Eriksen v. Gruner & Simms, PLLC (Ky. App., 2013) 2012-CA-000563-MR May 17, 2013


This appeal concerns the interpretation of Kentucky Revised Statutes (KRS) 422.317(1),…
In granting summary judgment to Gruner, the circuit court relied on an opinion of the Attorney General which addressed which charges were permissible under the statute and whether a patient had the ability to assign his or her right to obtain a free copy of the records. See OAG 09-009 (Dec. 11, 2009) (2009 WL 4917549). The circuit court held that a patient could authorize a third party to pick up or receive the free copy of the medical records. The circuit court further held that the health care provider could charge a reasonable fee to cover the cost of sending the free record to a patient, by mail, fax or other means, as long as the patient was also provided with a free option, such as pick-up from the health care provider’s office.

On appeal, Eriksen contends that the statute only requires the release of the first, free copy of the medical records to the patient, and the patient alone. He argues that the plain language of the statute makes no provision for the assignment of the first free copy to an agent. He does state that he is not opposed to authorized parties picking up a free copy of the records, although he does not believe the statute requires this. Eriksen further contends that the plain language of the statute directing health providers to “provide” the medical records does not mandate the mailing or faxing of the free copy.

The OAG states in pertinent part that in a situation where a patient is requesting their one free copy allowed under KRS 422.317, providers must make a complete copy of the records available in some manner without requiring additional payments of any type. While KRS 422.317 requires hospitals and physicians to “provide” one copy of the records to the patient without charge, it does not set forth the manner in which records are to be delivered. In our view, a provider must make some arrangement for a patient to receive copies of their medical records without cost, whether that is to make them available for pickup, mailing, faxing or some other form of delivery. However, it does appear that the statute may allow a provider to charge additional fees for mailing, faxing or otherwise delivering the records to a patient if the patient is afforded some alternative method of delivery which does not include charges. For example, if a provider allows the patient an opportunity to pick up a copy of the records at the place where the treatment was rendered, but the patient or requesting party asks for those copies to be mailed or faxed, the provider could charge for that additional service.

While not binding on the courts, opinions of the Attorney General are generally considered persuasive. York v. Commonwealth, 815 S.W.2d 415, 417 (Ky.App. 1991). We agree with the circuit court and with the opinion of the Attorney General that the first, free copy of the records must be made available to an agent of the patient if the patient expressly so requests. Any other interpretation would mean that an incapacitated patient could face insurmountable obstacles to obtaining his or her medical records. We also agree that any reasonable expenses incurred by the medical provider in mailing, faxing or otherwise transmitting the records can be charged to the patient.
Finally, Eriksen argues that KRS 422.317 violates Section 2 of the Kentucky Constitution, which states that “absolute and arbitrary power over the lives, liberty and property of freemen exists nowhere in a republic, not even in the largest majority.” “In order to pass constitutional muster in this regard, a statute must be rationally related to a legitimate state objective.” Commonwealth v. Louisville Atlantis Community/Adapt, Inc., 971 S.W.2d 810, 816 (Ky. App. 1997). “[A] strong presumption exists in favor of a statute’s constitutionality. The [party] who questions the validity of an act bears the burden to sustain such contention.” TECO Mechanical Contractor, Inc. v. Commonwealth, Environmental and Public Protection Cabinet, 366 S.W.3d 386, 392-93 (Ky. 2012).

Eriksen argues that KRS 422.317 “enslaves” health care providers by requiring them to expend time, money and property in replicating a copy of their patients’ records without compensation. He argues that most, if not all patients, attorneys, insurers, and other third parties are easily capable of providing reimbursement for the records to the provider. He argues that it was an arbitrary and artificial decision of the Kentucky legislature to place the entire burden for the provision of medical records upon health care providers, and represents an unlawful extension of the legislature’s power.

Furthermore, state government often passes laws that increase the cost of doing business. Whether health care providers factor into their pricing the possibility of incurring expenses associated with statutory compliance is a business decision the government usually does not make for a business. At least it has not in this case. These constitutional arguments, therefore, necessarily fail.

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