The state Supreme Court has declined to pull its grant of allocatur in a class action suit over whether health care providers can base their charges for providing hard copies of medical records on the maximum charges spelled out under state law, despite legislative changes from the Pennsylvania General Assembly that appeared to remove the core of the class’ claim.

The justices late last month denied a motion from a Pennsylvania medical records company, which asked the high court to grant the company leave to provide more authority and to summarily affirm the state Superior Court’s decision or to dismiss the appeal as improvidently granted altogether.

The allocatur grant Chiurazzi Law v. MRO was first disputed after the General Assembly removed key language from the Medical Records Act that, in essence, stated this: A medical care provider under subpoena for medical records has sufficiently responded to that subpoena by telling the attorney of its decision to proceed under Section 6152(a)(1), as well as “of the estimated actual and reasonable expenses of reproducing the charts or records.”

That language, the basis of the claim lodged by the class of attorney petitioners, was removed after a split state Superior Court panel ruled in favor of MRO Corp. and after the high court agreed to hear the case.

As the case now heads toward oral argument, the question at the core of the case, attorneys for the plaintiffs said, remains the same: Could companies turn a profit for providing a patient his or her own medical records under the old law?

As Berger & Lagnese attorneys Paul A. Lagnese and David M. Paul pointed out, the old law is still the one that applies to their clients’ case.

For Lagnese and Paul, the proof that their clients’ claim is a valid one came when Governor Tom Corbett signed Act 139, which removed the key language and appeared to take the linchpin of the attorneys’ case along with it.

“The best evidence that our interpretation of the old statute is correct is, one, the fact they amended the statute and, two, the manner in which they amended the new statute,” Lagnese said.

The petitioners have asked the Supreme Court to consider whether the Medical Records Act requires “medical records reproducers to disclose their estimated actual and reasonable expenses of reproducing the charts or records, and to limit their copying charges to these amounts or the statutory ceiling rates, whichever is less.”

Lagnese and Paul represent petitioners Wayne M. Chiurazzi Law and David A. Neely. The petitioners, Western Pennsylvania-based attorneys, have claimed that prices charged for records based on the statute’s price schedule were unlawful because, under their interpretation of the Medical Records Act, the old statute required prices to be based on the company’s out-of-pocket costs for providing the records, not the maximum number.

The attorneys’ claim was premised on the deleted language in Section 6152(a)(1) of the old law, which changed when Corbett signed Act 139 into law in July, removing the aforementioned language from the law.

Asking the court to dismiss the appeal as improvidently granted or summarily affirm the state Superior Court, MRO said the act now “unequivocally specifies the ‘amounts’ to which a producing party is entitled if there is a subpoena are those listed in that schedule, and it deletes from the act the words ‘actual and reasonable expenses’ that had been the basis for [the attorneys'] contrary argument,” the company said in a court filing.

But that was not the only issue to be duked out before the high court, according to the attorneys.

Lagnese said another issue ripe for argument is whether MRO may invoke the voluntary payment doctrine as a defense to what the plaintiffs said were unlawful charges.

The doctrine states that if a person knowingly pays for something, he or she cannot bring suit to try to recover that payment. But Lagnese said the doctrine was antiquated and did not apply to the instant case.

“Our position is the voluntary payment doctrine is an equitable remedy and can’t be used as a defense to a violation of the law,” he said.

But MRO’s attorney, Carl A. Solano of Schnader Harrison Segal & Lewis, said the plaintiffs had misconstrued the legislation to begin with by interpreting it to mean that a records provider can only charge to recover its own costs in making copies. He added the justices have applied voluntary payment doctrine to the Medical Records Act before and said he considers it a viable defense.

Here’s how Solano sees it: The plaintiffs in the case, who he noted were lawyers, knew or should have known the rates in the statute and were billed accordingly. They accepted the charges and they paid them voluntarily, Solano said.

“Now they are trying to get out from under the deal now that they’ve gotten the records,” he said.

An Allegheny County Court of Common Pleas judge initially denied MRO’s preliminary objections, agreeing with the plaintiffs, but a split Superior Court reversed the decision in August of last year.

The divided intermediate appellate court panel ruled that health care providers or their records-reproducing proxies can base their charges for providing hard copies of medical records on the maximum charges spelled out under state law.

Back in February, the justices granted allocatur. Then came the legislative change.

Both parties were unsure of how the justices would accommodate the legislative change in terms of reviewing the case.

“We recognized that there was a chance the court would not be interested in this case based on the amendment,” Lagnese said.

Solano added he wasn’t surprised by the choice to hear arguments before deciding the case, but noted the amendment to the act “had eliminated any question as to how the statute is to be applied going forward.

“Usually the court is concerned with resolving questions of law that would be uncertain in the future.”

Solano has said the plaintiffs’ interpretation of the language in the previous law essentially meant there was no room for profit in the medical records business.

“The legislature clarified it by just deleting the language,” Solano said.

Ben Present can be contacted at 215-557-2315 or bpresent@alm.com. Follow him on Twitter @BPresentTLI.