Like most practitioners of a specialty that requires the constant purchase and review of medical records, I had come to assume that I was lucky if the medical records company, or the hospital, charged me $.75 per page for the 500-page record I needed. That meant that someone had actually read the part of my request letter stating that they could not charge me more than $.75 per page, pursuant to New York’s Public Health Law, Section 18(2)[e]. Too often, providers would charge much more, and I would have to write back, asking them to lower their price so that it was in line with the PHL.
I had always thought that $.75 per page was a lot to pay for something that probably costs no more than a few cents at the provider’s end. And I have never been a fan of the so called “search fees” the providers like to charge, as they are arbitrary and unpredictable. I have heard grumbling from fellow lawyers on both sides–plaintiff’s and defense–for years about the painfully high cost of amassing the roomfuls of medical records necessary to prosecute and defend our cases. One of my colleagues on the New York City Bar’s Medical Malpractice Committee has drafted legislation intended to make the costs fairer and more predictable. But not much has happened to change things, until now.
Last week, Judge Michael Telesca, of the Western District of New York, issued a decision denying defendants’ motion to dismiss in the case of McCracken v. Verisma Systems, Inc., 6:14-cv-06248, NYLJ 1202737705857 (WDNY 2015). The defendants are providers of medical records, while the plaintiffs are patients who received medical treatment at the defendant facilities, and claimed that defendants overcharged them for copies of their medical records. The defendants charged the plaintiffs $.75 per page for their records. The relevant part of the statute is: “(e) 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… ” NY PHL Section 18(2)[e].
Plaintiffs argued that the PHL allows providers to collect a reasonable charge for copies, provided it (1) does not exceed the costs incurred by the provider, and (2) does not exceed $.75 per page of records. Id. at 11-12. Defendants argued that the PHL sets $.75 as a “presumptively reasonable price,” so that if a provider’s copying costs were less than $.75, the provider can go ahead and charge $.75 anyway. Id. at 11-12. Judge Telesca noted that defendants’ argument “effectively allows healthcare providers to make a profit on copying medical records if they can keep their actual copying costs under $0.75 per page.” Id. at 11-12. He found that defendants’ interpretation of the PHL “misreads the statute,” as such providers may not charge more than their actual costs, and even that is capped at $.75 per page. Id. at 11-12. Judge Telesca invited defendants to submit documentary evidence of actual costs incurred. Id. at 11-12.
So what are we going to do the next time we request medical records, people? Are we going to accept the going rate of $.75 per page, or are we going to fight, and use Judge Telesca’s words as our sharpest weapon?
Seventh Amendment – Civil Trials. In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.
The key phrase is “the right of trial by jury shall be preserved.” That right is vital to victims of medical malpractice for at least two reasons. First, medical malpractice plaintiffs deserve to have their cases heard in the fair and impartial manner that only a judge and jury can provide, before whom both sides get to present evidence in support of their cases. Second, medical malpractice plaintiffs deserve to have a jury decide the amount of compensation required to make a particular plaintiff whole, though many states have imposed limits, or “caps” on damages that can be awarded, which infringes on the jury’s function.
But there is a disturbing aspect of the jury trials to which medical malpractice victims are entitled, and hold dear: jury nullification, commonly defined as follows:
Jury nullification occurs when a jury returns a verdict of “Not Guilty” despite its belief that the defendant is guilty of the violation charged. The jury in effect nullifies a law that it believes is either immoral or wrongly applied to the defendant whose fate they are charged with deciding.
The term has always been applied in the context of criminal cases, and has usually been associated with positive results and just outcomes. But this has not always been the case. For instance, racist southern juries have used nullification to clear defendants of any responsibility for hate crimes.
The problem for medical malpractice plaintiffs is that more and more, jurors have resorted to nullification to clear doctors and hospitals that have clearly committed malpractice, according to the evidence. The reasons for this trend are many. Some jurors believe that they will somehow end up “paying for” a verdict against a health care provider. They fear health insurance rates will go up and doctors will flee from their state–mostly unrealistic fears created and publicized by the tort reformers who exist to protect corporate profits over patient safety. Some see physicians as just a step down from gods, and cannot bring themselves to allow justice for a wronged patient if it means something negative happening to a medical professional. And despite the best efforts of plaintiff’s lawyers to discover these biases during jury selection, many such people end up on too many juries. Moreover, the existence of these nullification trends are the worst-kept secret in the court system. I can’t tell you how many times I’ve been in particular venues that are known for not being “friendly” to plaintiffs, where the judge that my case gets assigned to calls the lawyers up for a bench conference, and in an effort to force an early, low-value settlement, says, “Mr. Barovick, I understand you feel you have a strong case, but remember, this is ___________.”
Allow me to translate. The judge has just told me that jurors in her county don’t like plaintiffs or their lawyers, and are extremely reluctant to find against anyone that has an M.D after their name. In other words, I have been told that I am going to lose the case if I insist on going through with the trial, so I might as well take the low offer being held out by the insurance company’s lawyer now, because something is better than nothing.
And usually, the judge is right. So when you hear, year after year, that of the medical malpractice cases that go to trial, most of them are lost, you can factor jury nullification into the equation. In these hard economic times, most plaintiff’s lawyers are too smart to waste their time and significant outlays of money on so-called “frivolous” cases. In addition to working hard to prepare their case for trial, they are also rolling the dice, and hoping for the best. Unfortunately, jury nullification often makes those efforts fruitless, and leaves clients who have been devastated by medical error wondering why justice has left them behind. That is criminal.
Last year, we were warned. The sugar industry was unwilling to let sales drop, just because its product helped make people obese and diabetic. Posts like this became more frequent. It wasn’t just about the dangers of too much sugar–it was about how to distract the American consumer from those dangers. And where did the sugar lords go to learn how to carry out this deception? As Kristina Bravo, of TakePart found, they went to the most experienced, best financed, slickest dressers of wolves in sheeps’ clothing out there: Big Tobacco. Cast doubt on the science with the most pliable experts that boatloads of money can buy. Give them their industry-serving talking points. Make fun of the “worry warts” who took the warnings of danger seriously.
Ms. Bravo quotes a University of California professor of pediatrics, who has found that the “food industry knows that when they add [sugar] to food, you buy more. They don’t add it for any other reason. You can’t tell how much sugar has been added, and the food industry wants it that way.” Sound familiar? It should. Just replace the word “sugar” with “nicotine,” and the fond memories should come flooding back.
Well, the warnings have turned out to be prescient. In today’s New York Times (August 10, 2015) is an article entitled, “Coca-Cola Funds Scientists Who Shift Blame for Obesity Away From Bad Diets.” Coke has put together a team of scientists to preach the message: “To maintain a healthy weight, get more exercise and worry less about cutting calories.” But many health experts warn that this message is misleading, that it works to deflect the role of Coke and its ilk in the spread of obesity and Type 2 diabetes, and that Coke is cynically trying to convince us that exercise can offset a poor, sugar-filled diet, even though most studies show that exercise “has only minimal impact on weight compared with what people consume.” This is more sophisticated stuff than just making fun of former NYC Mayor Michael Bloomberg’s “nanny state” of regulated soft drinks.
Why is it important to be wary of Big Sugar’s effort to emulate Big Tobacco? Because like Big Tobacco, which has lost the trust of anyone who knows about its role in creating tort reform, Big Sugar has lots to hide, and lots at stake, financially, if it fails in that effort. For example, something you are unlikely to hear about from Big Sugar is that academic scientists who publish in, say, The Journal of Diabetes Science and Technology, have found several troubling connections between the consumption of sugar and Alzheimer’s disease. But why worry about that when you’ll be too confused to remember much of anything at all about your eating history?