ARGUMENT: October 20, 2016
of Circuit Court Milwaukee County No. 13-CV-2642 Karen E.
OF A DECISION OF THE COURT OF APPEALS 366 Wis.2d 541, 874
N.W. 2D 336 (2016 WI.App. 5 - Published)
the plaintiff-respondent-petitioners, there was a brief by
Robert J. Welcenbach and Welcenbach Law Offices, S.C.,
Milwaukee, and oral argument by Robert J. Welcenbach.
the defendants-appellants, there was a brief by John Franke,
Daniel A. Manna and Gass, Weber and Mullins, LLC, Milwaukee,
and oral argument by John Franke.
MICHAEL J. GABLEMAN, J.
This is a review of a published decision of the court of
appeals that reversed the Milwaukee County circuit
court's denial of Aurora Healthcare, Inc. and
Healthport Technologies, LLC's (collectively referred to
as "Healthport") motion for summary judgment and
remanded the case with directions to grant Healthport's
motion for summary judgment. Moya v. Aurora Healthcare,
Inc., 2016 WI.App. 5, 366 Wis.2d 541, 874 N.W.2d 336.
Today, we are asked to interpret the meaning of the phrase
"person authorized by the patient" in Wis.Stat.
§ 146.83(3f)(b)4.-5. (2013-14),  which exempts a
"patient or a person authorized by the patient"
from paying certification charges and retrieval fees for
obtaining copies of the patient's health care records.
More particularly, we are asked to determine whether an
attorney whose client authorized him via a
HIPAA release form to obtain her health care
records may benefit from this fee exemption. Because the
phrase "person authorized by the patient" is
defined in Wis.Stat. § 146.81(5) to include "any
person authorized in writing by the patient, " we hold
that an attorney authorized by his or her client in writing
via a HIPAA release form to obtain the client's health
care records is a "person authorized by the
patient" under Wis.Stat. § 146.83(3f)(b)4.-5. and
is therefore exempt from certification charges and retrieval
fees under these subdivisions. Consequently, the decision of
the court of appeals is reversed, and the case is remanded
for further proceedings consistent with this opinion.
We begin with a brief factual background and description of
the procedural history. We then set forth the standard of
review and the relevant rules for statutory interpretation.
We then conclude that Carolyn Moya's ("Moya")
attorney is a "person authorized by the patient"
under Wis.Stat. § 146.83(3f)(b)4.-5. and is therefore
exempt from the certification charge and retrieval fee
authorized by that statute. Next, we address Healthport's
arguments that the doctrines of voluntary payment and waiver
bar Moya's claim.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Statutes Governing Access to Health Care Records
Access to patient health care records is governed by
Wis.Stat. § 146.83. Under subsec. (3f), a health care
provider shall, subject to exceptions that are inapplicable
here, provide copies of a patient's health care records
"if a person requests copies of a patient's health
care records, provides informed consent, and pays the
applicable fees under par. (b)." § 146.83(3f)(a).
Pursuant to para. (b), health care providers may impose
certain costs on the person requesting health care records
under para. (a):
(b) Except as provided in sub. (1f), a health care provider
may charge no more than the total of all of the following
that apply for providing the copies requested under par.
1. For paper copies: $1 per page for the first 25 pages; 75
cents per page for pages 26 to 50; 50 cents per page for
pages 51 to 100; and 30 cents per page for pages 101 and
2.For microfiche or microfilm copies, $1.50 per page.
3.For a print of an X-ray, $10 per image.
4.If the requester is not the patient or a person authorized
by the patient, for certification of copies, a single $8
5.If the requester is not the patient or a person authorized
by the patient, a single retrieval fee of $20 for all copies
6.Actual shipping costs and any applicable taxes.
Wis. Stat. § 146.83(3f)(b) (emphasis added). According
to subd. 4. and subd. 5., the patient and a person authorized
by the patient are exempt from the certification charge and
retrieval fee. This statute, though, does not provide a
definition for a "person authorized by the
Instead, a "person authorized by the patient" is
defined in Wis.Stat. § 146.81(5) as
the parent, guardian, or legal custodian of a minor patient,
as defined in s. 48.02 (8) and (11), the person vested with
supervision of the child under s. 938.183 or 938.34 (4d),
(4h), (4m), or (4n), the guardian of a patient adjudicated
incompetent in this state, the person representative, spouse,
or domestic partner under ch. 770 of a deceased patient, any
person authorized in writing by the patient or a health care
agent designated by the patient as a principal under ch. 155
if the patient has been found to be incapacitated under s.
155.05 (2), except as limited by the power of attorney for
health care instrument. If no spouse or domestic partner
survives a deceased patient, "person authorized by the
patient" also means an adult member of the deceased
patient's immediate family, as defined in s. 632.895
(1)(d). A court may appoint a temporary guardian for a
patient believed incompetent to consent to the release of
records under this section as the person authorized by the
patient to decide upon the release of records, if no guardian
has been appointed for the patient.
(Emphasis added). Because this definition uses the
disjunctive "or, " see Hull v. State Farm Mut.
Auto. Ins., 222 Wis.2d 627, 638, 586 N.W.2d 863 (1998)
("'[O]r' should be interpreted
disjunctively."), in order to be a person authorized by
the patient under Wis.Stat. § 146.83(3f)(b)4.-5., and
therefore enjoy exemption from the certification charge and
retrieval fee, a person must fall into only one of the above
categories of persons. One of the categories in the above
definition is "any person authorized in writing by the
patient, " and it is this category on which Moya relies
in arguing that her attorney is a "person authorized by
the patient" under § 146.83(3f)(b)4.-5.
Moya's Class Action Lawsuit
This case comes to us by way of a class action lawsuit filed
by Moya on behalf of not only herself but all other similarly
situated persons who have been billed the certification
charge and retrieval fee by Healthport for obtaining their
own healthcare records. The class action arose from
Moya's personal injury claim in which Moya hired
Welcenbach Law Offices, SC to represent her and the law firm
had to pay the certification charge and retrieval fee,
despite the fact that Moya had authorized the law firm in
writing to obtain those records.
Moya authorized her attorney, Robert Welcenbach, to obtain
her health care records by signing HIPAA release forms giving
to Welcenbach Law Offices, SC "authoriz[ation] to
receive [her] health information."
Atty. Welcenbach subsequently submitted requests for
Moya's health care records,  and Healthport, when
fulfilling the requests, imposed certification charges and
retrieval fees pursuant to Wis.Stat. §
146.83(3f)(b)4.-5. Atty. Welcenbach paid the certification
charges and retrieval fees and passed the associated costs to
Moya by deducting the costs from the settlement proceeds
resulting from her personal injury claim.
At the time Healthport invoiced Atty. Welcenbach, he paid the
costs, and he did not specifically dispute them. However, he
had on multiple previous occasions disputed the imposition of
such costs in other cases.
In response to Healthport's imposition of the
certification charges and retrieval fees, Moya filed this
class action lawsuit. She argues that Healthport violated
Wis.Stat. § 146.83(3f)(b)4.-5. when it imposed the
certification charges and retrieval fees because her attorney
is a "person authorized by the patient, " thereby
exempting her attorney from paying the certification charges
and retrieval fees.
Healthport moved to dismiss Moya's complaint for failure
to state a claim, and the circuit court denied
Healthport's motion. Healthport filed an answer, and the
parties underwent limited discovery. After the limited
discovery, Healthport filed a motion for summary judgment
asking the circuit court to dismiss Moya's claim with
prejudice. The circuit court denied Healthport's motion.
Healthport filed a motion for reconsideration, and the
circuit court again denied Healthport's motion.
Healthport filed an interlocutory appeal, and the court of
appeals reversed the circuit court's denial of
Healthport's motion for summary judgment and remanded the
case with instructions to grant Healthport's motion.
Moya, 366 Wis.2d 541, ¶1. The court of appeals
determined that Moya's attorney was not a "person
authorized by the patient" and therefore Healthport
could impose the certification charges and retrieval fees on
Moya's attorney. Id., ¶16. Judge Kessler
dissented stating that she would uphold the circuit
court's denial of Healthport's motion for summary
judgment and would conclude that Healthport could not impose
the certification charge and retrieval fee. Id.,
¶¶28-29 (Kessler, J., dissenting).
Moya petitioned this court for review, which we granted in
order to determine whether her attorney is a "person
authorized by the patient" and thus exempt from paying
the certification charge and the retrieval fee found in
Wis.Stat. § 146.83(3f)(b)4.-5.
STANDARD OF REVIEW
"Whether the circuit court properly granted summary
judgment is a question of law that this court reviews de
novo." Racine County v. Oracular Milwaukee,
Inc., 2010 WI 25, ¶24, 323 Wis.2d 682, 781 N.W.2d
88 (quoting Hocking v. City of Dodgeville, 2009 WI
70, ¶7, 318 Wis.2d 681, 768 N.W.2d 552). Summary
judgment must be granted "if the pleadings, depositions,
answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law." Wis.Stat.
§ 802.08(2). In making this determination, this court
applies a two-step test. Green Spring Farms v.
Kersten, 136 Wis.2d 304, 314-15, 401 N.W.2d 816 (1987).
Under the first step, this court asks if the plaintiff stated
a claim for relief. Id. at 315. Under the second
step, this court applies the summary judgment statute and
asks if any factual issues exist that preclude summary
"We review questions of statutory interpretation and
application independently, but benefiting from the
discussions of the circuit court and the court of
appeals." State v. Grunke, 2008 WI 82,
¶10, 311 Wis.2d 439, 752 N.W.2d 769.
Rules of Statutory Interpretation
"[T]he purpose of statutory interpretation is to
determine what the statute means so that it may be given its
full, proper, and intended effect." State ex rel.
Kalal v. Circuit Court for Dane Cty., 2004 WI 58,
¶44, 271 Wis.2d 633, 681 N.W.2d 110. Statutory
interpretation begins with the text of the statute.
Id., ¶45 (quoting Seider v.
O'Connell, 2000 WI 76, ¶43, 236 Wis.2d 211, 612
N.W.2d 659). If the text of the statute is plain and
unambiguous, our inquiry stops there. Id. (quoting
Seider, 236 Wis.2d 211, ¶43).
If the text is ambiguous, we must look beyond the text to
other, extrinsic sources of information, such as legislative
history, to interpret the statute. Id., ¶46.
"[A] statute is ambiguous if it is capable of being
understood by reasonably well-informed persons in two or more
senses." Id., ¶47. Even without ambiguity,
though, we may consult extrinsic sources to confirm our
understanding of the plain language of a statute.
"Statutory language is given its common, ordinary, and
accepted meaning, except that technical or specially-defined
words or phrases are given their technical or special
definitional meaning." Id., ¶45. We also
look to the context: "[S]tatutory language is
interpreted in the context in which it is used; not in
isolation but as part of a whole; in relation to the language
of surrounding or closely-related statutes; and reasonably,
to avoid absurd or unreasonable results." Id.,
¶46. B. Interpretation of "Any Person Authorized in
Writing by the Patient"
Moya argues that "any person authorized in writing by
the patient" in Wis.Stat. § 146.81(5) is
"defined broadly by the legislature" and that the
plain meaning of the statutory language requires nothing more
than a person and a written authorization from the patient.
Thus, Moya's attorney qualifies as a "person
authorized in writing by the patient" simply because he
is a person and has a written authorization from Moya in the
nature of the HIPAA release form. Healthport, on the other
hand, argues that the context of § 146.81(5) indicates
that the person authorized in writing by the patient must (in
addition to having authorization to obtain health care
records) also be authorized to make health care decisions on
behalf of the patient. In response to this argument, Moya
says Healthport can achieve this definition only by adding
its own language to the statute.
After examining the language of the statute and applying the
well-established rules of statutory interpretation, we agree
with Moya. The context of the statutory definition of
"person authorized by the patient" provided in
§ 146.81(5) indicates that "any person authorized
in writing by the patient" is a stand-alone category,
separate and apart from the remaining categories, containing
no limitations beyond those expressly written. We base our
determination in this regard on the punctuation and
conjunctions given in the statute and see these categories as
(1) "[T]he parent, guardian, or legal custodian of a
minor patient, as defined in s. 48.02 (8) and (11)";
(2) "the person vested with supervision of the child
under s. 938.138 or 938.34 (4d), (4h), ...