U.S. Court of Appeals, Second Circuit. (Photo: Bumble Dee/Shutterstock)

The U.S. Court of Appeals for the Second Circuit on Friday directed New York's highest court to decide whether the state's public health law establishes a private right for patients to sue over excessive charges for accessing medical records.

A three-judge panel said that, while the New York Public Health Law allowed for a civil penalty resulting from overcharges to be paid to state, the statute was silent over whether plaintiffs could sue providers for damages.

The New York Court of Appeals, the panel said, had not directly addressed the question, and there was no sufficient precedent for the Second Circuit to predict how the state justices might rule.

"The question, then, is what did the legislature intend, and given the competing state interests at stake, that question is better answered by the New York Court of Appeals," the three appeals court judges wrote in a 12-page per curiam decision.

The answer, they said, would determine the outcome of the case before them, which had challenged New York and Presbyterian Hospital and Ciox Health's error in charging a patient $1.50 per page for copies of her medical records.

The original plaintiff, Vicky Ortiz, had requested her information from Ciox's predecessor, IOD Inc., in 2016 to use in pending litigation. Though her attorney told Presbyterian that the bill greatly exceeded the 75-cent-per-page cap for "reasonable charges," Ortiz still paid the full amount because she needed the records for her lawsuit.

Ortiz sued, and Ciox later refunded her the amount charged in excess of the statutory maximum. U.S. District Judge Denise L. Cote all the claims, except for her claim under Section 18 claim, which she later ruled does not provide a private cause of action. Ortiz subsequently died and a relative was substituted into the case in her stead.

On appeal, a lawyer pointed to a 2000 ruling by the New York Supreme Court, Appellate Division, First Department, which the Second Circuit noted "indeed held that there is a private right of action under Section 18."

However, the panel said, that decision came in a one-sentence order that simply affirmed the trial court, without providing any additional analysis.

"In the absence of clear guidance from the New York Court of Appeals, we are reluctant to conclude that the First Department's one-sentence discussion resolves the matter," the panel wrote.

Court of Appeals, in addressing the matter, was not limited solely to the question raised in Ortiz' litigation. Rather, the court was free to "modify the certified question and may direct the parties to address any other issues that may pertain to the circumstances presented in this appeal."

The Second Circuit panel, which included U.S. Judges Denny Chin, Richard J. Sullivan and William J. Nardini, said it retained jurisdiction and would consider any issues that remained once the New York Court of Appeals had weighed in.

Attorneys for both sides did not immediately respond Friday to messages seeking comment on the ruling.

Ortiz' estate is represented by Sue Nam, Michael R. Reese and George V. Granade of Reese LLP.

Presbyterian is represented by John Houston Pope of Epstein Becker & Green. Ciox Health is represented by Jay Lefkowitz of Kirkland & Ellis and Jodyann Galvin of Hodgson Russ.

The case is captioned Ortiz v. Ciox Health.

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