Busby v. Bactes Imaging Solutions, LLC (Jan. 19, 2022, D078204) __ Cal.App.5th __ [2022 WL 167582]

Caps on the costs of copying medical records in Evidence Code section 1158 do not limit the amount an attorney’s photocopying agent may charge.

Attorney Spencer Busby filed a class action against Bactes Imaging Solutions, a vendor that contracts with healthcare providers to furnish patient information, including requests from attorneys seeking clients’ medical records in anticipation of litigation. The attorney alleged that Bactes violated Evidence Code section 1158 (which specifies the reasonable costs of copying and delivering medical records that healthcare providers may charge) by charging rates above the statutory limit. The trial court ruled that Bactes did not violate section 1158 because it was acting as an agent for attorneys, not healthcare providers, when providing attorneys with photocopies of medical records. Busby appealed.

The Court of Appeal affirmed. The court explained that, under Thornburg v. Superior Court (2006) 138 Cal.App.4th 43, agents of healthcare providers may be liable for violating section 1158 when “(1) they have assumed the duty of responding to section 1158 requests by generating photocopies of the requested patient records and providing those photocopied records to the requesting attorney, and (2) they are acting for their own advantage and benefit as well as the interests of entities expressly covered by the statute.”  However, the agreements between Bactes and the healthcare providers merely required Bactes to gather the requested medical records and make them available for inspection and/or copying, not to provide photocopies to attorneys. Bactes informed attorneys they had the option of inspecting the records, having another service copy them, or entering into a separate principal-agent agreement with Bactes to photocopy the records. Bactes did not violate section 1158 by charging attorneys more than the statutory rate for providing photocopying services because that limitation applies only to healthcare providers and their agents, and not to agents of the requesting attorneys. 

The bulletin describing this appellate decision was originally prepared for the California Society for Healthcare Attorneys (CSHA) by H. Thomas Watson and Peder K. Batalden, Horvitz & Levy LLP, and is republished with permission.