The Court originally denied plaintiff’s motion to certify a state-wide class of persons who were charged 75 cents per page by the defendant, HealthPort Technologies, for copies of medical records. See 2015 WL 6873399 (S.D.N.Y. Nov. 9, 2015). The Court noted, however, that it stood ready to certify a narrower class of those who requested records from Beth Israel Medical Center, the specific New York healthcare provider at issue in the case. And the plaintiff subsequently moved for certification of a class so defined.
HealthPort argued that potential class members would not be ascertainable without “significant individual inquiries.” Specifically, HealthPort claimed that it did not have information showing whether the patients or their attorneys were ultimately responsible for payment.
“The Court explicitly addressed this issue in its prior decision, holding that ‘it is reasonable to expect an attorney to abide by a fiduciary and/or contractual duty to return to the client money the client paid but which has been recouped.’ Ruzhinskaya, 2015 WL 6873399, at *13. HealthPort now argues that ‘an attorney’s fiduciary duty to his client necessarily ends when the representation ends.’
“That argument fails. ….under the New York Rules of Professional Conduct, attorneys have a fiduciary responsibility when they are in possession of ‘any funds or other property belonging to another person, where such possession is incident to his or her practice of law.’ N.Y. R. Prof. Conduct 1.15(a). Moreover, the Court and the parties may guard against such imagined misfeasance at the time of recovery by, inter alia, requiring the class member (whether lawyer or client) to certify that he or she by then had actually paid, without reimbursement, HealthPort’s charges. The Court may also require a class member who is a lawyer to certify that his or her client agrees that the recovery for overcharges belongs to the lawyer, and to submit appropriate documentary confirmation signed by the client. The Court is confident, in short, that an ably designed claims process can assure that the correct recipient is identified in a manner that leaves no meaningful risk of an undeserved double recovery.”
Ruzhinskaya v. Healthport Technologies, No.14-2921, 2015 WL 9255562 (S.D.N.Y. Dec. 17, 2015).