In Banuelos v. University of Wisconsin Hospitals and Clinics Authority (2023 WI 25), the Wisconsin Supreme Court held that Wisconsin law did not permit a health care provider to charge any fee to a patient’s attorneys for providing an electronic copy of her health care records.

Facts

Banuelos was pursuing a personal injury suit when her attorney requested copies of her health care records from the University of Wisconsin Hospitals and Clinics Authority. UW Hospitals fulfilled the request through its records vendor, Ciox, which provided Banuelos’ attorney with electronic copies of her records and an invoice for $109.96. This bill was based on the maximum allowable per-page fee for paper copies of patient health care records under Wis. Stat. § 146.83(3f).

Banuelos sued UW Hospitals, arguing that Wisconsin law does not permit providers to charge anything for electronic records because those records do not fall into any of the categories listed in Wis. Stat. § 146.83(3f). UW Hospitals filed a motion to dismiss, reasoning that it could not have violated the law because the statute simply does not address electronic records. The motion to dismiss was granted by the circuit court and the appellate court reversed.

Decision

In a 4-3 decision (Justice Walsh Bradley, joined by Justices Dallet, Hagedorn, and Karofsky), the court held that “although Wis. Stat. § 146.83(3f) provides for the imposition of fees for copies of medical records in certain formats, it does not permit health care providers to charge fees for patient records in an electronic format.”

The court observed that Wis. Stat. § 146.83(3f)(b) lists the maximum allowable fees for several formats of health care records and limits providers to charging “no more than the total of all of the following that apply for providing the copies requested.”

Therefore, according to the court, Banuelos’ claim that “the fees charged here are unlawful under state law” survived the motion to dismiss “because fees for electronic copies are not enumerated in the statutory list of permissible fees that a health care provider may charge.”

Dissent

In a dissent, Justice R. Bradley (joined by Justice Roggensack and Chief Justice Ziegler) argued that the court misinterpreted Wis. Stat. § 146.83(3f) as giving providers permission to charge fees only for the types of records listed in statute, whereas the dissent understood the statute as limiting the allowable fees only for the types of records explicitly listed.

The dissent would have concluded that “because the fee caps imposed in Wis. Stat. § 146.83(3f) do not encompass electronic health care records, health care providers are free to charge whatever they choose, subject only to federal law.” According to the dissent, the court’s decision “converts statutory silence into a statutory prohibition, at the expense of fundamental freedom.”

The dissent favorably cited an amicus brief submitted by the Wisconsin Civil Justice Council, which argued: “In a free society, private behavior is allowed unless prohibited by law. Free people do not need the government’s permission before engaging in private conduct.” According to the dissent, the court’s decision “establishes a dangerous precedent that violates first principles and imperils liberty.”