MADISON, Wis. (Legal Newsline) - Wisconsin law prohibits hospitals from charging a fee for electronic medical records, the state’s highest court ruled, drawing a fierce dissent from conservative justices who invoked John Locke to accuse their liberal colleagues of a “remarkable misconception of democracy” and upholding “tyranny.”
The case involved a bill for $109.96 that an outside company sent to lawyers for Beatriz Banuelos after they requested her medical records from the University of Wisconsin Hospitals. Banueolos sued, arguing a state law limiting fees for paper records didn’t mention electronic records, meaning they should be free.
A trial judge disagreed, dismissing her case. But an appeals court reversed the dismissal and the Wisconsin Supreme Court affirmed in an April 4 decision that drew sharp divisions between the court’s liberal and conservative justices. That same day, control of the court flipped from conservative to liberal following the election of Judge Janet Protasiewicz to the bench.
In his dismissal order, the trial judge said “the legislature has failed to cover the situation where records are requested in electronic form.” Wisconsin Statute 146.83 specifies how much hospitals can charge for specific types of records including paper copies and X-ray images. Since the law didn’t put any limit on electronic copies, the judge ruled, Banuelos couldn’t claim the hospital had violated it.
The Supreme Court took the opposite approach. In a majority opinion by Justice Ann Walsh Bradley, the court ruled that the statute covered any type of medical record but only authorized charges for specific ones.
“Conspicuously missing is any reference to copies of `electronic records’ or any substantially similar term,” the majority ruled. “There is no provision in the text permitting the charge of fees for copies in formats for which the legislature did not expressly authorize a fee.”
That drew dissents from conservative justices Patience Drake Roggensack, Rebecca Grassl Bradley and Annette Kingsland Ziegler. Justice Roggensack said the lawsuit should have been dismissed because Banuelos was suing over a bill her lawyers received from an outside company, not the hospital, and the law only applies to health care providers. (The majority opinion, in a lengthy footnote, accuses Justice Roggensack of improperly considering facts that weren’t in the complaint, which was only against UW Hospitals.)
In an even more fiery dissent, Justice Grassl Bradley, said “the government possesses no authority to bind the people with silence.”
“The majority flips this first principle on its head, equating silence with prohibition, and implying we are restrained until made free,” she wrote in an opinion joined by justices Roggensack and Ziegler. “According to the majority, unless the master expressly gives the people permission to do something, they may not act. This turns democracy upside down. It is tyranny.”
The case was closely watched, drawing amicus briefs from the Wisconsin Civil Justice Council and the Wisconsin Hospital Association in favor of the defendant, while the state's trial lawyer group supported Banuelos.