The Litigation of Rule 64B8-10.003 and Section 456.057 – Part I

Judges protecting patients rights

Now that we’ve explained the complicated relationship between Rule 64B8-10.003, Florida Administrative Code (“the Rule”) and Section 456.057, Florida Statutes (“the Statute”), we’ll get to the good stuff – the ongoing litigation resulting from that relationship.

The first lawsuit, a class action, came in 2012 when Barbara Allen asked the Hillsborough County Circuit Court to determine whether the patient rate applied when she asked her doctors to send her medical records to her attorney (a.k.a. her legal representative). The court analyzed the Rule in conjunction with the Statute and concluded that the patient rate applied “irrespective of whether the patient’s request for copies was delivered, initiated, or made by the patient’s legal representative . . . and irrespective of whether the request for copies be delivered to the patient’s legal representative.” In other words – specifically, those of our last post – the court took up residence in camp number 2.

This was clearly a resounding win for the plaintiff and her attorney! It also helped pave the way for the plaintiff in the next class action lawsuit, which was also filed in 2012 in Hillsborough County. In that lawsuit, Patricia Webber asked the court to determine which rate applied to requests for her medical records made by her attorney, and whether the practice of charging the higher other entities rate to her attorney violated the Florida Deceptive and Unfair Trade Practices Act (FDUTPA).

Notably, the defendant, a release-of-information (ROI) company called Bactes Imaging Solutions (Bactes), “agreed to assume” that it violated the Rule but denied that it violated FDUTPA by applying the higher other entities rate to requests made by the plaintiff’s attorney. The trial court found in favor of Bactes, but the Second District Court of Appeal reversed and remanded, finding that Bactes did, in fact, violate FDUTPA.

That’s right – another huge victory for the plaintiff and her attorney! And apparently one that Bactes wasn’t going to accept without a fight. It appealed the decision to the Florida Supreme Court, asking it to exercise discretionary jurisdiction to resolve an alleged conflict between the District Courts of Appeal as to the proper definition of “unfair” trade practices. The Supreme Court case is still pending (and we’re keeping a close eye on it!).

Meanwhile, back in the trial court, Bactes – which is now known as ShareCare Health Data Services – is still fighting its liability for damages in the class action, which, according to the plaintiff, amount to $426,272.24. Luckily, though, what Bactes can no longer fight are plaintiffs’ attorneys who demand the patient rate when they request their clients’ medical records. That’s because the trial court permanently enjoined Bactes from charging the higher other entities rate in such situations.

There’s one last class action that should be on your radar, but we think this is enough excitement for one post! If you just can’t contain your curiosity, tune into our next post for our thoughts on Mathews v. MD Now Medical Centers, Inc. (Case No. 2013CA009428).

Update (and good news): on October 30, 2020, the Florida Supreme Court declined to accept jurisdiction over Bactes’ appeal and denied its petition for review.

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Disclaimer: The information provided through these blog posts does not, and is not intended to, constitute legal advice; instead, all information, content, and materials available through these blog posts are for general informational purposes only.

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