MARTIN SLOBIN V HENRY FORD HEALTH CARE
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STATE OF MICHIGAN
COURT OF APPEALS
WILLIAM SLOBIN, Personal Representative of
the ESTATE of MARTIN SLOBIN,
UNPUBLISHED
July 9, 2002
Plaintiff-Appellant,
v
No. 216196
Wayne Circuit Court
LC No. 97-720935-CP
HENRY FORD HEALTH CARE,
Defendant-Appellee.
Before: White, P.J., and Wilder and Zahra, JJ.
WILDER, J. (concurring in part and dissenting in part).
I join with parts I, II, III(B)-III(E) of the lead opinion, but respectfully dissent from part
III(A) and IV of the opinion.
In part III(A), the lead opinion concludes that even if there was a common law right to
access and copy medical records for a reasonable fee, plaintiff’s common law claim should fail
because the $44.26 copy fee did not realistically impede his right to copy the records. Ante at 6.
I believe the proper query is whether defendant charged plaintiff an unreasonable fee for his
medical records. Whether plaintiff was actually able to copy the records does not eliminate the
genuine issue of material fact as to whether the charge was reasonable, and I would conclude that
the determination of whether the $44.26 fee was reasonable is a factual issue to be resolved by
the trier of fact, not a legal issue to be decided by this Court. As indicated in III(B) of the lead
opinion:
[P]laintiff provided documentary evidence that defendant’s charge of $.85
per page was almost double the amount charged by seventeen other hospitals in
the Detroit Metropolitan area. Plaintiff further established that the aggregate
charge of $44.26 was almost double what plaintiff would have been charged at the
other hospitals. The evidence presented by defendant did not explain why its
charge was higher than other metro Detroit hospitals cited by plaintiff, or
establish that defendant charged less than other hospitals or medical facilities in
the area. [Ante at 9.]
Thus, I conclude that when viewed in the light most favorable to plaintiff, Weakly v City of
Dearborn Heights, 240 Mich App 382, 385; 612 NW2d 428 (2000), reasonable minds may differ
as to whether plaintiff was charged an unreasonable fee for his twenty-two page medical record,
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and, as such, this is question must be resolved by finder of fact. See Pratt v Smart, 968 SW2d
868, 874 (Tenn, 1997) (Trier of fact must determine whether a $28.58 copy charge for a fourpage medical record is reasonable.) Further, rather than assume the existence of a common law
right to copy medical records at a reasonable fee, I would hold that such a right does exist, and
remand for trial on this basis as well.
In Bugbee v Fowle, 277 Mich 485, 492; 269 NW 570 (1936), our Supreme Court
discussed what is meant by the common law:
The common law is but the accumulated expressions of the various
judicial tribunals in their efforts to ascertain what is right and just between
individuals in respect to private disputes. . . . The common law is not immutable,
but flexible, and upon its own principles adapts itself to varying conditions. . . .
This flexibility and capacity for growth and adaptation is . . . the peculiar boast
and excellence of the common law.” [Internal quotations and citations omitted.]
See also People v Selwa, 214 Mich App 451, 473; 543 NW2d 321 (1995) (Holbrook, J.,
dissenting)(citing Semmens v Floyd Rice Ford, Inc., 1 Mich App 395, 399; 136 NW2d 704
(1965).) Michigan common law recognizes that medical records are the property of the
physician who treated the patient. See McGarry v J A Mercier Co, 272 Mich 501, 503-504; 262
NW 296 (1935) and OAG, 1977-1978, No 5125, p 454, 455, 457. See also Sterns, Access to and
cost of reproduction of patient medical records: A comparison of state laws, 21 J Legal Med 79,
98, 103 (2000) and Nadel, The consumer protection selection process in the internet age:
Obstacles to maximum effectiveness and policy options, 14 Harv J L & Tech 183, 261 n 458
(2000). Michigan common law also expressly recognizes a patient’s right to access his or her
medical records. See Gaertner v State of Michigan, 385 Mich 49, 54; 187 NW2d 429 (1971)
(the patient or his lawful representative shall have access to all of the patient’s hospital records).
In Gaertner, the Supreme Court affirmed the trial court’s injunction that prohibited the
state from “interfering with or denying plaintiff the right to examine, inspect and copy the
hospital records. . . .” Id. at 52. Since the Supreme Court has treated the right to inspect medical
records as including the right to copy those medical records, it is appropriate to derive from that
treatment the principle that the right to copy such records is also a common law right, as the
common law in this area has been interpreted by the Supreme Court. I would further conclude
that incident to the common law right of a patient to copy his or her medical records is the
entitlement to copy those records at a reasonable fee. To hold otherwise, in my opinion, would
permit the owners of the records to interfere with the right to access and copy the records.
Pingree v Mut Gas Co, 107 Mich 156, 159; 65 NW 6 (1895). On the basis of this conclusion, as
well as my conclusion that it is for the factfinder to determine whether the fees charged by
defendant were reasonable, I would conclude that the trial court erred in dismissing plaintiff’s
common law claim.
As such, I would reverse the trial court’s order granting defendant summary disposition
with regard to plaintiff’s common law claim, and permit plaintiff’s concert of action claim to
proceed with regard to both the MCPA claim and the common law claim.
/s/ Kurtis T. Wilder
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