Hector Ortiz brings this proposed class action against CIOX Health LLC ("CIOX") and the New York and Presbyterian Hospital ("NYPH"). He seeks damages and injunctive relief arising out of defendants' alleged violations of
Background
The facts as alleged in the First Amended Complaint ("FAC") have been described in an Opinion of February 22, 2018, which is incorporated by reference. See Ortiz v. CIOX Health LLC, No. 17cv4039(DLC),
The February 2018 Opinion dismissed several counts of the FAC but allowed a single claim, for a violation of § 18(2)(e), to go forward. Id. at *6. On May 14, 2018, Ortiz's counsel informed the Court that Ortiz had died. An Order of October 16 granted plaintiff's application to substitute Hector Ortiz, in his capacity as temporary administrator of the Ortiz estate, as the party plaintiff.
On October 31, CIOX and NYPH filed motions for judgment on the pleadings or to dismiss the remaining cause of action. NYPH and CIOX assert that the plaintiff lacks standing to pursue either damages or injunctive relief, that § 18(2)(e) does not accord a private right of action, that the plaintiff's proposed class is overbroad, and that CIOX's copying costs are not at issue in this litigation.
Discussion
I. Article III Standing
"Whether a plaintiff possesses standing to sue under Article III is the threshold question in every federal case, determining the power of the court to entertain the suit." Nat. Res. Def. Council v. Nat'l Highway Traffic Safety Admin.,
(1) injury-in-fact, which means an actual or imminent and concrete and particularized harm to a legally protected interest; (2) causation of the injury, which means that the injury is fairly traceable to the challenged action of the defendant; and (3) redressability, which means that it is likely, not speculative, that a favorable decision by a court will redress the injury.
CIOX and NYPH moved earlier in this case to dismiss Ortiz's claims for lack of standing. They argued that Ortiz lacked standing to pursue her claims for damages because the FAC failed to allege that she, rather than her attorney, was injured. They also argued that the FAC failed to allege a likelihood of future injury sufficient to confer standing for injunctive relief. They further argued that, even if Ortiz had standing at one point, her claims became moot when CIOX unilaterally refunded to her credit card the amount of the alleged overcharge. Each of these arguments was rejected in the February 2018 Opinion. See Ortiz,
In their current motion, the defendants reframe their mootness argument as a standing argument. It remains a mootness argument, see Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc.,
The defendants additionally argue that, because Ortiz recently died, Hector Ortiz does not have standing to pursue claims for injunctive relief on her behalf. The defendants are incorrect. Although Ortiz has died, it is plausible that her estate will need to obtain copies of her medical records in connection with the administration of her estate. Section 18 allows representatives of a decedent's estate to obtain medical records; persons with power of attorney to make such requests are "qualified persons" under the statute. See N.Y. Pub. Health L. ("PHL") § 18(1)(g). Hector Ortiz brings this litigation in his capacity as temporary administrator of Ortiz's estate. As such, Ortiz's death does not impact Hector Ortiz's standing to seek injunctive relief.
II. Private Right of Action
Defendants seek judgment on the pleadings on the grounds that § 18(2)(e) contains neither an express nor implied private right of action. The defendants are correct.
Section 18 does not contain any express grant of a private right of action. Where a statute does not expressly provide for a private right of action, a plaintiff "can seek civil relief in a plenary action based on a violation of the statute only if a legislative intent to create such a right is fairly implied in the statutory provisions and their legislative history." Cruz v. TD Bank, N.A.,
The New York Court of Appeals has articulated a three-part test to govern this inquiry. Courts must determine "(1) whether the plaintiff is one of the class for whose particular benefit the statute was
The "[a]nalysis begins, of course, with the statute itself." Burns Jackson,
Since at least 1953, when the Public Health Law was recodified to reflect its current organization, the law has provided two mechanisms to enforce its provisions: a civil penalty, imposed by the Commissioner of Health, or an action pursuant to Article 78 of the Civil Practice Law and Rules. Compare 1953 N.Y. Sess. L., ch. 879, §§ 12-13, with PHL §§ 12-13. Section 12 of the Public Health Law authorizes the Commissioner of Health to impose a fine of $2,000 per violation -- escalating to up to $5,000 for any subsequent violation -- on "any person who violates ... any term or provision of this chapter ... for which a civil penalty is not otherwise expressly prescribed by law." PHL § 12(1)(a)-(b).
On July 21, 1986, the New York Legislature amended the Public Health Law by adding § 18, which allows patients and other "qualified persons" access to patient medical records. 1986 N.Y. Sess. L., ch. 497, § 1. Section 18(2)(a) requires health care providers to provide an opportunity for the inspection of patient information on written request. Section 18(2)(d) provides a right to a copy of patient records. It states that, "upon the written request of any qualified person, a health care provider shall furnish to such person, within a reasonable time, a copy of any patient information requested...." PHL § 18(2)(d).
The statute also gave providers a right to reimbursement. Section 18(2)(e) authorizes the provider to impose "a reasonable charge for all inspections and copies, not exceeding the costs incurred by such provider."
This right to judicial review, however, was accompanied by more limited remedies than those ordinarily available in an Article 78 special proceeding. Article 78 generally permits recovery for "restitution or damages ... incidental to the primary relief sought." C.P.L.R. § 7806 ; Kirschner v. Klemons,
Against this backdrop, on June 12, 1991, the New York Legislature passed an amendment to § 18 that is the subject of this litigation. 1991 N.Y. Sess. L., ch. 165, § 49. That amendment added a single sentence to § 18(2)(e), limiting the "reasonable charge" which a health care provider may impose in connection with copies of medical records to not more than $0.75 per page. As currently enacted, § 18(2)(e) provides as follows:
The provider may impose a reasonable charge for all inspections and copies, not exceeding the costs incurred by such provider.... However, the reasonable charge for paper copies shall not exceed seventy-five cents per page. A qualified person shall not be denied access to patient information solely because of inability to pay.
PHL § 18(2)(e) (emphasis added).
At issue is whether, by prohibiting health care providers from charging more than $0.75 per page in connection with inspecting or copying medical records, the Legislature implied a private right of action. For the reasons described below, the text, structure, and legislative history of § 18(2)(e) do not permit a finding that New York's Legislature intended to create a private right of action.
As a threshold matter, there is no dispute that the first factor weighs in favor of recognizing a private right of action for violations of § 18(2)(e). The price-per-page provision was added to § 18 in 1991, five years after the Legislature first afforded consumers an opportunity to inspect and obtain copies of their medical records. 1991 N.Y. Sess. L., ch. 165, § 49. The provision capped the charges health care providers
It is less clear that the recognition of a private right of action would promote the legislative purpose in enacting the statute, which is the second factor. The one-sentence amendment that was made to § 18 was a miniscule part of a massive overhaul to the Public Health Law that principally revised New York's Medicaid program. See 1991 N.Y. Sess. L., ch. 165. When the bill was submitted to then Governor Mario Cuomo for approval, a Memorandum from the Senate and various submissions were included in the Bill Jacket for the Governor's review.
Two submissions included in the Bill Jacket -- one from the New York State Office for the Aging and one from the New York Public Interest Research Group -- addressed the price-per-page provision in § 18 specifically. Both submissions supported the amendment as a means of curbing fees associated with access to medical records. The submission by the Office for the Aging stated, in part:
These Sections impose a ceiling on the amount that may reasonably be charged for paper copies of medical records requested by patients and other "qualified persons." The New York State Office for the Aging supports this measure and recommends careful monitoring to help ensure that the ceiling of seventy-five cents per page not become a standard charge. The reasonable cost of providing many medical records is less than seventy-five cents per page.
Letter from the Office for the Aging, Bill Jacket, L. 1991, ch. 165, at 50. By enacting the price-per-page provision, the Legislature clearly intended to control patient costs associated with access to medical records. Because the threat of an additional enforcement mechanism -- civil lawsuits against health care providers -- would likely add to the growth in medical costs, it is debatable whether recognition of a private right of action would promote the legislative purpose, whether considered from the perspective of either § 18 alone or in the context of the 1991 revisions to the Public Health Law in their entirety.
The third factor is whether recognition of a private right of action "would be consistent with the legislative scheme." Cruz,
[T]he Legislature has both the right and the authority to select the methods to be used in effectuating its goals, as well as to choose the goals themselves. Thus, regardless of its consistency with the basic legislative goal, a private right of action should not be judicially sanctioned if it is incompatible with the enforcement mechanism chosen by the Legislature or with some other aspect of the over-all statutory scheme.
The New York Legislature has provided two mechanisms to enforce the $0.75 maximum copying charge described in § 18(2)(e). First, under § 12, the Legislature has authorized the Commissioner of Health to impose substantial fines for violations of any provision of the Public Health Law "for which a civil penalty is not otherwise expressly prescribed by law." PHL § 12(1)(a)-(b). Because § 18(2)(e) does not prescribe a civil penalty, a violation of its terms may be subject to enforcement through § 12. Second, under § 13, the Legislature has allowed New York citizens to enforce any provision of the Public Health Law through an action under Article 78. The parties agree that an action under Article 78 would have allowed Ortiz to obtain a judgment compelling NYPH to provide her with copies of her medical records in compliance with § 18(2)(e) -- that is, at a reasonable charge not more than $0.75 per page. See In re Barbara Halio v. IOD Inc.,
The authorization of enforcement by the Commissioner of Health and the provision of a remedy pursuant to Article 78 are each sufficient to foreclose the recognition of a private right of action. See, e.g., Schlessinger v. Valspar Corp.,
The Legislature's intent to limit the scope of the remedies under § 18 is confirmed by other provisions of the statute. In § 18(3), for example, the Public Health Law provides that, in the event of a denial of access to medical records, a qualified person may seek review by a committee designated by the Commissioner of Health. PHL § 18(3)(f), (4). If the committee reaches an adverse decision, § 18 further authorizes the qualified person to seek judicial review in an Article 78 proceeding.
Given that the Legislature established specific administrative and judicial remedies in § 18, "[i]t is fair to infer that the Legislature considered carefully the best means for enforcing the provisions of [the statute], and would have created a private right of action ... if it found it wise to do so." McLean v. City of New York,
The plaintiff argues that a private right of action should be allowed because § 18(2)(e) uses mandatory language that confers rights on particular individuals. He principally relies on Maimonides Med. Cent. v. First United Am. Life Ins. Co.,
In both of these cases, the courts found a private right of action to exist when construing clauses contained within statutory provisions that were addressed directly to the remedies for a violation. Section 18(2)(e) is not a remedies provision; its is a standards provision.
In Maimonides, the court construed a New York insurance law that imposed standards upon insurers for prompt payment of claims.
In addition to the penalties provided in this chapter, any insurer ... that fails to adhere to the standards contained in this section shall be obligated to pay tothe health care provider or person submitting the claim, in full settlement of the claim or bill for health services, the amount of the claim or health care payment plus interest.
Likewise, in Medicare Beneficiaries Def. Fund, the court addressed a clause in the statute's description of a remedy, in this case for a physician's overcharge of Medicare beneficiaries.
The sentence setting forth the maximum price-per-page in § 18(2)(e) bears none of the hallmarks of the provisions which the courts in Maimonides and Medicare Beneficiaries found to imply a private right of action. Section 18(2)(e) sets forth the standards with which providers must comply when providing access to medical records. Section 18(2)(e) is not a remedies provision and therefore the sentence at issue does not appear in the midst of a remedies provision. Moreover, the sentence itself sets out a maximum charge but not a remedy for an overcharge. It cannot fairly be read to authorize a private right of action if the provider charged the person requesting a copy of the records over $0.75 per page.
Plaintiff's citation to Medicare Beneficiaries Def. Fund is unavailing for other reasons as well. Medicare Beneficiaries concerned § 19 of the Public Health Law, where the Legislature required physicians to "refund to the beneficiary the amount collected in excess" of the "reasonable charge." PHL § 19(1), (4). Section 19 was added to the Public Health Law in July 1990 during the 213th legislative session. 1990 N.Y. Sess. L, ch. 572. In the very next session -- less than one year later -- the Legislature enacted the amendment to § 18(2)(e) capping the reasonable charge for copies of medical records at $0.75 per page. 1991 N.Y. Sess. L., ch. 165, § 49. Although enactment of these two provisions are nearly contemporaneous, only § 19 requires a refund of charges that exceed the statutory limit. "A due respect for the competence of the Legislature requires us to conclude that the [different] remedial choices it made were considered choices." People ex rel. Spitzer v. Grasso,
Plaintiff next argues that a private right of action is appropriate because "no special agency expertise is required to determine whether Defendants charged more than the statutory maximum." A court's competence to perform calculations is not a sufficient basis for concluding that a private right of action is consistent with the legislative scheme. In any event, plaintiff is wrong to assume that actions brought under § 18(2)(e) would be resolved by simple
Finally, plaintiff emphasizes that, in several other cases, courts appear to have assumed that § 18(2)(e) accords qualified persons a private right of action for damages. One of these decisions, Ruzhinskaya v. HealthPort Techs., LLC,
Conclusion
Defendants' October 31, 2018 motions for judgment on the pleadings are granted. The Clerk of the Court is directed to close the case.
Notes
In the alternative, NYPH moves for certification of an interlocutory appeal of certain jurisdictional rulings in the February 2018 Opinion and the viability of an implied private right of action under § 18.
Section 12 was recently amended with certain changes going into effect beginning April 1, 2020. Those amendments would allow the Attorney General, upon request of the Commissioner of Health, to bring an action for injunctive relief. The amendment effective April 1, 2020 further provides that, "it is the purpose of this section to provide additional and cumulative remedies, and nothing herein contained shall abridge or alter rights of action or remedies now or hereafter existing...." PHL § 12(6) (effective Apr. 1, 2020).
All citations are to the current version of the statute. Unless otherwise noted, language quoted from § 18 is unchanged since 1986.
The Commissioner of Health is required by statute to "designate medical record access review committees to hear appeals of the denial of access...." PHL § 18(4).
The New York Court of Appeals commonly relies on submissions included in the Bill Jacket as a source of legislative history. See, e.g., Kimmel v. State,
An action pursuant to N.Y. C.P.L.R. Article 78 is a "special proceeding."
Sections 18(12) further immunizes health care providers from liability "arising solely from granting or providing access to any patient information in accordance with this section." Although Sections 18(11) and (12) do not provide immunity for overcharges in violation of § 18(2)(e), see Spiro v. Healthport Tech.,
Plaintiff's citation to Negrin v. Norwest Mortgage, Inc.,
An earlier opinion in that case assumed the existence of a private right of action but noted that § 18's "text and history are silent as to the manner in which a requester's right not to be overcharged may be vindicated in court." Ruzhinskaya v. Healthport Technologies, LLC,