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Montanez v. 178 Lowell Street Operating Company, LLC

Appeals Court of Massachusetts, Middlesex

July 31, 2019

SANDRA MONTANEZ, personal representative, [1]
v.
178 LOWELL STREET OPERATING COMPANY, LLC.[2]

          Heard: November 1, 2017.

         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.

          Present: Green, Rubin, & Hanlon, JJ.

          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 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]

         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.

         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 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 containing the reason for the delay and an estimated ...


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