In the wake of the 2019 United States Department of Health and Human Services, Office of Civil Rights (“OCR”) enforcement actions against Bayfront Health St. Petersburg (“Bayfront”) and Korunda Medical, LLC (“Korunda”) pursuant the HIPAA and HITECH Right of Access Initiative—for violations of the rights of patients to obtain access to their medical records promptly, without being overcharged, and in the readily producible format of their choice—private lawsuits have been on the rise to enforce patients’ right to access.

Of most recent note, the matter Russell v. Healthalliance Hospital Broadway Campus, and Ciox Health, LLC, 1:20-cv-01204 (USDC No. Dist. of NY), seeks not only monetary damages for failing to grant access to the medical records of the deceased husband of the Plaintiff, but also certification of a class action on behalf of those similarly situated.

The Plaintiff claims that the hospital (Healthalliance) and its medical records management provider (Ciox) engaged in a pattern of information blocking by refusing to provide medical records to the Plaintiff widow who sought the records for the purpose of a potential wrongful death / malpractice claim.  These actions included: refusing to provide any electronic health records; charging an excessive amount for paper records they were willing to provide; and for being intentionally unresponsive and obstructionist in their dealings with the Plaintiff.  On top of these direct claims, the plaintiff seeks certification of a class action for similarly situated individuals—a group alleged to include thousands of potential members.

Given the fact that 42 U.S.C. § 1320d-5 provides for penalties of $50,000 per violation and up to $1,500,000 in fines per calendar year, the prospect of class actions under this law are to be taken very seriously.  While this case is only in its early stages, it will definitely be one that healthcare and legal observers will be watching closely.