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PUBLIC HEALTH LAW SECTION 18 (2) (e) DOES NOT CREATE A PRIVATE RIGHT OF ACTION FOR THE VIOLATION OF THE REQUIREMENT THAT NO MORE THAN $ .75 PER PAGE CAN BE CHARGED FOR MEDICAL RECORDS (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Singas, over a concurrence, determined there is no private right of action for a violation of Public Health Law section 18 (2) (e), which limits the charge for copies of medical records to $ .75 per page. Defendant charged plaintiff $1.50 per page:

Applying the Sheehy factors here, we conclude that no private cause of action exists for violations of Public Health Law § 18 (2) (e). The first factor is satisfied. Ortiz [plaintiff] is clearly part of a class that section 18 was designed to protect. The original law and its subsequent amendment were intended to increase patient access to medical records, and prevent medical providers from overcharging patients for copies of their medical records … . …

Turning to the second factor, it is unclear whether a private right of action would promote the legislative purpose.  * * * … [G]iven the substantial fines the Commissioner and the Attorney General can impose, the additional deterrent effect of a private right of action is difficult to ascertain.

Even assuming the second factor is satisfied, though, the final factor—consistency with the legislative scheme—is clearly not. … [E]nforcement mechanisms already exist for section 18. First, the Commissioner and Attorney General’s ability to impose substantial fines against providers that overcharge for copies of records acts as a deterrent … . Second, the Attorney General’s duty to seek injunctive relief upon the request of the Commissioner provides a legal mechanism for ending any widespread practices violating section 18. Finally, an individual patient’s ability to commence an article 78 proceeding to enforce the law’s provisions provides recourse for individual patients who are unable to access their records due to illegally high costs. Ortiz v Ciox Health LLC, 2021 NY Slip Op 06425, Ct App 11-18-21

 

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