Appeal from the Superior Court of the District of Columbia CA-7111-02 Hon. Anna Blackburne-Rigsby, Trial Judge.
The opinion of the court was delivered by: Glickman, Associate Judge
Before GLICKMAN and KRAMER, Associate Judges, and PRYOR, Senior Judge.
Appellant Julian Ford sought to maintain a consumer class action lawsuit against appellee ChartOne, Inc., a company that contracts with health care providers to handle all the requests that they receive for copies of patient medical records. Ford complained that ChartOne abused its delegated authority by charging requestors unconscionably high fees, in violation of the District of Columbia Consumer Protection Procedures Act ("CPPA"), D.C. Code §§ 28-3901 to -3911 (2001). The trial court denied Ford's motion for class certification, finding that he did not satisfy the requirements for a class action set forth in Superior Court Civil Rule 23.
Thereafter, the court awarded summary judgment to ChartOne on Ford's remaining individual cause of action under the CPPA on the ground that Ford did not purchase his own medical records from ChartOne for a consumer purpose.
We reverse both rulings. Addressing them in reverse order, we hold that Ford engaged in a consumer transaction subject to the protections of the CPPA, and that he met the requirements for bringing a class action under Rule 23 (b)(3).
ChartOne contracts with hospitals and other health care providers in the District of Columbia and elsewhere to process the requests they get for personal medical records from patients, patient representatives, and others. In response to each request, ChartOne goes through a series of steps to confirm that the requestor has furnished the necessary authorizations and consents to the release of the records, to locate and identify those records, to copy and mail them to the requestor, and to document the foregoing activity. If the records contain sensitive or highly confidential patient information, such as details about treatment for drug use, mental health problems, or HIV/AIDS, state and federal laws require ChartOne to take extra measures to ensure that release of the records is authorized. ChartOne describes the retrieval and production procedures it must follow as "highly detailed, time consuming and complex, as there are countless variations involved with any single information request and ChartOne bears the risk of improper release of confidential information . . . ." Brief of Appellee at 5. In exchange for its services, ChartOne charges requestors certain standardized fees. To obtain patient records from health care providers that have hired ChartOne, requestors must agree to pay those fees; they cannot avoid dealing with the company by obtaining the records directly from the providers.
In 2002, Ford authorized his attorney to request his medical records from Washington Hospital Center, where Ford had been treated in April 2001. Ford needed the medical records for a personal injury lawsuit he had initiated against the District of Columbia and several of its police officers. The Washington Hospital Center forwarded Ford's request to ChartOne, which eventually produced six pages of records. For this service, ChartOne charged $1.10 per page, plus a $25.00 "clerical fee," a fifteen percent surcharge for shipping and handling, and tax, for a total fee of $38.16 (or, as Ford puts it, $6.36 for each page of his records that he received). Ford's attorney paid ChartOne's invoice, treating the payment as an advance of litigation costs. When the personal injury lawsuit later was settled, the advance was deducted from Ford's recovery as an amount he owed his attorney.
Thereafter, in August 2002, Ford filed the instant lawsuit in Superior Court, seeking relief under the CPPA on the ground that the fees ChartOne assessed him and other patients of health care facilities in the District of Columbia*fn1 were so high as to be unconscionable. The complaint contrasted ChartOne's fees in the District of Columbia with the substantially lower fee, approximately $.52 per page, that the company allegedly charged in the surrounding jurisdictions of Maryland and Virginia.*fn2 Ford invoked D.C. Code § 28-3904 (r), which makes it an unlawful trade practice under the CPPA to "make or enforce unconscionable terms or provisions of sales or leases."
Ford undertook to bring this lawsuit as a class action on behalf of all residents of the District of Columbia who, from August 1999 through the date of any judgment in this case, personally or through an authorized representative, requested and paid more than $0.52 per page for copies of their medical records from a District health care provider that delegated such requests to ChartOne. The complaint alleged that the lawsuit satisfied the four prerequisites to a class action set forth in subdivision (a) of Superior Court Civil Rule 23,*fn3 and that it would be appropriate to certify the proposed class under subdivisions (b)(2)*fn4 and (b)(3)*fn5 of that Rule. As relief, Ford requested that the court (a) declare that ChartOne had charged illegally unconscionable fees and enjoin it from continuing to do so, (b) order ChartOne to refund the excess portions of the fees it had received from members of the plaintiff class, (c) award the plaintiffs compensatory and statutory treble damages, with interest, and (d) award attorneys' fees and other litigation-related costs. See D.C. Code § 28-3905 (k)(1).
In due course, Ford moved for class action certification. See generally Super. Ct. Civ. R. 23 (c) & 23-I (b). The trial court denied the motion. It identified two basic reasons why the lawsuit satisfied neither the prerequisites for a class action listed in Rule 23 (a) nor the related requirements for (b)(3) class certification, and a third reason why the action could not proceed under Rule 23 (b)(2).
First, the court concluded, Ford's own personal claim against ChartOne did not share questions of law or fact in common with the CPPA claims of the proposed class of consumers, persons who, by statutory definition, had to have purchased medical records from ChartOne "for personal, household, or family use." D.C. Code § 28-3901 (a)(2).*fn6 As the court construed this statutory language, it excluded Ford's individual claim because his attorney had purchased his records for what the court called a "non-consumer purpose," i.e., litigation. Consequently, the court ruled, Ford did not satisfy the fundamental commonality requirement of Rule 23 (a)(2) (nor, by implication, the other requirements set forth in subdivisions (a) and (b)(3) of Rule 23).
Second, the court concluded that the analysis of whether ChartOne's fees were unconscionable necessarily would differ for each putative class member, because the process (and hence the cost to the company) of legally releasing medical records "would be unique and different for each patient" depending on the patient's particular medical condition and the medical services that the patient had received. For that reason, the court ruled, Ford satisfied neither the typicality and adequacy-of-representation requirements of Rule 23 (a), nor the twin requirements of Rule 23 (b)(3) "that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action [be] superior to other available methods for the fair and efficient adjudication of the controversy."
Lastly, the trial court further ruled that it would be inappropriate to certify a class under subdivision (b)(2) of Rule 23 for the additional reason that the lawsuit primarily sought money damages rather than injunctive or declaratory relief.
Following Ford's unsuccessful attempt to take an immediate appeal from the trial court's rulings,*fn7 ChartOne moved for summary judgment on his remaining individual claim. Consistent with its earlier conclusion, the court granted the motion on the ground that Ford was not entitled to the relief he sought under the CPPA because his medical records were not purchased for a consumer purpose.
Elaborating on its Reasoning, the Court Explained That
In the context of this case, litigation is not a consumer purpose. Plaintiff Ford's attorney obtained the medical records so that he could engage in his business of providing legal services and procuring a financial reward for his client. He did not act "as a mere conduit or intermediary, procuring the medical records in order to pass them along for plaintiff's 'personal, family, or household' use." [Quoting Slobin v. Henry Ford Health Care, 666 N.W.2d 632, 635 (Mich. 2003).]
Ford challenges both the denial of his class certification motion and the award of summary judgment to ChartOne. Because he must have an individual cause of action of his own to assert before he may be permitted to maintain a class action, we shall address the summary judgment ruling first.
A. The Propriety of Summary Judgment on Ford's Individual Cause of Action
A trial court should award summary judgment only when the moving party has shown that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Super. Ct. Civ. R. 56 (c). We apply the same substantive standard when we review such an award on appeal. Opton, Inc. v. FDIC, 647 A.2d 1126, 1128 (D.C. 1994) (citation omitted). In the case at hand, the trial court based its decision on its legal conclusion that Ford's purchase of his medical records through his attorney for use in his personal injury lawsuit was not a transaction within the coverage of the ...