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Newsouth Neurospine, LLC v. Hamilton

Supreme Court of Mississippi

November 21, 2019

NEWSOUTH NEUROSPINE, LLC
v.
MELITA C. HAMILTON NEWSOUTH NEUROSPINE, LLC
v.
MELITA C. HAMILTON

          DATE OF JUDGMENT: 03/12/2018

          JASPER COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT, HON. STANLEY ALEX SOREY JUDGE.

          TRIAL COURT ATTORNEYS: THOMAS L. TULLOS MATTHEW DAVID SITTON ROBERT A. MILLER.

          ATTORNEYS FOR APPELLANT: MATTHEW D. SITTON THOMAS L. KIRKLAND, JR.

          ATTORNEY FOR APPELLEE: THOMAS L. TULLOS.

          BEFORE KITCHENS, P.J., MAXWELL AND CHAMBERLIN, JJ.

          KITCHENS, PRESIDING JUSTICE.

         ¶1. Melita C. Hamilton sued Weatherford International, LLC, and William T. Dixon in the Circuit Court of the First Judicial District of Jasper County. During the lawsuit, Hamilton requested a copy of her medical records from NewSouth Neurospine, LLC. NewSouth billed Hamilton $210.65 for production of 233 pages of medical records and the execution of a medical records affidavit. When Hamilton disputed the amount of the fees, NewSouth asserted that the amount was allowed by Mississippi Code Section 11-1-52 (Rev. 2019). Hamilton moved for discovery sanctions on the ground that NewSouth's bill exceeded what was permitted by the Health Insurance Portability and Accountability Act (HIPAA). The trial court granted Hamilton's motion, finding that under the HIPAA Privacy Rule, NewSouth was limited to charging a reasonable, cost-based fee for reproduction of medical records. The trial court ordered NewSouth to refund Hamilton $159; NewSouth appeals.[1] We affirm the order of a refund for reproducing part of Hamilton's medical records, but we reverse the order of a refund of $25 for executing a medical records affidavit.

         FACTS

         ¶2. Mississippi Code Section 11-1-52 prescribes the maximum amounts that a Mississippi medical facility may charge for photocopying medical records. Section 11-1-52(1) provides, in pertinent part, that

[a]ny medical provider or hospital or nursing home or other medical facility shall charge no more than the following amounts to patients or their representatives for photocopying any patient's records: Twenty Dollars ($20.00) for pages one (1) through twenty (20); One Dollar ($1.00) per page for the next eighty (80) pages; Fifty Cents (50¢) per page for all pages thereafter. Ten percent (10%) of the total charge may be added for postage and handling.

Miss. Code Ann. § 11-1-52(1) (Rev. 2019). Under subsection (3), a medical facility may charge a maximum fee of $25 "for executing a medical record affidavit, when the affidavit is requested by the patient or the patient's representative." Miss. Code Ann. § 11-1-52(3) (Rev. 2019).

         ¶3. Mississippi Code Section 11-1-52 was amended in 2006 to codify the obligation of medical facilities to comply with HIPAA when charging fees for photocopying, postage, and handling of medical records. According to subsection (4), "[i]n charging the fees authorized under subsection (1) of this section, the medical provider, hospital, nursing home or other medical facility shall comply with the federal Health Insurance Portability and Accountability Act (HIPAA)." Miss. Code Ann. § 11-1-52(4) (Rev. 2019). Under 42 U.S.C. § 17935(e) and its implementing regulations, an individual has a right of access to a copy of his or her medical records, known as protected health information. 42 U.S.C. § 17935(e) (Supp. IV 2016); 45 C.F.R. § 164.524(a) (2019). For a copy of protected health information, the provider may charge the individual a "reasonable, cost-based fee" limited to the cost of:

(i) Labor for copying the protected health information requested by the individual, whether in paper or electronic form;
(ii) Supplies for creating the paper copy or electronic media if the individual requests that the electronic copy be provided on portable media;
(iii) Postage, when the individual has requested the copy, or the summary or explanation, be mailed; and
(iv) Preparing an explanation or summary of the protected health information, if agreed to by the individual as required by paragraph (c)(2)(iii) of this section.

45 C.F.R. § 164.524(c)(4) (2019).

         ¶4. NewSouth received Hamilton's written and signed medical records request on November 2, 2017. Hamilton requested that NewSouth mail a compact disc (CD) to her attorneys, Tullos and Tullos, PLLC, containing a copy of her medical records from September 23, 2011, to the present. Hamilton contended that NewSouth should charge her $6.50 for this service.[2] NewSouth invoiced Tullos and Tullos $210.65 for production of Hamilton's medical records on CD. NewSouth's invoice reflected that it charged Hamilton the maximum amounts permitted by Section 11-1-52. NewSouth charged $166.50 for 233 pages of medical records, equating to $1 per page for the first one hundred pages, and $.50 per page for the next 133 pages. NewSouth also charged $25 ...


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