Andrea Townsend v. ChartSwap, LLC

2020 WI App 79
COURT OF APPEALS OF WISCONSIN
PUBLISHED OPINION

Case No.: 2019AP2034

† Petition for Review filed

Complete Title of Case:

ANDREA TOWNSEND,

PLAINTIFF-APPELLANT,

V.

CHARTSWAP, LLC,

DEFENDANT-RESPONDENT.†

Opinion Filed: November 17, 2020
Submitted on Briefs: September 9, 2020
Oral Argument:

JUDGES: Brash, P.J., Dugan and Donald, JJ.
Concurred:
Dissented:

Appellant
ATTORNEYS: On behalf of the plaintiff-appellant, the cause was submitted on the brief
of Robert J. Welcenbach of Welcenbach Law Offices, S.C., Milwaukee,
Scott Borison of Legg Law Firm LLC, Frederick, MD, and John Craig
Jones of Jones & Hill, LLC, Oakdale, LA.

Respondent
ATTORNEYS: On behalf of the defendant-respondent, the cause was submitted on the
brief of Andrew J. Wronski and Anne-Louise T. Mittal of Foley &
Lardner LLP of Milwaukee.
2020 WI App 79

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
November 17, 2020
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2019AP2034 Cir. Ct. No. 2018CV9938

STATE OF WISCONSIN IN COURT OF APPEALS

ANDREA TOWNSEND,

PLAINTIFF-APPELLANT,

V.

CHARTSWAP, LLC,

DEFENDANT-RESPONDENT.

APPEAL from an order of the circuit court for Milwaukee County:
PAUL R. VAN GRUNSVEN, Judge. Reversed and cause remanded.

Before Brash, P.J., Dugan and Donald, JJ.

¶1 DONALD, J. Andrea Townsend appeals an order of the circuit
court dismissing her action against ChartSwap, LLC. At issue on appeal is
No. 2019AP2034

whether ChartSwap may be held liable for violating WIS. STAT.
§ 146.83(3f)(b) (2017-18),1 which limits the amount that a health care provider
can charge for furnishing copies of patient care records. Upon review, we reverse
and remand.

BACKGROUND

¶2 On December 4, 2018, Townsend filed a class action complaint
against ChartSwap alleging the fees ChartSwap charged for providing copies of
medical records and billings exceeded statutorily imposed limits set forth in WIS.
STAT. § 146.83(3f)(b). According to the complaint, following a car accident,
Townsend authorized her attorneys to obtain her medical records and billings from
Milwaukee Radiologists. ChartSwap responded to the records request and
provided a one-page certified health care bill for Townsend in the sum of $35.87.
Townsend’s attorneys paid the fee and obtained Townsend’s records.

¶3 Townsend alleged, on behalf of herself and class members, that
ChartSwap charged an amount in excess of the statutorily-regulated rates dictated
by WIS. STAT. § 146.83(3f)(b), which provides:

(b) Except as provided in sub. (1f), a health care provider
may charge no more than the total of all of the following
that apply for providing the copies requested under par. (a):

1. For paper copies: $1 per page for the first 25 pages;
75 cents per page for pages 26 to 50; 50 cents per page
for pages 51 to 100; and 30 cents per page for pages
101 and above.

1
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.

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2. For microfiche or microfilm copies, $1.50 per page.

3. For a print of an X-ray, $10 per image.

4. If the requester is not the patient or a person
authorized by the patient, for certification of copies, a
single $8 charge.

5. If the requester is not the patient or a person
authorized by the patient, a single retrieval fee of $20
for all copies requested.

6. Actual shipping costs and any applicable taxes.

The complaint alleged that ChartSwap was subject to the same statutory
regulations as the health care provider, here, Milwaukee Radiologists. The
complaint also alleged a claim of unjust enrichment.2

¶4 ChartSwap moved to dismiss the complaint, arguing that WIS. STAT.
§ 146.83(3f)(b) applies only to “health care providers,” “a term that the health-
records statute defines as comprising 26 discrete categories of individual health
care providers, associations of individual health care providers, and licensed health
care facilities.”

¶5 The circuit court granted ChartSwap’s motion to dismiss. Relying
on a decision of the United States District Court for the Eastern District of
Wisconsin, Smith v. RecordQuest, LLC, 380 F. Supp. 3d 838 (E.D. Wis. 2019),
the circuit court found that WIS. STAT. § 146.83(3f)(b) does not impose liability on
entities that are not health care providers even when they act as agents of health

2
Because we reverse on the grounds that ChartSwap is subject to WIS. STAT.
§ 146.83(3f)(b), we need not address the issue of unjust enrichment on appeal. See State v.
Blalock, 150 Wis. 2d 688, 703, 442 N.W.2d 514 (Ct. App. 1989) (We address cases on the
narrowest possible grounds.).

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care providers. In other words, the circuit court found that ChartSwap “cannot be
liable simply by virtue of being an agent of Milwaukee Radiologists.”

¶6 This appeal follows.

DISCUSSION

¶7 Our review of a circuit court’s order granting a defendant’s motion
to dismiss is de novo. See Beloit Liquidating Tr. v. Grade, 2004 WI 39, ¶17, 270
Wis. 2d 356, 677 N.W.2d 298. Here, the motion to dismiss turns on a question of
statutory interpretation, an issue we also review independently of the circuit court.
See Juneau Cnty. v. Associated Bank, N.A., 2013 WI App 29, ¶15, 346 Wis. 2d
264, 828 N.W.2d 262. “The purpose of statutory interpretation is to discern the
intent of the legislature. When we interpret a statute, we begin with the statute’s
plain language, as we assume the legislature’s intent is expressed in the words it
used.” Id., ¶16 (internal citation omitted). In addition, “[w]e interpret statutory
language in the context in which it is used, [and] in relation to the language of
surrounding or closely-related statutes[.]” Id. If this process of interpretation
yields a plain meaning, the statute is unambiguous, and we apply its plain
meaning. See State v. Harmon, 2006 WI App 214, ¶10, 296 Wis. 2d 861, 723
N.W.2d 732.

¶8 Access to patient health care records is governed by WIS. STAT.
§ 146.83. Under subsection (3f), a health care provider shall provide copies of a
patient’s health care records “if a person requests copies of a patient’s health care
records, provides informed consent, and pays the applicable fees under par. (b)[.]”
Id. As stated above, paragraph (b) imposes certain limits on costs imposed by
health care providers. The term “health care provider” applies to specifically-

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trained medical professionals and does not specifically apply to medical records
providers or medical billing agencies. See WIS. STAT. § 146.81.

¶9 ChartSwap argues that because it is not a health care provider, it is
not subject to the billing limitations set forth by WIS. STAT. § 146.83(3f)(b).
ChartSwap’s argument, however, ignores a key maxim of statutory construction,
which is that statutory provisions are not to be read in isolation, but must “be
looked at so as not to render any portion of the statute superfluous ... [and so as] to
avoid an unreasonable or absurd interpretation.” Belding v. DeMoulin, 2013 WI
App 26, ¶6, 346 Wis. 2d 160, 828 N.W.2d 890 (citation omitted).

¶10 With this maxim in mind, we are unwilling to read WIS. STAT.
§ 146.83 in a vacuum. Instead, we read this statute in conjunction with the
remedial provision set forth in WIS. STAT. § 146.84(1)(b), which explicitly
imposes liability upon “any person … who violates [§] 146.83,” and WIS. STAT.
§ 990.001(9), which expressly states that when construing legislative requirements
found in all statutes, the legislature’s requirements apply with equal force to the
acts of agents. While we agree that ChartSwap is not a health care provider, we
cannot ignore statutory agency law, which states:

In construing Wisconsin laws the following rules shall be
observed unless construction in accordance with a rule
would produce a result inconsistent with the manifest intent
of the legislature:

….

Acts by agents. If a statute requires an act to be done
which may legally be done by an agent, such requirement
includes all such acts when done by an authorized agent.

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Sec. 990.001(9). This statute reflects the general principle of agency law that if a
statute requires a certain action, the requirement equally applies to a principal’s
agents.

¶11 Relying on a decision of the United States District Court for the
Eastern District of Wisconsin in Smith, ChartSwap contends that this principle is
inapplicable to the case at bar.

¶12 Smith dealt with a similar factual situation to the one before us. In
that case, the district court stated that while WIS. STAT. § 990.001(9)

imputes the agent’s actions to the principal for purposes of
measuring the principal’s liability under a Wisconsin law; it
does not impute the principal’s liability to the agent
whenever the agent performs the act that results in the
principal’s liability. Thus, the rule does not support the
[notion] that the health[]records statute should be
interpreted to impose liability on persons who are not
health care providers when they act as agents of health care
providers.

Smith, 380 F. Supp. 3d at 844.

¶13 We note, first, that the district court’s decision is not binding upon
us. See State v. Mechtel, 176 Wis. 2d 87, 94-95, 499 N.W.2d 662 (1993). More
importantly, however, the district court’s decision not only undermines the
underlying purpose of WIS. STAT. § 146.83(3f)(b), which is to protect patients
from being charged excessive fees for access to information in the custody and
control of health care providers, but it also misinterprets WIS. STAT. § 990.001(9)
because the statute does not specifically deal with the imputation of liability.
Rather, the statute codifies the general rule of agency law, which is that if a statute
requires a certain action, that requirement applies equally to a principal’s agents.
See Rosecky v. Tomaszewski, 225 Wis. 438, 441-42, 274 N.W. 259 (1937)

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(“[W]hen a statute requires an act to be done which may by law as well be done by
an agent as by the principal, such requisition shall be construed to include all such
acts when done by an agent…. [T]he reason for [the predecessor statute to
§ 990.001(9)] … is that the act of an authorized agent is the act of the principal.”).
Accordingly, we conclude that agents of health care providers have no greater
power to charge fees in excess of those permitted by § 146.83(3f)(b) than the
providers themselves.

¶14 Here, Milwaukee Radiologists outsourced its responsibility to
provide patient records to ChartSwap. To allow a third-party to circumvent the
statutory limitation on health care providers simply because it does not provide
actual health care services would defeat the purpose of WIS. STAT. § 146.83(3f)(b)
in and of itself and would yield absurd results. The intent of the legislature was to
ensure that patients have access to medical records in the custody and control of
health care providers without being charged more than the reasonable costs of
copying and mailing them. See Moya v. Aurora Healthcare, Inc., 2017 WI 45,
¶34, 375 Wis. 2d 38, 894 N.W.2d 405 (Statutes addressing patient health care
records embody the “legislature’s expressed intent that a person with a written
authorization from a patient does not have to pay the certification charge or
retrieval fee for obtaining health care records.”); Cruz v. All Saints Healthcare
Sys., Inc., 2001 WI App 67, ¶8, 242 Wis. 2d 432, 625 N.W.2d 344
(Section 146.83 expresses the legislature’s intent that a person is entitled to obtain
his or her medical records at a reasonable cost.). This intent would be completely
defeated through a construction of the statute that would allow patients to be
charged more than the reasonable copying and mailing costs if the providers hire
others to perform the task of supplying the records. In short, the goal of patient

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protection would be eviscerated if health care providers could simply contract with
parties who were permitted to charge fees of their own liking.

¶15 Therefore, we conclude that ChartSwap was subject to the cost
containment protections provided by WIS. STAT. § 146.83(3f)(b), and, as an agent
of Milwaukee Radiologists under WIS. STAT. § 990.001(9), qualifies as “any
person” under the remedial provisions of WIS. STAT. § 146.84(1)(b). We reverse
the order of the circuit court and remand the matter.

By the Court.—Order reversed and cause remanded.

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