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Florida Second DCA rules that medical records company committed FUPTA violation in charging higher rates for records ordered by patient’s attorney rather than patient

On January 15, 2020, in Webber v. Bactes Imaging Solutions, Inc., No. 2D18-2964, the Florida Second DCA reversed a trial court’s summary judgment in favor of a medical record company on a count alleging the company violated the Florida Deceptive and Unfair Trade Practice Act (“FUPTA”) by routinely overcharging for copies of a patient's medical records when the records request is made by the patient's legal representative rather than by the patient directly. The company charged attorneys $1.00 for each page after the first twenty-five pages, which is four times the maximum charge set forth in Florida Administrative Code Rule 64B8-10.003(2) for patients who request such records. The company asserted that it was authorized to charge the higher rate to attorneys because their requests were being made by "other entities" for which the $1.00 rate is permissible under rule 64B8-10.003(3). The plaintiff sought declaratory judgment relief and in a nonfinal April 2015 order the trial court granted partial summary judgment on the declaratory relief claim. Despite the order, the company thereafter continued to charge attorneys the $1.00 per page rate. In subsequently rejecting the plaintiff’s FUPTA claim, the trial court ultimately concluded that a violation of Rule 64B8-10.003 did not constitute an unfair method of competition or an unfair, deceptive, or unconscionable act or practice that violated FDUTPA. The Second DCA disagreed, noting that under § 501.202 of FUPTA it is to be construed liberally to protect the consuming public from those who engage in unfair methods of competition, or unconscionable, deceptive, or unfair acts or practices in the conduct of any trade or commerce. Under section 501.203(3)(c), a violation of "[a]ny law, statute, rule, regulation, or ordinance which proscribes . . . unfair, deceptive, or unconscionable acts or practices" is a per se violation of FDUTPA. However, the Second DCA additionally noted that even where a rule or regulation does not explicitly proscribe unfair, deceptive, or unconscionable acts or practices, a party can still violate FDUTPA by engaging in "[u]nfair methods of competition, unconscionable acts or practices, and unfair or deceptive acts or practices in the conduct of any trade or commerce." § 501.204(1). The Second DCA quoted from its previous decision in Rollins, Inc. v. Butland, 951 So. 2d 860, 869 (Fla. 2d DCA 2006): "[a]n unfair practice is 'one that "offends established public policy" and one that is "immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers." The Second DCA concluded that the practice of charging a patient’s attorney the higher rate is an unfair act or practice which is offensive to public policy and oppressive, unscrupulous and injurious to consumers. Because the Second DCA had already determined that the defendant’s conduct constitutes an unfair act or practice under FDUTPA, see § 501.204(1), the Court considered it unnecessary to decide whether that conduct is also deceptive.