Not every violation of the law gives you a lawsuit

If you work in a field that requires that you review medical records, you know that medical providers (like hospitals and doctors) will charge 75 cents per page. That may seem like a lot of money, but if you need the records, you'll pay the bill and wonder where all your money is going. This case asks whether you can sue the medical provider for charging more than 75 cents.

The case is Ortiz v. Ciox Health LLC, issued on December 16. The Public Health Law says the medical providers cannot charge more than 75 cents per page. So what if the provider charges you $1.50 per page? Can you sue the provider under the Public Health Law? Bear in mind that Ortiz brought this case as a class action, which is the only way a case like this would be worthwhile.  

When this case first reached the Second Circuit in June 2020, it decided to send this issue to the New York Court of Appeals since this was a matter of first impression under state law and it's best to let the state courts resolve this issue in the first instance. We call that certification. The New York Court of Appeals decided in November 2021 that the Public Health Law does not provide a private right action when medical providers charge more than 75 cents for medical records. 

If you care about things like this, the New York Court of Appeals provides some background into this law, noting that, prior to this law's enactment in 1986, patients had no right to review their medical records, which were considered the property of the doctors and hospitals. But the law also allowed medical providers to charge a copying fee, set at 75 cents per page in 1991. That amount has not changed. While the Public Health Law contains no provision allowing people to sue the medical provider for price gauging, the state can impose a civil penalty for these violations, up to $2,000 for each violation. The State Attorney General can also bring an action for an injunction against the greedy photocopy people. But no provision for a private lawsuit.

Public Health Law § 18 was enacted in 1986 and governs “[a]ccess to patient information” (L 1986, ch 497). Before 1986, “most physicians, hospitals and other health care facilities [did] not permit a patient to inspect or obtain copies of records” because these records were “treated as the exclusive property of the provider” (Assembly Introducer's Mem in Support, Bill Jacket, L 1986, ch 497 at 12). The 1986 bill was intended to end this practice, giving “qualified persons” broad, but not unlimited, access to their medical records.² Section 18 accordingly gave patients the legal right to examine and obtain copies of their medical records, tempered by the medical provider's right to refuse access if it would cause substantial harm or if the requested material consisted of the provider's personal notes (id.; see Public Health Law § 18 [2]-[3]). Section 18 (2) (e) required medical providers to impose only a reasonable charge for paper copies of medical records but did not dictate a statutory maximum.

Ortiz v. Ciox Health LLC, No. 26, 2021 WL 5407394, at *1 (N.Y. Nov. 18, 2021)

Public Health Law § 18 was enacted in 1986 and governs “[a]ccess to patient information” (L 1986, ch 497). Before 1986, “most physicians, hospitals and other health care facilities [did] not permit a patient to inspect or obtain copies of records” because these records were “treated as the exclusive property of the provider” (Assembly Introducer's Mem in Support, Bill Jacket, L 1986, ch 497 at 12). The 1986 bill was intended to end this practice, giving “qualified persons” broad, but not unlimited, access to their medical records.² Section 18 accordingly gave patients the legal right to examine and obtain copies of their medical records, tempered by the medical provider's right to refuse access if it would cause substantial harm or if the requested material consisted of the provider's personal notes (id.; see Public Health Law § 18 [2]-[3]). Section 18 (2) (e) required medical providers to impose only a reasonable charge for paper copies of medical records but did not dictate a statutory maximum.

Ortiz v. Ciox Health LLC, No. 26, 2021 WL 5407394, at *1 (N.Y. Nov. 18, 2021)

The case now returns to the Second Circuit to apply the New York Court of Appeals' ruling to this case. Now that the state court has issued a ruling, this is an easy call for the Second Circuit, which says that Ortiz cannot bring a private lawsuit, and the case is over.