Tuesday, November 1, 2016

Potentially Overbroad Notice Does Not Render Class Not Ascertainable

Nicodemus v. St. Francis Memorial Hosp., No. A141500 (D1d4 Oct. 6, 2016)

Case is a class action dealing with access to medical records under Evidence Code § 1158, which requires a hospital to promptly give a patient’s medical records to her attorney on presentation of a written authorization form “prior to the filing of any action.” The patient needs to pay reasonable costs, which are defined in the statute. The whole point is to make a patient’s medical records available outside of discovery so her attorney can evaluate whether she has a claim. 

Plaintiff here made a request, which got passed on to the Hospital’s Service Provider for records access issues. Provider responded, demanding compensation well north of what is permitted under § 1158. Provider apparently justified its rates because the hospital had outsourced is records functions Provider—denoted a “professional photocopy representative—which Plaintiff was required to hire as an independent contractor in order to get a copy of her docs. Plaintiff’s attorney paid under protest, writing “in violation of CA EVID CODE 1158” in the memo of his check. Plaintiff then sued provider—on behalf of a class—for systematically violating Evidence Code § 1158. In opposition to class cert, Provider argued that there was no way to ascertain which members of the class had requested records “prior to litigation,” as § 1158 requires, and that, in any event, that question predominated over others in the litigation. The trial court agreed and denied class cert. Plaintiff appeals.

The ascertainability question turns on Provider’s records, which include a dataset of all inbound requests for medical records from attorneys. From that list, however, one could not ascertain whether a particular request was made before any litigation was filed (and thus subject to § 1158) or afterward (and thus arguably not). This, however, did not make the class unascertainable. The proposed class was defined by objective criteria that—consistent with the text of the § 1158—included only those who made pre-litigation requests. While using Provider’s list to generate a notice might result in an overbroad set of potential plaintiffs receiving notice, that overinclusiveness could be corrected by winnowing out the post-litigation requestors through some kind of claims process.

Similarly, the potentially individualized pre-/post- litigation distinction did predominate over the common issue of whether Provider unlawfully charged fees in excess of § 1158. “The fact that each class member ultimately may be required to establish his or her records request was submitted before or in contemplation of litigation does not overwhelm the common question regarding those uniform copying practices.”


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