Judge Engelmayer denied yesterday a motion for class certification against a medical records copying firm accused of charging a price beyond the statutory limit.  HealthPort Technologies, LLC retrieved and photocopied patient records at the rate of 75 cents per page (the statutory limit set by New York Public Health Law § 18 for recovering “costs incurred”) but the its actual “costs incurred” allegedly fell far below that.

Judge Engelmeyer declined to certify a state-wide class of patients at the over 500 medical facilities where HealthPort operated, as the differences in determining the “costs incurred” for each location meant that common questions did not predominate as required by Rule 23(b)(3):

It appears that HealthPort would attempt to defend a statewide class action, at least in part, on the basis of provider-specific costs, which vary dramatically.  This inquiry into how liability would be litigated is critical because, to assess whether a class is properly certified, the Court is required to consider, concretely, the evidentiary means by which liability would be established, and refuted at trial . . . . .  Here, HealthPort’s submissions strongly suggest that it would defend against a statewide class action both by pointing to its statewide costs—which it contends exceed 75 cents per page—and, where such an argument was available, by arguing that its costs in connection with the particular provider exceeded that figure. Various evidence shows that the costs HealthPort incurred in fulfilling patient records requests, far from being uniform across the state, differed significantly across healthcare providers in New York State.

Judge Engelmayer nonetheless indicated that he “stands ready” to certify a more narrow class (or classes) of patients of each medical center that utilized HealthPort to copy patient records:  “[A]ssuming the class were limited to persons who requested records from a single provider, such as Beth Israel, thereby reducing the ‘costs incurred’ inquiry to a single provider-level inquiry, a class action would be superior to the alternative of an individual lawsuit.”