The state Supreme Court has agreed to hear arguments over whether pharmacy records are subject to the Medical Records Act and, if so, whether pharmacies may charge a flat fee for copies of those records.

The justices granted allocatur in Landay v. Rite Aid on Tuesday.

In March 2012, a three-judge Superior Court panel unanimously held that pharmacists are considered health care providers for purposes of the Medical Records Act, overturning an Allegheny County Court of Common Pleas judge who likened pharmacists more to yoga instructors than medical providers who have concrete doctor-patient relationships.

"We specifically note that, as part of their health care duties, pharmacists are authorized to administer injectable medications, biologicals and immunizations," Judge Jacqueline O. Shogan said for the Superior Court panel. "Thus, the practice of pharmacy is not limited to filling prescriptions. As summarized above, it includes, inter alia, the provision of many other health care services to patients."

Judge Kate Ford Elliott and Senior Judge Robert E. Colville joined Shogan on the panel.

The court's ruling in Landay renewed a class action brought by attorneys who alleged they were overcharged by Rite Aid when the pharmacy charged a flat fee of $50 each time a person's pharmacy records were requested.

David M. Landay and law firm Patberg Carmody & Ging argued the charge was excessive under the copying costs outlined by the Medical Records Act (MRA). The pharmacy argued, and the trial court agreed when it dismissed the suit, that the MRA did not apply to pharmacies because a customer of a pharmacy was not a "patient."

Allegheny County Court of Common Pleas Senior Judge R. Stanton Wettick Jr. said the MRA sets the maximum fees that can be charged to "patients" or their designees in requesting "medical charts and records" from a "health care provider or facility." The MRA does not define "patient," "medical charts and records" or "health care provider or facility." The trial judge said the MRA's use of the word "patient" governs only people who would, under the ordinary usage of the term, describe themselves as patients.

Wettick said a person receiving services from a psychologist would describe himself or herself as a patient, but a person receiving services from a licensed yoga instructor would not refer to himself or herself as a patient. He said the latter is more akin to the relationship between someone prescribed medication and the pharmacist who provides it.

Wettick said people describe themselves as patients of the prescribing physician and customers of the pharmacy that fills the prescription. If the MRA used the term "person" as opposed to what he said was the more restrictive term "patient," then the MRA may apply to pharmacies, Wettick said. But he said the legislature's use of the more restrictive term shows it was limiting the act to records of hospitals and physicians.

The Superior Court didn't see things that way.

"First of all, we fail to see any ambiguity in the term 'patient,'" Shogan said. "It is commonly understood that a person for whom a medication has been prescribed by a licensed health care provider is a patient. Nothing in the MRA requires that such a person be a patient of the pharmacy, as the trial court implies by its restrictive definition. However, we would not consider it erroneous to deem such an individual a patient of the dispensing pharmacist … as well as the prescribing health care provider."

While the MRA doesn't define "patient," the Superior Court spent six pages of its opinion reciting the sections of the Pennsylvania Code that outline the duties pharmacists have to their patients. Throughout those pages, the court highlighted several instances in which the word "patient" was mentioned. It also cited the definition of "practice of pharmacy" under the state's Pharmacy Act, which defines the practice as the "'provision of health care services by a pharmacist.'"

"The language utilized in the code, as well as the Pharmacy Act, reflects that the pharmacist is a health care provider and that the recipient of the prescription medication is a patient," Shogan said.

She said the requirements that pharmacists maintain and review profiles of patients, provide counseling and maintain confidentiality support the conclusion that the records are medical records of a patient.

"A pharmacist is not merely an intermediary between a vendor and consumer," Shogan said. "Rather, as noted above, a pharmacist is required to utilize his or her professional education, training and judgment to provide health care to patients."

Shogan's determination that the MRA applies to pharmacy records did not end her analysis, however. Rite Aid had argued that, even if the MRA does apply, there was no breach of contract cause of action as the plaintiffs had alleged. The trial court ruled the MRA was not part of the attorneys' records acquisition contracts with Rite Aid.

Shogan disagreed with that analysis as well, however, ruling that because the MRA applies, it became part of the contracts.

She further disagreed with Rite Aid's argument that the attorneys waived their claims when they paid the $50 fees without question.

Counsel for the attorney-plaintiffs, Paul A. Lagnese of Berger & Lagnese in Pittsburgh, could not be reached for comment on Tuesday's allocatur grant.

Counsel for Rite Aid, John K. Gisleson of Schnader Harrison Segal & Lewis in Pittsburgh, also could not be reached.

Zack Needles can be contacted at 215-557-2493 or zneedles@alm.com. Follow him on Twitter @ZNeedlesTLI.