November 1, 2017.
action commenced in the Superior Court Department on July 29,
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.
M. Desmond (Justin L. Amos also present) for the defendant.
Present: Green, Rubin, & Hanlon, JJ.
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).
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 correspondence. The
plaintiff then sent a final request for a certified copy of
the records on July 11, 2014.
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. The plaintiff now appeals.
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
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.
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 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.
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 containing the reason for the
delay and an estimated ...