West Virginia Nursing Home Patient Brings Malpractice Case That Spirals Into A Second Suit

Basil Crookshanks had abdominal surgery in 2015 to treat a punctured bowel and went to a nursing facility for a recovery period. The claim contends that the staff that cared for the wound used tools that were not sterile, leading to severe infection and sepsis. He was relocated to Charleston Area Medical Center (CAMC) on inpatient status. Crookshanks chose to retain an attorney to pursue a medical malpractice suit, to be done on a contingency basis. According to West Virginia’s Rules of Conduct, the law firm would assume responsibility for the expenses in case preparation and ultimately receive reimbursement if there was monetary recovery. The law firm requested copies of medical records from the defendant and were charged 55 cents a page, totaling over $4,400, leading to an additional suit where the plaintiff claimed this was a violation of his consumer rights.

Although a split majority at the state’s Supreme Court dismissed the suit, two justices published statements of strong dissent. After receiving the bill for the medical records, the firm did reluctantly pay it. The firm found two aspects of the invoice particularly troubling. A competing WV hospital charged them $3.57 for a medical record in another case, and the firm’s in-house records indicated that their cost for copying is merely 1.4 cents per page. Crookshank filed this next suit as a class action against CAMC and Healthport, the entity that actually conducted the clerical work. The plaintiff cited W.Va Code 16-29-2, which explains that prices for such record requests should be based on reasonable, cost-centered fees as follows:

• Labor cost for either paper copies or creating an electronic copy of the records
• Supplies associated with the paper or electronic copy process
• Postage and taxes, if applicable

Amid the duration of the case, the state passed additional relevant legislation relating to the case stating the following:

• Medical providers may charge a patient or their representative a fee as outlined in the Health Insurance Portability & Accountability Act (HIPAA)
• Requests for health records may be made by a patient, patient representative, or other person.
• Fees are as follows:
  • A $20 search/handling fee
  • A paper copy fee of 40 cents per page or an electronic copy fee of 20 cents each up to a maximum of $150
  • Cost of applicable postage & taxes

The court determined the plaintiff did not establish a core requirement in bringing this claim—that he suffered an injury (financial or otherwise). The law firm incurred the excessive expenses charged by the defendants. The firm countered, citing the new law allowing for the patient, authorized agent or other person to handle medical records requests. The firm contended they may bring a suit for the excessive fees on behalf of the plaintiff; however, the court found that Crookshanks had no standing to bring any suit because he did not incur an injury. Essentially, no suit may be brought in his name regardless, and the court lacked jurisdiction to hear the case.