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Landay v. Rite Aid of Pennsylvania, Inc.

Supreme Court of Pennsylvania

November 24, 2014

DAVID M. LANDAY AND PATBERG CARMODY & GING, Appellees
v.
RITE AID OF PENNSYLVANIA, INC., Appellant

Argued April 8, 2014

Page 1273

Appeal from the Order of the Superior Court entered March 23, 2012 at No. 901 WDA 2011, reversing the Order of the Court of Common Pleas of Allegheny County, Civil Division, entered May 5, 2011 at No. GD-10-005782, and remanding. Appeal allowed August 27, 2013 at 175 WAL 2012. Trial Court Judge: R. Stanton Wettick, Jr., Senior Judge. Intermediate Court Judges: Kate Ford Elliott, President Judge Emeritus, Jacqueline O. Shogan, Robert E. Colville, JJ. .

For Rite Aid, APPELLANT: John Kenneth Gisleson, Esq., Morgan, Lewis & Bockius LLP; Christian David Sheehan, Esq., Schnader Harrison Segal & Lewis LLP; Carl A. Solano, Esq. Schnader Harrison Segal & Lewis, L.L.P.

For Pennsylvania Pharmacists Association, Appellant Amicus Curiae PPA and NACDS, APPELLANT AMICUS CURIAE: Steven Edward Grubb, Esq., Goldberg Katzman, P.C.

For David Landay and Patberg, Carmody & Ging, APPELLEE: Paul Adams Lagnese, Esq., Berger & Lagnese, L.L.C.; David McCaffery Paul, Esq., Berger & Lagnese, L.L.C.; James Pietz, Esq.

For Pennsylvania Association for Justice, APPELLEE AMICUS CURIAE: David C. Harrison, Esq.

BEFORE: CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, STEVENS, JJ. MADAME JUSTICE TODD. Former Justice McCaffery did not participate in the decision of this case. Mr. Chief Justice Castille and Messrs. Justice Saylor, Eakin, Baer and Stevens join the opinion.

OPINION

Page 1274

MADAME TODD, JUSTICE

In this discretionary appeal, we consider whether the Medical Records Act (" MRA" or " the Act" ), 42 Pa.C.S.A. § § 6151-6160, applies to the reproduction of records by pharmacies, and, if so, whether, and under what circumstances, pharmacies may charge customers a flat fee for the reproduction of records. For the reasons that follow, we hold that the Act does not apply to pharmacies, and, as a result, we need not address the flat fee issue. In light of our conclusions, we reverse the decision of the Superior Court.

Briefly, and by way of background, the MRA was enacted in 1986. The Act, as described by this Court,

recognizes that a patient has a right to his own medical records; authorizes the use of certified copies of original medical records at trials and other proceedings without the necessity of preliminary testimony respecting foundation, identity and authenticity; streamlines the process for securing copies of medical records; and . . . addresses what medical records providers can charge for the copies provided.

Chiurazzi Law Inc. v. MRO Corp., 97 A.3d 275, 276 (Pa. 2014).

Notably, when first enacted, the Act referred only to subpoenas for records served upon employees of " health care facilities." Further, the Act did not contain statutory caps on the amount that could be charged for the reproduction of records. In 1998, however, the Act was amended in several respects pertinent to this appeal. First, Section 6152(a)(1) was expanded to include subpoenas served upon a " health care provider" :

When a subpoena duces tecum is served upon any health care provider or an employee of any health care facility licensed under the laws of this Commonwealth, requiring the production of any medical charts or records at any action or proceeding, it shall be deemed a sufficient response to the subpoena if the health care provider or health care facility notifies the attorney for the party causing service of the subpoena, within three days of receipt of the subpoena, of the health care provider's or facility's election to proceed under this subchapter.

42 Pa.C.S.A. § 6152(a)(1) (as amended in 1998) (emphasis added to indicate amendments).

In addition, the 1998 amendments limited the amount a health care provider or health care facility could charge for the reproduction of medical charts or records by adding the following subsection:

Except as provided in subparagraph (ii) [relating to record requests by a district attorney], the health care provider or facility or a designated agent shall be entitled to receive payment of such expenses before producing the charts or records. The payment shall not exceed

Page 1275

$15 for searching for and retrieving the records; $1 per page for paper copies for the first 20 pages; 75¢ per page for pages 21 through 60; and 25¢ per page for pages 61 and thereafter; $1.50 per page for copies from microfilm; plus the actual cost of postage, shipping or delivery. No other charges for the retrieval, copying and shipping or delivery of medical records other than those set forth in this paragraph shall be permitted without prior approval of the party requesting the copying of the medical records. The amounts which may be charged shall be adjusted annually beginning on January 1, 2000, by the Secretary of Health of the Commonwealth based on the most recent changes in the consumer price index reported annually by the Bureau of Labor Statistics of the United States Department of Labor.

42 Pa.C.S.A. § 6152(a)(2)(i) (as amended in 1998).[1]

Finally, Section 6155(b) of the Act was amended to allow a patient's designee, including his attorney, the right to obtain copies of medical charts and records upon request, without a subpoena, for an amount not in excess of that set forth above in Section 6152(a)(2)(i):

(b) Rights to records generally.--
(1) A patient or his designee, including his attorney, shall have the right of access to his medical charts and records and to obtain photocopies of the same, without the use of a subpoena duces tecum, for his own use. A health care provider or facility shall not charge a patient or his designee, including his attorney, a fee in excess of the amounts set forth in section 6152(a)(2)(1) (relating to subpoena of records).

42 Pa.C.S.A. § 6155(b)(1) (as amended in 1998).[2] With these relevant sections of the MRA in mind, we turn to the facts of the instant case.

Appellant Rite Aid of Pennsylvania, Inc. (" Rite Aid" ) is a Pennsylvania corporation that operates pharmacies throughout the Commonwealth. In or around December 2008, Attorney David A. Landay submitted to Rite Aid an " authorization" on behalf of an individual, requesting copies of the individual's pharmacy records. Around the same time, the law firm of Patberg Carmody & Ging (" PC& G" ) also submitted an authorization to Rite Aid requesting copies of pharmacy records for an individual.[3] In response to the requests, Rite Aid sent invoices for $50 to both Landay and PC& G (collectively, " Appellees" ); both invoices contained the following language:

FOR PROFESSIONAL SERVICES RENDERED IN RESPONSE TO THE FOLLOWING REQUEST/SUBPOENA FOR PRESCRIPTION FILES AS FOLLOWS: RESEARCH

Page 1276

& PREPARATION OF FILES, CLERICAL EXPENSES, PHOTOCOPYING EXPENSES AND POSTAGE AND HANDLING.

Rite Aid Invoices, 12/4/08 and 12/3/08. Appellees paid the invoices, and Rite Aid provided the requested ...


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