Brandon Graham v. CIOX Health, LLCBrandon Graham v. CIOX Health, LLC
Lynn Henderson; Espire Concepcion; Tyrone Green-Smith; Antonio Jones
Movants - Appellants
Appeals from United States District Court for the Eastern District of Missouri - St. Louis
Submitted: September 23, 2019
Filed: March 12, 2020
Before KELLY, MELLOY, and STRAS, Circuit Judges.
The issue in this case is whether a Missouri statute permits health care providers to charge patients who request their mediсal records a “search” fee when there are no responsive medical records to be found. The district court1 decided that the answer is yes. We agree and affirm the district court‘s judgment.
I. Background
Brandon Graham‘s attorney sent a written request to St. Mary‘s Hospital for Graham‘s health care records from July 10, 2017, to October 31, 2017. CIOX Health, LLC, which fulfills medicаl-records requests for St. Mary‘s Hospital, searched for Graham‘s health care records from the dates requested, found none, and sent Graham‘s attorney a letter stating: “We regret to inform you that we were unable to process your request as the patient did not receive services on the service date(s) requested. No dаtes of treatment 7/10/17 - 10/25-17 at St. Mary‘s Hospital - St. Louis.” CIOX billed Graham‘s attorney a “Basic Fee” of $24.85, a “Retrieval Fee” of
Graham subsequently filed this proposed class action lawsuit alleging that CIOX‘s practice of charging a “Basic Fee” for unsuccessful records searches violates
Health care providers may condition the furnishing of the patient‘s health care records . . . upon payment of a fee for:
(1)(a) Search and retrieval, in an amount not more than twenty-four dollars and eighty-five cents plus copying in the amount of fifty-seven cents per page for the cost of supplies and labor plus, if the health care provider has contracted for off-site records storage and management, any additional labor costs of outside storage retrieval, not to exceed twenty-three dollars and twenty-six cents, as adjusted annually pursuant to subsection 5 of this section; or
(b) The records shall be furnished electronically upon payment of the search, retrieval, and copying fees set under this section at the time of the request or one hundred eight dollars and eighty-eight cents total, whichever is less, if [certain conditions are met] . . . .
CIOX filed a motion to dismiss the lawsuit. It argued that the statutory language permitting health care providers to “condition the furnishing of the patient‘s health care records . . . upon a payment of a fee for . . . [s]earch and retrieval” authorized it to charge a “Basic Fee” for searching for a patient‘s health care records—even when the search was unsuccessful. The district court agreed, concluding that “[t]he plain language of the statute permits the charge of this fee.”
Graham appeals. He argues that CIOX was not permitted to charge a basic fee for searching for his health care records because (1) CIOX did not “furnish” any “health care records” and (2) the statute only authorizes health care providers to charge a fee for “search and retrieval,” not a standalone fee for a “search.”
II. Standard of Review
“We review de novo the district court‘s grant of a motion to dismiss.” Halbrook v. Mallinckrodt, LLC, 888 F.3d 971, 975 (8th Cir. 2018). Where, as here, we are called upon to interpret state law, “our role is to follow the law as decided by that state‘s highest court. Absent clear direction from that court, we must conduct our analysis as a predictive exercise, interpreting state law in the manner we believe the state‘s highest court would rule.” Id. (cleaned up).
III. Analysis
The statute at issue permits health care providers to “condition the furnishing of the patient‘s health care records” upon the payment of certain fees. See
CIOX sent Graham‘s attorney a letter stating that Graham “did not receive services on the service date(s) requested. No dates of treatment 7/10/17 - 10/25-17 at St. Mary‘s Hospital - St. Louis.” This letter is a “record” within the ordinary meaning of that term because it “recalls or relates
Health care providers “may condition” the furnishing of health care records “upon payment of a fee for . . . [s]earch and retrieval . . . .”
As a preliminary matter, Graham‘s framing of the issue as whether “and” bears a conjunctive or disjunctive meaning in the phrase “search and retrieval” is misplaced. We agree that “and” should be given “its ordinary plain meaning as a conjunctive.” Stires v. Dir. of Revenue, 477 S.W.3d 611, 615 (Mo. banc 2016). But that does not, by itself, resolve this issue. Even if “and” is given a conjunctive meaning, we must still decide whether the statute requires CIOX to conduct both a “searсh and retrieval” before it may charge a fee, as Graham argues, or whether the statute authorizes a fee for both “search and retrieval,” as CIOX argues.
We think CIOX has the better position. The list in
The plain language of the statute does not require this unusual result. The next subsection separately lists “search, retrieval, and copying fees.”
Accordingly, we affirm the district court‘s dismissal of this action. The movants’
STRAS, Circuit Judge, dissenting.
This case requires us to answer two questions. The first is whether a prior version of Missouri‘s mediсal-records statute authorizes a single fee for “[s]earch and retrieval” or one fee for a “[s]earch” and a separate one for “retrieval.” If a single fee covers both actions, then the second question is whether CIOX may charge a customer when it searches but does not retrieve anything. I respectfully dissent beсause, in my view, the statute sets a single fee that requires the completion of both actions.
I.
Under Missouri law, the “primary rule of statutory interpretation is to give effect to legislative intent as reflected in the plain language of the statute at issue.” Parktown Imps., Inc. v. Audi of Am., Inc., 278 S.W.3d 670, 672 (Mo. banc 2009). This includes giving words and phrases their common and ordinary meaning, Abrams v. Ohio Pac. Express, 819 S.W.2d 338, 340 (Mo. banc 1991); interpreting statutes, including related provisions, as a whole, Gott v. Dir. of Revenue, 5 S.W.3d 155, 159-60 (Mo. banc 1999); and applying the rules of grammar when they are helpful, see Caplinger v. Rahman, 529 S.W.3d 326, 332 (Mo. Ct. App. 2017).
A.
Applying these principles, the statute authorizes only a single fee for “[s]earch and retrieval,” not separate fees for each of these acts. As relevant here, subsection 2 states:
Health care providers may condition the furnishing of the patient‘s health care records to the patient, the patient‘s authorized representative or any other person or entity authorized by law to obtain or reproduce such records upon payment of a fee for:
(1)(a) Search and retrieval, in an amount not more than twenty-four dollars and eighty-five cents plus copying in the amount of fifty-seven cents per page for the cost of supplies and labor plus, if the health care provider has contracted for off-site records storage and management, any additional labor costs of outside storage retrieval, not to exceed twenty-three dollars and twenty-six cents, as adjusted annually pursuant to subsection 5 of this section; . . .
(2) Postage, to include packaging and delivery cost; and
(3) Notary fee, not to exceed two dollars, if requested.
If this sounds like a list of three fees, it is. Lists with four nouns and two conjunctions cannot contain four separate items.4
B.
If the statute creаtes a single search-and-retrieval fee, then the focus shifts to whether a health-care provider must complete both actions before it can charge the fee. In the statute, the word “and” separates the two nouns, “search” and “retrieval.” In Missouri, there is a strong presumption that “and” is conjunctive, not disjunctive, meaning that it is rеad as an “and,” not as an “or.” See Stires v. Dir. of Revenue, 477 S.W.3d 611, 615 (Mo. banc 2016). This presumption “strong[ly]” suggests that both acts—search and retrieval—must be completed before CIOX can charge the fee. Id. (citation omitted).
Indeed, the Missouri Supreme Court has considered a statute like this one before. In Finnegan v. Old Republic Title Co. of St. Louis, the statute authorized notaries to charge a fee of two dollars “for notarizatiоn of each signature and the proper recording thereof in the journal of notarial acts.” 246 S.W.3d 928, 929 (Mo. banc. 2008) (quoting
I would reach the same conclusion here. To use Finnegan‘s words, retrieval of a medical record is “an additional requirement to a [$24.85] charge under the statute.” Id. CIOX did not retrieve any records, so it was not entitled to payment.
II.
The court disagrees and interprets the statute to allow CIOX to charge the fee, regardless of whether it retrieves anything. It provides two reasons, but neither is persuasive.
The court begins with policy. It asks why the Missouri General Assembly would prohibit health-care providers from charging a fee when they have taken the time to search for records, but by “happenstance . . . there are [no] pre-existing records to be found.”6 Ante at 6. It says that such a decision would be “unusual,” but even if
But the court‘s logic falls short on its own terms too. Viewed from the perspective of consumers, this decision is not unusual at all. As a consumer-protection statute, one of its purposes seems to be to protect patients from overcharges. So if a patient requests something, but receives nothing, then it is not odd for the patient to pay nothing. Although this scheme may be unfair to CIOX, it is the result of how the Missouri General Assembly decided to balance the
interests of patients and health-care providers in the statute. See Goerlitz v. City of Maryville, 333 S.W.3d 450, 456 (Mo. banc 2011) (discussing the “time-honоred principle” that “policy decisions” are left to the legislature). It is not our place to second-guess its judgment. In re Brockmire, 424 S.W.3d 445, 450 (Mo. banc 2014).
The court ends its analysis by relying on subparagraph (1)(b)‘s reference to “search, retrieval, and copying fees,” but this phrase provides no help either.7 The court believes it provides “a strong textual indication that . . . ‘search’ fees and ‘retrieval’ fees [are] distinct.” Ante at 6. But this reads too much into a simple cross-reference to the fees found elsewhere “under this section“: the “[s]earch and retrieval” fee in subparagraph (1)(a), which includes compensation for copying; and a separate fee, contained in the next subseсtion, for the “reasonable cost of all duplications of health care record material or information which cannot routinely be copied or duplicated on a standard commercial photocopy machine.”