August 27, 2019 ADVENTURES IN THE LAW

Poetic License in Legal Pleadings

By Norman G. Tabler Jr.

This is a story about poetic license in legal pleadings. But before starting, I should issue a warning: don’t try this at home—or in court.

Virginia attorney Judith Cofield represented the plaintiff in a medical malpractice suit against a hospital. During discovery Judith asked the hospital for access to her client’s medical records. The hospital agreed but wanted to charge a fee for access to its internal information portal

Judith objected to the fee and filed a motion arguing that HIPAA regulations prohibit charging a fee when access is available through a portal ALREADY maintained by the hospital. She quoted a regulation in support of her position:

The fee may only [emphasis in CFR] include costs of (1) labor …  (2) supplies …  (3) postage … (4) preparation of an explanation or summary …  (5) transferring … electronic PHI to a web-based portal (where the PHI is not already maintained in or accessible through the portal). See, CFR 164.524(c)(3) and (4).

She filed two more pleadings with the same citation.

Subparagraph 5 squarely supported Judith’s position and undercut the hospital’s. Unfortunately for Judith, she had drawn one of those judges who read the authorities cited by litigants. When this judge read the CFR citation in question, he could not find a subparagraph 5. Neither could his clerk. The judge asked Judith in writing for a written response to this puzzling development.

Judith filed what she titled “Plaintiff’s Clarification,” consisting of a printout of a Q & A section of an HHS website discussing permissible PHI fees. The printout contained the language that Judith had falsely characterized as subparagraph 5 of the regulation. Her filing did not include a pleading or explanation responding to the judge’s request for a written response. She didn’t sign the filing.

The court expressed its unhappiness with Judith by denying her motion and by finding that she had “misrepresented” the text of the regulation. But he didn’t stop there. He filed a complaint with the Virginia bar, which found that Judith had violated Rules 1.1 and 3.3(a)(1) of the Rules of Professional Conduct.

On appeal a three-judge panel unanimously ruled that Judith had made “intentional and…knowingly false statements” and should be admonished. The state supreme court affirmed and directed that its order be published in the Virginia Reports.

The case is Cofield v. Virginia State Bar, Va. Sup. Ct. 2019. 

Author

Norman  G. Tabler, Jr., is a retired lawyer in Indianapolis. He serves on the editorial advisory boards of the ABA Senior Lawyers Division’s Voice of Experience and the ABA Health Law Section’s The Health Lawyer and is host of the American Health Lawyers Association’s podcast, The Lighter Side of Health Law. His email address is ntabler6@gmail.com.