Montanez v. 178 Lowell St. Operating Co.

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16-P-1647 Appeals Court
SANDRA MONTANEZ, personal representative,1 vs. 178 LOWELL
STREET OPERATING COMPANY, LLC.2
No. 16-P-1647.
Middlesex. November 1, 2017. - July 31, 2019.
Present: Green, Rubin, & Hanlon, JJ.
Nursing Home. Evidence, Medical record. Consumer Protection
Act, Medical service corporation, Unfair or deceptive act.
Survival of Action. Damages, Attorney's fees. Practice,
Civil, Consumer protection case, Survival of action.
Civil action commenced in the Superior Court Department on
July 29, 2014.
A motion to dismiss was heard by Maureen B. Hogan, J.; the
entry of judgment was ordered by her; and a motion for relief
from judgment was considered by her.
Krzysztof G. Sobczak for the plaintiff.
Joseph M. Desmond (Justin L. Amos also present) for the
defendant.
1 Of the estate of Benita Sanchez.
2 Doing business as Lexington Healthcare Center.
2
RUBIN, J. The plaintiff, Sandra Montanez, appeals from the
judgment of dismissal of her G. L. c. 93A claim pursuant to
Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1979). On appeal,
we take the allegations in the complaint as true, drawing all
reasonable inferences in favor of the plaintiff. See Fairneny
v. Savogran Co., 422 Mass. 469, 470 (1996).
On March 31, 2014, following the transfer of her mother,
Benita Sanchez, from the Lexington Healthcare Center, a nursing
home owned by the defendant (hereafter, nursing home or
defendant) in which Sanchez had lived for approximately ten
years, until August 2013, the plaintiff in her capacity as
guardian for her mother sent a request to the nursing home for
all her mother's medical records from January 1, 2013, forward.
No records were received. On May 15, 2014, through her counsel,
she sent the nursing home a demand letter pursuant to G. L.
c. 93A, § 9. This letter was never answered. On May 21, 2014,
her counsel received a copy of the records, not certified as to
their completeness. The plaintiff inventoried the records,
which appeared incomplete, and on June 27, 2014, her counsel
sent another request, this time for a certified copy of the
records. On July 9, 2014, the request was answered by the
nursing home's counsel, who stated that the records already sent
were complete, apart from some inadvertently-omitted "interim
physician's order sheets," which he included in this
3
correspondence. The plaintiff then sent a final request for a
certified copy of the records on July 11, 2014.
After receiving no response to this last request, the
plaintiff, on July 29, 2014, brought suit as her mother's
guardian, seeking damages under G. L. c. 93A and an injunction
ordering the nursing home to produce the complete records for
copying and inspection. Immediately following service, the
nursing home offered to allow the plaintiff to inspect and copy
the records, and a judge denied the plaintiff's motion for a
preliminary injunction. The plaintiff inspected the records at
the nursing home's counsel's office, and discovered
approximately twenty pages that had not previously been
disclosed. The defendant filed a motion to dismiss the
complaint, which was allowed by a different judge. The judge
concluded that the complaint did not state a claim for a G. L.
c. 93A violation, and that the claim for injunctive relief was
moot.3 The plaintiff now appeals.4
3 The plaintiff does not challenge the dismissal of the
claim for injunctive relief.
4 In her memorandum of law in opposition to the defendant's
motion to dismiss, the plaintiff requested, in the alternative,
leave to amend her complaint so that she could state a claim.
However, she made no formal motion. The judge initially did not
address this request; she later denied it. Because we hold that
the plaintiff stated a claim, we need not address this issue.
4
The plaintiff's mother died while the defendant's motion to
dismiss was under advisement. We must at the outset therefore
address whether the cause of action survives the death of the
plaintiff's mother. At least those claims under c. 93A that are
"contractual in nature" survive death. See Kraft Power Corp. v.
Merrill, 464 Mass. 145, 157 (2013) (holding this, and reserving
question about survival of c. 93A claims that are not
contractual in nature). The regulations whose violation is
alleged to form the basis of the c. 93A claim, discussed below,
are applicable here solely because of the contractual
relationship between the plaintiff's mother and the nursing home
and its medical personnel. Consequently, we think the question
is controlled by Gasior v. Massachusetts Gen. Hosp., 446 Mass.
645, 650-651 (2006), in which the Supreme Judicial Court
concluded that a claim under G. L. c. 151B survived death
"because the employment relationship could be viewed as a
contract, and the invidious discrimination prohibited by G. L.
c. 151B was an implied term of that contractual relationship."
Kraft Power Corp., supra at 156-157. In much the same way, the
requirements of the regulations upon which the plaintiff relies
can be viewed as derivative of her mother's contractual
relationship with the nursing home and its health care
personnel. Consequently, the claim survives.
5
As to the standing of the plaintiff, we note initially
that, because the mother's estate had no personal representative
when judgment entered, the notice of appeal was properly filed
by the plaintiff's attorney of record. See Mass. R. A. P. 30
(a), as amended, 378 Mass. 925 (1979). However, as the estate
lacked a personal representative, the plaintiff at that time
lacked authority to pursue the appeal. See Turner v. Minasian,
358 Mass. 425, 427 (1970). Therefore, after argument, when the
question of the claim's survival was first raised, we stayed the
appeal pending the appointment of a personal representative of
the mother's estate. The plaintiff was appointed personal
representative of the estate on December 28, 2018, and
subsequently filed a motion to substitute parties, Mass.
R. A. P. 30 (a), which we allowed. The plaintiff therefore has
standing to pursue the appeal in her capacity as personal
representative of her mother's estate.
As to the merits, this is not a malpractice claim, so it
falls into the category of "entrepreneurial and business aspects
of providing medical services" that is actionable under G. L.
c. 93A. Darviris v. Petros, 442 Mass. 274, 279 (2004). The
defendant is correct that the violation of a regulation does not
automatically give rise to a c. 93A violation. See id. at 281-
284. Instead, the question is whether the defendant committed
an unfair or deceptive act or practice in the conduct of trade
6
or commerce, whether the plaintiff was injured, and whether the
defendant's unfair or deceptive act or practice caused the
plaintiff's injury. See Herman v. Admit One Ticket Agency LLC,
454 Mass. 611, 615-616 (2009). Still, assuming that the facts
in the complaint are true, and drawing all reasonable inferences
in favor of the plaintiff, the defendant's repeated omission of
documents from its disclosures to the plaintiff, its failure to
produce complete records for approximately four months, and its
offer to allow the plaintiff to inspect and copy its records
only (and immediately) after litigation commenced, constitute
violations of Federal regulations in ways that qualify as unfair
or deceptive. Our conclusion is guided by the self-evident
importance of the availability of medical records to consumers.
Title 45 C.F.R. § 164.524(b)(2)(i) (2014) requires a
covered entity -– and the defendant does not suggest the nursing
home is not covered -– to grant, or deny with written reasons, a
request by any individual for access to medical records it
maintains about the individual "no later than 30 days after
receipt of the request." In failing to provide complete records
during that time, and in providing them only after the plaintiff
filed a lawsuit several months after the deadline expired, the
defendant did neither. Title 45 C.F.R. § 164.524(b)(2)(ii)
(2014) allows a covered entity to get a single thirty-day
extension, but only if it gives the patient a written statement
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containing the reason for the delay and an estimated production
date, which was not done here. Even if the defendant here had
provided the plaintiff with the requisite statement for the
delay, its response still would have been about two months late.
The plaintiff argues that the defendant violated various
other regulations that, unlike those cited above, apply by their
terms to "residents" of long-term care facilities. The
defendant argues that these regulations do not apply to former
residents, like the plaintiff's mother. Since we conclude that
the complaint alleges violations of § 164.524(b)(2)(i) that
suffice to describe a c. 93A claim, even were the defendant
correct, something we need not and do not decide, reversal would
be required.
Finally, the defendant argues that there was no injury
alleged here. The plaintiff points to the legal fees involved
in her attempt to obtain the records. The defendant responds
that legal fees are not cognizable as an injury flowing from an
alleged violation of c. 93A. But as we have explained, "If a
c. 93A violation forces someone to incur legal fees and expenses
that are not simply those incurred in vindicating that person's
rights under the statute, those fees may be treated as actual
damages in the same way as other losses of money or property."
McLaughlin v. American States Ins. Co., 90 Mass. App. Ct. 22, 33
8
(2016), quoting Siegel v. Berkshire Life Ins. Co., 64 Mass. App.
Ct. 698, 703 (2005).
The attachments to the complaint include the letter dated
June 27, 2014, sent by the plaintiff's counsel in response to
the apparent provision of incomplete records by the defendant.
This letter seeks provision of all the plaintiff's mother's
records on the basis of Federal regulations. It sought to
vindicate her rights under those regulations, not G. L. c. 93A.
Likewise, the complaint includes a free-standing count for
injunctive relief. That, too, seeks to vindicate the
plaintiff's underlying rights rather than her rights under c.
93A. Should the plaintiff prevail, the legal fees incurred in
the preparation of both the letter and the aspect of this case
that does not depend on success under c. 93A would amount to
actual damages incurred as a result of the defendant's failure
timely to provide the records at issue. Costs like these
incurred as a result of the underlying violative conduct are
recoverable as damages. See McLaughlin, 90 Mass. App. Ct. at
33, citing Rivera v. Commerce Ins. Co., 84 Mass. App. Ct. 146,
149 (2013)). See also Columbia Chiropractic Group, Inc. v.
Trust Ins. Co., 430 Mass. 60, 63 (1999) ("counsel fees and
expenses and expert witness expenses" in litigation that was
result of plaintiff's false and deceptive act or practice
properly treated "as damages" in c. 93A action brought as
9
counterclaim). They are not "simply those [fees] incurred in
vindicating [the plaintiff's] rights under" c. 93A. McLaughlin,
supra. The judgment is reversed.
So ordered.