18th Annual Workplace Class Action Report - 2022 Edition

Annual Workplace Class Action Litigation Report: 2022 Edition 437 (xxii) Wisconsin Hammetter, et al. v. Verisma Systems, Inc., 2021 Wisc. App. LEXIS 406 (Wisc. App. July 30, 2021). Plaintiffs, two patients, brought a putative class action alleging that Defendants wrongfully charged them for their medical records in violation of Wisconsin law. Specifically, Plaintiffs alleged violations of § 146.83 of the Wisconsin Code, which authorizes healthcare providers to charge a $28 fee if the requestor of medical records is not the patient or a person authorized by the patient. Plaintiffs had each signed an authorization that allowed their attorney representing them in individual personal injury lawsuits to secure release of their healthcare records. After the attorney requested and received Plaintiffs’ medical records, Defendants charged the attorney the $28 fee charged pursuant to § 146.83. The attorney paid the fee and Plaintiffs subsequently reimbursed the attorney pursuant to retainer agreements requiring such repayment from any recovery. Plaintiffs challenged Defendant’s policy of charging the authorized agents as unlawful and sought to certify a class of individuals who through authorized persons requested their healthcare records and were charged the $28 fee. The trial court granted Plaintiffs’ motion for class certification. On Defendant’s appeal challenging the class certification order, the Wisconsin Court of Appeals affirmed. The Court of Appeals rejected all of Defendants’ challenges to class certification, including those related to the findings necessary for certification, notice to potential class members, certification of common law claims, the statutory limitations period, and the voluntary payment doctrine. First, the Court of Appeals determined that certification was warranted because all class requirements were met including numerosity, commonality, typicality and adequacy. Defendants primarily challenged commonality in that Defendants maintained that the commonality requirement was not met because some in the class might be entitled to up to $25,000 in exemplary damages while others would be entitled to up to $1,000 in exemplary damages, depending on whether Defendants wrongfully charged the fees in a knowing and willful manner or negligently. The Court of Appeals was unpersuaded by this defense argument. It concluded that commonality was met as the common issue of whether Defendants’ practice was unlawful was at issue, and common proof would be used to establish the claims. Additionally, the Court of Appeals agreed with the trial court that common issues predominated and a class action was the superior method for adjudicating such a small amount-in- controversy. Secondly, the Court of Appeals rejected Defendants’ argument that Plaintiffs’ claims were time- barred, as it concluded that a six-year statute of limitations governed, and not a two-year limitations period as Defendants maintained. Finally, Defendants argued that class certification was inappropriate because proof of the voluntary payment defense would require mini-trials of each class members’ claims to determine if he or the requestor objected to the charges before paying them. The Court of Appeals determined that this issue was not a valid point of appeal, as the voluntary payment doctrine played no role in the class certification consideration in this case. As a result, the Court of Appeals concluded that the doctrine did not apply, since it would have undermined the statute’s primary purpose of relieving authorized persons from the fee burden. Rave, et al. v. SVA Healthcare Services, 2021 Wisc. App. LEXIS 195 (Wis. App. April 27, 2021). Following a car crash injury, Plaintiff’s counsel requested Plaintiff’s medical records from Defendant. After Defendant charged him fees in connection with retrieving the records, Plaintiff filed a class action alleging that the Defendant improperly charged "certification" and "retrieval" fees under § 146.83(3f)(b)4 of the Wisconsin Constitution. The trial court granted Plaintiff’s motion for class certification. On appeal, the Wisconsin Court of Appeals affirmed the trial court’s ruling. Under § 146.83(3f), a healthcare provider shall provide copies of a patient’s healthcare records "if a person requests copies of a patient’s healthcare records, provides informed consent, and pays the applicable fees under par.” Id . at *2. The Court of Appeals noted that the Wisconsin Supreme Court recently had ruled in a similar case that an attorney, who was authorized via a HIPAA release form to obtain health records on behalf of a client, could also benefit from the fee exemption. Plaintiff’s certified class consisted of all Wisconsin citizens similarly-situated who were wrongfully charged basic, retrieval, processing, and/or certification fees” by .the SVA. Id . at *3. Defendant contended that the class failed to meet the typicality and adequacy requirements. First, as to adequacy, Defendant argued that Plaintiff’s claims were untimely and therefore he lacked standing to bring them such that he was not an adequate class representative. The Court of Appeals, however, ruled that the statute of limitations defense was a straightforward issue that could be determined as a matter of law and should not be used to denied class certification. The Court of Appeals also held that the trial court properly found that Plaintiff’s claims arose from the same events or pattern of practice as those of the proposed class such that the claims met the typicality requirement. The Court of Appeals found that the common question of whether or not Defendant’s charges fees violated the law would predominate over all class members’ claims, and that class adjudication would be the superior method of