining claims may still present common questions—remand for court to reassess certification without Moya I individuals |
| Whether unjust enrichment claim is suitable for class treatment | Fotusky: unjust enrichment flows from same allegedly unlawful charges, so class treatment is appropriate | ProHealth: unjust enrichment may be individualized and was not addressed in certification order | Held: Court instructs the circuit court to consider the unjust enrichment claim on remand; it involves same underlying charges and was effectively included in the certification issues |
Key Cases Cited
- Moya v. Aurora Healthcare, Inc., 366 Wis. 2d 541 (2016) (Ct. App.) (interpreting "person authorized by the patient" to exclude an attorney in published court of appeals decision)
- Moya v. Aurora Healthcare, Inc., 375 Wis. 2d 38 (2017) (Wis. Sup. Ct.) (supreme court reversed Moya Ct. App. and held written authorization covers attorney-requesters)
- Harwood v. Wheaton Franciscan Servs., Inc., 388 Wis. 2d 546 (2019) (Ct. App.) (affirming class certification on similar §146.83 claims)
- Hammetter v. Verisma Sys., Inc., 399 Wis. 2d 211 (2021) (Ct. App.) (affirming class certification and rejecting speculative mens rea differences as a ground to deny certification)
- State ex rel. Buswell v. Tomah Area Sch. Dist., 301 Wis. 2d 178 (2007) (Wis. Sup. Ct.) (principle that compliance with prevailing law precludes later sanctions for a new interpretation)