TATYANA RUZHINSKAYA, as Administratix of the Estate of MARINA ROCHNIAK, Deceased, on behalf of themselves and all others similarly situated, Plaintiff-Appellant,
HEALTHPORT TECHNOLOGIES, LLC, Defendant-Appellee, BETH ISRAEL MEDICAL CENTER, Defendant.
Argued: April 15, 2019
from the March 14, 2018 judgment entered in the United States
District Court for the Southern District of New York
(Engelmayer, J.), granting Defendant-Appellee HealthPort
Technologies, LLC's motion for summary judgment. Because
this Court anticipates certifying certain questions to the
New York Court of Appeals after a final judgment is entered,
and wishes to avoid multiple, unnecessary proceedings, we
VACATE the grant of summary judgment and REMAND to the
district court with instructions to reinstate Beth Israel as
a party and to adjudicate the case to a final judgment. We
remand along the lines of the procedures set out in
United States v. Jacobson, 15 F.3d 19, 22 (2d Cir.
1994), so that any new appeal will be referred to this panel.
P. JASINSKI, MOTLEY RICE LLC, HARTFORD, CT, FOR
PLAINTIFF-APPELLANT TATYANA RUZHINSKAYA.
LEFKOWITZ (NATHANIEL J. KRITZER, ON THE BRIEF), KIRKLAND
& ELLIS LLP, NEW YORK, N.Y. (SCOTT R. EMERY, LYNCH DASKAL
EMERY LLP, NEW YORK, N.Y.; REBECCA BRAZZANO, SETH A. LITMAN,
THOMPSON HINE LLP, NEW YORK, N.Y., ON THE BRIEF), FOR
DEFENDANT-APPELLEE HEALTHPORT TECHNOLOGIES, LLC.
Before: KEARSE, WINTER, and POOLER, Circuit Judges.
POOLER, Circuit Judge.
Court anticipates certifying to the New York Court of Appeals
issues of statutory interpretation as to New York Public
Health Law § 18 and wishes to avoid multiple,
unnecessary proceedings. Accordingly, we vacate the grant of
summary judgment and remand the case to the district court
with instructions to reinstate Beth Israel as a party and to
adjudicate the case to a final judgment. We remand along the
lines of the procedures set out in United States v.
Jacobson, 15 F.3d 19, 22 (2d Cir. 1994), so that any new
appeal will be referred to this panel.
case involves claims of excessive charges for medical records
under New York Public Health Law ("PHL") § 18,
which governs access to and charges for patient medical
records. Plaintiff-Appellant Tatyana Ruzhinskaya alleges that
she was overcharged for copies of her late mother's
medical records. Ruzhinskaya initially brought claims both
against Beth Israel Medical Center, the hospital that housed
the medical records, and the "release of
information" ("ROI") company, HealthPort
Technologies, LLC, with whom Beth Israel contracted to
photocopy and provide the records to requesters on its
behalf. Nevertheless, on January 26, 2015, the "parties
. . . stipulate[d] to dismissal, without prejudice, of all
claims against Defendant Beth Israel Medical Center."
Dist. Ct. Dkt. No. 57, 1:14-cv-2921. Accordingly, the case
proceeded with HealthPort as the sole defendant.
and Beth Israel share a written agreement regarding fees that
HealthPort charges requesters of medical records. HealthPort
provides its services at no cost to Beth Israel and
"'charge[s] [requesters] the per-page fees as set
forth under state law' where state law so provides, on
the ground that such fees are 'presumed reasonable,'
and that HealthPort otherwise 'will charge a reasonable,
cost-based fee.'" Special App'x at 89-90
(quoting an agreement between HealthPort and Beth Israel).
undisputed that at all times relevant, HealthPort charged
requesters 75 cents per page, regardless of the actual
"cost incurred" in meeting such requests. The crux
of Ruzhinskaya's argument, both before the district court
and on appeal, is that a blanket charge of 75 cents per page
violates Section 18(2)(e). Under that section, a health care
"provider may impose a reasonable charge for all
inspections and copies, not exceeding the costs incurred by
such provider . . . . However, the reasonable charge for
paper copies shall not exceed seventy-five cents per
page." PHL § 18(2)(e).
April 29, 2015, Ruzhinskaya moved for class certification
with respect to her second amended complaint, seeking to
represent a statewide class defined to include all patients
or patient representatives who had made requests for patient
records from a healthcare provider for which HealthPort
charged 75 cents a page. After hearing argument, the district
court denied the motion to certify on November 9, 2015. The
district court noted that it was undisputed that HealthPort
charged 75 cents per page on behalf of all the hospitals who
retained it to fill records requests, but the "costs
incurred" in meeting records requests differed hospital
by hospital. Special App'x at 10. The district court
reasoned that the text of Section 18(2)(e) does not limit
"costs incurred" to certain species of costs such
as direct costs; rather, cognizable costs include labor costs
and overhead. Special App'x at 10-12. Nevertheless, the
district court held that "a more narrowly defined class,
one drawn to include all requests for records made to . . .
Beth Israel," would satisfy the requirements for
certification. Special App'x at 2. The district court
invited Ruzhinskaya to move to certify such a class.
accepted the court's invitation, moving to certify a
narrower class of persons who, between March 12, 2011 and the
present, had requested records from Beth Israel whose
requests had been serviced by HealthPort and who had been
charged 75 cents per page. The district court granted that
a pretrial conference, the issue arose of "whether
evidence of Beth Israel's costs incurred, to the extent
these had not been passed along to HealthPort, could be
received at trial as a component of the costs incurred."
Special App'x at 76. The district court directed the
parties to brief the issue. The court denied
Ruzhinskaya's motion in limine to exclude such evidence
of Beth Israel's costs incurred, reasoning that
HealthPort had no freestanding legal duties under Section 18.
Accordingly, were the case against HealthPort to reach trial,
the dispositive issue as to Ruzhinskaya's ...