Beauchesne v. New England Neurological Associates, P.C.

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19-P-614 Appeals Court

MARK BEAUCHESNE1 vs. NEW ENGLAND NEUROLOGICAL ASSOCIATES, P.C.

No. 19-P-614.

Essex. March 12, 2020. - October 29, 2020.

Present: Sullivan, Henry, & Hand, JJ.

Consumer Protection Act, Availability of remedy, Class action,
Trade or commerce, Unfair or deceptive act. Contract,
Performance and breach, Implied covenant of good faith and
fair dealing. Statute, Construction. Practice, Civil,
Consumer protection case, Class action, Motion to dismiss.

Civil action commenced in the Superior Court Department on
December 22, 2017.

Motions to dismiss and for class certification were heard
by Shannon Frison, J.

The case was submitted on briefs.
Walter H. Jacobs & Alexandria A. Jacobs for the plaintiff.
Richard J. Yurko & Anthony B. Fioravanti for the defendant.

HENRY, J. The plaintiff, Mark Beauchesne, brought this

putative class action against the defendant, New England

1 On behalf of himself and others similarly situated.
2

Neurological Associates, P.C. (NENA), alleging that NENA

overcharged him and others for certified copies of their medical

records and bills. General Laws c. 111, § 70, and G. L. c. 112,

§ 12CC, limit how much hospitals, clinics, and health care

providers may charge patients for copies of their medical

records. This appeal raises the question whether those statutes

apply to certified copies of medical records. Because we

conclude that they do, and because we further conclude that

G. L. c. 93A may provide an avenue for relief, we vacate so much

of the judgment as dismissed Beauchesne's claim for violation of

G. L. c. 93A and denied class certification.

Background. We recite the facts as alleged in the first

amended complaint, which we accept as true in reviewing a motion

to dismiss, Iannacchino v. Ford Motor Co., 451 Mass. 623, 625

n. 7 (2008), supplemented by factual information contained in

documents referred to or relied upon in the operative complaint.

See Kilnapp Enters. v. Massachusetts State Auto. Dealers Ass'n,

89 Mass. App. Ct. 212, 213-214 (2016) ("A reviewing court, like

the judge initially evaluating and ruling upon a motion to

dismiss, is entitled to consider materials not appended to the

complaint, but referenced or relied upon in the complaint").

On November 20, 2017, Beauchesne's attorney sent NENA a

request for "certified copies of [Beauchesne's] medical records

and bills regarding [an] automobile accident that occurred on or
3

about September 16, 2017," along with an authorization signed by

Beauchesne. The authorization stated that "[t]he information is

to be used FOR LEGAL PURPOSES," and that it was a request for

"COMPLETE CERTIFIED COPIES OF RECORDS AND BILLS" for treatment

dates from September 1, 2017, to November 20, 2017. NENA

responded by letter, stating that "[t]he fee for retrieval and

copying of records is $45.00," that the fee included updates "as

appropriate, or as requested," and that it would "forward the

requested records/bills as soon as payment is received." After

Beauchesne's attorney paid forty-five dollars using Beauchesne's

funds, NENA sent two pages of medical records and a one-page

bill, along with an affidavit "certify[ing] that the attached

are complete and accurate copies of the medical records and/or

bills on file regarding [Beauchesne]." The affidavit stated

that it was provided pursuant to G. L. c. 233, § 79G, which

addresses the admissibility of medical records and bills in the

courts of the Commonwealth.

Beauchesne then brought the underlying complaint, alleging

that he, and others similarly situated, had been overcharged for

certified copies of their medical records and bills. Nena filed

a motion to dismiss. NENA argued, and the motion judge agreed,

that Beauchesne's claims fail because certified copies of

medical records are not addressed by G. L. c. 111, § 70, and are

instead addressed by G. L. c. 233, § 79G.
4

Discussion. Beauchesne asserts that in December 2017, the

reasonable fee, as defined by G. L. c. 111, § 70, for copies of

medical records included a base fee of $23.89, along with a fee

of eighty-one cents per page for the first one hundred pages of

records provided, and forty-one cents for each page provided in

excess of one hundred pages.2 Thus, Beauchesne contends that he

should have been billed and required to pay only $26.81,

including postage of forty-nine cents, resulting in an unlawful

overcharge by NENA of $18.19 (forty-five dollars less $26.81).

While Beauchesne concedes that NENA could have charged him an

additional fee for the certification, he contends that the

forty-five-dollar charge was solely for the retrieval and

copying of his records and did not include a fee for the

certification.

1. The reasonable fee for medical records. General Laws

c. 112, § 12CC, applies to any "health care provider who

maintains records for a patient treated or examined by such

provider" and states that "upon request[,] a copy of such

patient's records shall be furnished upon payment of a

reasonable fee, as defined in [G. L. c. 111, § 70]." General

Laws c. 111, § 70, which otherwise applies to records kept by

2 These amounts include adjustments to reflect the consumer
price index for medical care services, as permitted by the
statute.
5

hospitals and clinics,3 defines "a reasonable fee" to "mean a

base charge of not more than $15 for each request . . . ; a per

page charge of not more than $0.50 for each of the first 100

pages . . . ; and not more than $0.25 per page for each page in

excess of 100 pages." This reasonable fee may be "adjusted to

reflect the consumer price index for medical care services."

Id. "A hospital or clinic may also charge an additional fee to

cover the cost of postage, other priority mailing and

preparation of an explanation or summary of the hospital or

clinic medical record if so requested." Id.

Whether G. L. c. 111, § 70, and G. L. c. 112, § 12CC, apply

to certified copies of medical records is a question of

statutory interpretation that we review de novo. See Chin v.

Merriot, 470 Mass. 527, 531 (2015). "Under well-established

principles of statutory construction, a statute must be

interpreted according to the intent of the Legislature

ascertained from all its words construed by the ordinary and

approved usage of the language, considered in connection with

the cause of its enactment, the mischief or imperfection to be

remedied and the main object to be accomplished, to the end that

the purpose of its framers may be effectuated" (quotation and

3NENA asserts, without providing further explanation, that
it is not a hospital or a clinic subject to G. L. c. 111, § 70,
but it does not dispute that it is a health care provider
subject to G. L. c. 112, § 12CC.
6

citation omitted). Id. at 532. In conducting this analysis, we

"examine the pertinent language in the context of the entire

statute." Id.

Nothing in either G. L. c. 111, § 70, or G. L. c. 112,

§ 12CC, limits their applicability to uncertified copies of

medical records. Rather, both statutes apply to copies of

medical records in general, without limitation, and we will not

read words into a statute that are not there. See Anderson St.

Assocs. v. Boston, 442 Mass. 812, 817 (2004) (rejecting argument

that would have required court to read words into statute that

were not there). Nor is there any indication that the

Legislature intended to address access to certified copies of

medical records in G. L. c. 233, § 79G, as NENA argues. General

Laws c. 233, § 79G, pertains to a different subject: the

requirements for offering medical records and bills in evidence

in court proceedings. It does not pertain to access to medical

records and bills or specify fees for acquiring certified copies

of those records; instead, it works in harmony with G. L.

c. 111, § 70. We thus conclude that G. L. c. 111, § 70, and

G. L. c. 112, § 12CC, apply to certified copies of medical

records.

It is true that the fee provisions contained in G. L.

c. 111, § 70, mention copies in general and that the "meaning of

a general term . . . must be limited so as not to include
7

matters that . . . do not fairly come within [the] spirit and

intent of the Legislative enactment" (quotation and citation

omitted). Aviksis v. Murray, 87 Mass. App. Ct. 141, 145 (2015).

Certified copies do, however, come within the spirit and intent

of G. L. c. 111, § 70, and G. L. c. 112, § 12CC, as evident from

the fact that both statutes also govern the provision of copies

in circumstances where certified copies are required, such as

when responding to a subpoena.4 Thus, it is simply not accurate

that neither statute applies to certified copies.

Lastly, our interpretation is also consistent with the fee

structure, itself. The reasonable fee includes a base fee and a

per-page fee, and it also includes an additional fee "to cover

the cost of . . . preparation of an explanation or summary of

the hospital or clinic medical record if so requested." G. L.

c. 111, § 70. This fee structure thus acknowledges that there

4 General Laws c. 111, § 70, requires a hospital or clinic
served with a subpoena for medical records to "deliver certified
copies of the subpoenaed records in its custody to the court or
place of hearing designated on the subpoena" (emphasis added).
Both statutes also prohibit any fee from being charged "if the
record is requested for the purpose of supporting a claim or
appeal under any provision of the Social Security Act or any
[F]ederal or [S]tate financial needs-based benefit program."
G. L. c. 111, § 70. G. L. c. 112, § 12CC. In 1992, when the
Legislature amended the statutes to include this provision, see
St. 1992, c. 311, the Social Security Administration specified
that "the copy or summary [of the medical records] should be
certified as accurate," 20 C.F.R. § 416.913(a)(5) (1992). We
presume the Legislature was aware of the state of the law at
that time. See Globe Newspaper Co., petitioner, 461 Mass. 113,
117 (2011).
8

may be times when patients' requests for their records will

entail more work than simply retrieving and copying those

records. When a hospital, clinic, or health care provider must

prepare an explanation or a summary of a patient's records, it

may charge an additional fee to cover the cost of that work.

Providing a certified copy falls squarely into that category, as

a certified copy is simply a copy that contains an attestation,

usually by the officer responsible for keeping the original,

that the copy is an exact reproduction of the original. See

Black's Law Dictionary 410 (10th ed. 2014).

NENA alternatively argues that it was permitted under G. L.

c. 111, § 70, and G. L. c. 112, § 12CC, to charge an additional

fee for the certification, and that it was therefore justified

in charging Beauchesne forty-five dollars. Where this case was

decided on a motion to dismiss, however, we must assume the

facts as alleged are true, and the complaint alleges that NENA

charged Beauchesne forty-five dollars solely for the retrieval

and copying of his medical records and bills.5 We cannot assume,

as NENA asks us to do, that the forty-five-dollar charge

included a reasonable fee for the certification. Whether NENA

did, in fact, charge for the certification, what the amount of

5 These allegations are supported by the bill that NENA sent
Beauchesne, which stated that "[t]he fee for retrieval and
copying of records is $45.00" (emphasis added).
9

that fee could have been, whether NENA needed to inform

Beauchesne of that fee, and whether NENA did, at least

implicitly, inform Beauchesne of that fee, see note 11 infra,

are not questions that are properly before us in this appeal.

2. Beauchesne's claims. We next address whether any of

Beauchesne's asserted claims provide an avenue for relief.

Beauchesne's notice of appeal limits his appeal to the dismissal

of his claims for breach of contract, breach of the implied

covenant of good faith and fair dealing, violation of G. L.

c. 93A, § 2 (a), and the denial of his motion for class

certification.6

a. Breach of contract and of the implied covenant of good

faith and fair dealing. Beauchesne first argues that any

overcharge here may be remedied through a claim for breach of

contract.7 We disagree. Even if we were to assume that the

communications between Beauchesne's attorney and NENA were

6 The notice of appeal does not include Beauchesne's claim
asserting a violation of G. L. c. 111, § 70. Nonetheless, his
appellate brief argues that § 70, contains an implied private
cause of action. While this argument is waived, it also has no
merit. "[C]lear legislative intent is necessary to infer a
private cause of action from a statute," and there is nothing in
the statute or otherwise from which we could infer a private
cause of action. Sullivan v. Chief Justice for Admin. & Mgt. of
the Trial Court, 448 Mass. 15, 38 (2006), quoting Loffredo v.
Center for Addictive Behaviors, 426 Mass. 541, 543 (1998).

7 Whether NENA did, in fact, overcharge Beauchesne is not
before us in this appeal.
10

sufficient to form a contract and that the fee charged violated

the statutes, the issue would become whether the contract was

thereby rendered void -- not whether the contract was breached.

See Baltazar Contrs., Inc. v. Lunenburg, 65 Mass. App. Ct. 718,

720-721 (2006) (contract made in violation of statutory terms

void if statute expressly so provides, or if necessary to

accomplish purpose of statute).8 The issue whether the contract

should be rendered void, however, is not before us in this

appeal.9

Beauchesne fares no better by framing his claim as one for

breach of the implied covenant of good faith and fair dealing.

The implied covenant "concerns the manner of performance" and

8 We do not address whether Beauchesne may have had
alternative equitable claims for relief that have not been
raised on appeal.

9 Beauchesne argues that the contract implicitly
incorporated the statutes, but he has not offered persuasive
legal support for the proposition that he may bring a breach of
contract claim based on violation of those statutes. While we
recognize that the Supreme Judicial Court has said that, "[a]s a
general rule, the law existing at the time an agreement is made
necessarily enters into and becomes part of the agreement,"
Feakes v. Bozyczko, 373 Mass. 633, 636 (1977), that statement
was made in the context of declaring the parties' rights and
obligations regarding the payment of child support to a child's
"age of majority." The term "age of majority" was a statutorily
defined term that was changed after the parties entered into the
agreement. Id. at 637-638. Whether Beauchesne may bring a
breach of contract claim based on alleged statutory violations
presents different concerns that we do not address further given
Beauchesne's failure to provide legal support for the
proposition.
11

"exists so that the objectives of the contract may be realized."

Ayash v. Dana-Farber Cancer Inst., 443 Mass. 367, 385, cert.

denied sub nom. Globe Newspaper Co. v. Ayash, 546 U.S. 927

(2005). Breaches of the implied covenant have been found when

one party has done something to "destroy[] or injur[e] the right

of the other party to receive the fruits of the contract"

(citation omitted). Weiler v. PortfolioScope, Inc., 469 Mass.

75, 82 (2014). See, e.g., Parker v. EnerNOC, Inc., 484 Mass.

128, 137 (2020) (breach of implied covenant found where employer

fired employee to avoid paying commissions she would have

otherwise earned); Motsis v. Ming's Supermkt., Inc., 96 Mass.

App. Ct. 371, 375 (2019) (breach of implied covenant found where

commercial landlord failed to make structural repairs or

cooperate with tenant in permit application process). Passing

over whether NENA violated its obligation to charge a reasonable

fee, as that term has been defined by the Legislature, such a

violation would not have prevented Beauchesne from receiving the

fruits of the contract. Beauchesne's allegation that NENA

breached the implied covenant by charging an unreasonable fee is

instead an attempt to invoke the implied covenant to "create

rights and duties not otherwise provided for in the existing

contractual relationship," which he may not do. Ayash, supra,

quoting Uno Restaurants, Inc. v. Boston Kenmore Realty Corp.,

441 Mass. 376, 385 (2004).
12

b. Violation of G. L. c. 93A. Beauchesne next argues that

any overcharge here may be remedied through c. 93A. We describe

NENA's arguments regarding Beauchesne's c. 93A claim in detail,

as those arguments frame our discussion. NENA argues that the

alleged overcharge cannot be remedied through c. 93A because the

Department of Public Health and the Board of Registration in

Medicine may discipline those who violate G. L. c. 111, § 70,

and G. L. c. 112, § 12CC, and that the Legislature thereby "left

enforcement of [those] statute[s] to a separate regulatory

regime." NENA relies on McGonagle v. Home Depot, U.S.A., Inc.,

75 Mass. App. Ct. 593, 602 (2009), which involved sales tax

overcharges. In that case, we concluded that the plaintiff

could not remedy the sales tax overcharges through c. 93A, in

part because "pertinent statutes and regulations administered by

[the Department of Revenue] afford an aggrieved sales tax payer

primary recourse potentially inconsistent with c. 93A remedies."

McGonagle, supra.10 According to NENA, McGonagle stands for the

broad proposition that "where, as here, the Legislature has left

enforcement of a statute to a separate regulatory regime, a

10As we explained, "A person seeking refund of an
overpayment . . . may apply for an abatement within two years of
the payment of the tax. Interest on the refund will depend on a
Federal short-term rate, typically far below the rate of twelve
percent authorized for compensatory damages by Massachusetts
law. The remedies provided for refund shall be exclusive,
whether or not the tax is wholly illegal" (quotation and
citations omitted). McGonagle, 75 Mass. App. Ct. at 602.
13

claim pursuant to c. 93A is unavailable." This interpretation

of McGonagle is inconsistent with c. 93A and other case law.

Chapter 93A, § 2 (a), declares unlawful "[u]nfair methods

of competition and unfair or deceptive acts or practices in the

conduct of any trade or commerce." "The [A]ttorney [G]eneral

may make rules and regulations interpreting [c. 93A, § 2 (a)]."

G. L. c. 93A, § 2 (c). One such regulation, 940 Code Mass.

Regs. § 3.16(3) (1993), provides that any act or practice is a

violation of c. 93A, § 2 (a), if "[i]t fails to comply with

existing statutes, rules, regulations or laws, meant for the

protection of the public's health, safety, or welfare . . .

intended to provide the consumers of this Commonwealth

protection." This regulation, however, is "bound by the scope

of c. 93A, § 2 (a)," and "a violation of a law or regulation

. . . will be a violation of c. 93A, § 2 (a), only if the

conduct leading to the violation is both unfair or deceptive and

occurs in trade or commerce." Klairmont v. Gainsboro

Restaurant, Inc., 465 Mass. 165, 174 (2013).

Although violations of laws and regulations are not always

violations of c. 93A, § 2 (a), such violations may -- and

frequently do -- serve as the bases of c. 93A claims if the

underlying conduct is unfair or deceptive. This is true even

when some other mechanism exists for enforcing the statute or

regulation. See Hershenow v. Enterprise Rent-A-Car Co. of
14

Boston, 445 Mass. 790, 795 (2006) (rejecting argument that where

statute governing car rental agreements "provides for civil

fines and a public enforcement action[,] . . . private relief

for violations of that statute is not available" through

c. 93A); Columbia Chiropractic Group, Inc. v. Trust Ins. Co.,

430 Mass. 60, 61-62 (1999) (rejecting argument that c. 93A claim

should have been dismissed because agency had primary

jurisdiction). For example, State building code violations may

result in liability under c. 93A, see Klairmont, 465 Mass. at

174-176, even though "[t]he building commissioner or inspector

of buildings" is charged with the responsibility of

"administering and enforcing the [S]tate building code" for

cities and towns, G. L. c. 143, § 3. The same is true of ticket

resale price violations, see Herman v. Admit One Ticket Agency

LLC, 454 Mass. 611, 618 (2009), even though the Division of

Professional Licensure may investigate the affairs of anyone

licensed to resell tickets to determine compliance with

applicable laws, see G. L. c. 140, § 185E.

McGonagle, is not to the contrary. In McGonagle, 75 Mass.

App. Ct. at 602, our conclusion that sales tax overcharges could

not be remedied through c. 93A did not rest on the mere

existence of some other enforcement mechanism. Rather, we held

that sales tax overcharges could not be remedied through c. 93A

because the particular enforcement mechanism at issue in sales
15

tax overcharges afforded an aggrieved person "recourse

potentially inconsistent with c. 93A remedies." McGonagle,

supra. We noted specific tax code provisions that were

inconsistent with c. 93A remedies, including the fact that a

taxpayer seeking a refund had to apply for an abatement within

two years, whereas the statute of limitations for c. 93A claims

was four years, and the fact that the interest on tax refunds

depended on a Federal short-term rate, whereas the interest on

c. 93A damages was set at twelve percent. McGonagle, supra.

Here, while the Department of Public Health and the Board of

Registration in Medicine may discipline those who violate G. L.

c. 111, § 70, and G. L. c. 112, § 12CC, nothing about that is

inconsistent with c. 93A remedies. See 105 Code Mass. Regs.

§§ 130.111-130.112 (2017) (allowing Department of Public Health

to inspect hospitals and issue deficiency statements); 243 Code

Mass. Regs. § 1.03(1) (2012) (allowing anyone to "make a

complaint to the Board [of Registration in Medicine] which

charges a licensee with misconduct").

The questions we must answer, then, are whether

overcharging for medical records and bills is unfair or

deceptive and, if so, whether it occurs in trade or commerce.

See Klairmont, 465 Mass. at 174. Overcharging has repeatedly

been found to be an unfair or deceptive act or practice. See

Rita v. Carella, 394 Mass. 822, 823, 827 (1985) (overcharges in
16

violation of rent control ordinance recoverable under c. 93A);

Southbridge Water Supply Co. v. Department of Pub. Utils., 368

Mass. 300, 310 (1975) (suggesting that overcharged utility

customer may have c. 93A claim); Ramos v. International Fid.

Ins. Co., 87 Mass. App. Ct. 604, 605, 608 (2015) (excessive fees

charged by bail agent, in violation of court rule, were unfair

or deceptive). See also Purity Supreme, Inc. v. Attorney Gen.,

380 Mass. 762, 779 (1980) (Attorney General acted within his

authority under c. 93A in promulgating regulation to prevent

overcharging on consumer goods). Overcharging for medical

records and bills is no different, especially given the "self-

evident importance of the availability of medical records to

consumers." Montanez v. 178 Lowell St. Operating Co., 95 Mass.

App. Ct. 699, 702 (2019).

Overcharging for medical records and bills also occurs in

trade or commerce. Where medical disputes are concerned, we

distinguish between allegations regarding "the negligent

provision of medical care" and allegations regarding "the

entrepreneurial and business aspects of providing medical

services." Darviris v. Petros, 442 Mass. 274, 279 (2004). See

Morgan v. Laboratory Corp. of Am., 65 Mass. App. Ct. 816, 821-

822 (2006). The negligent provision of medical care may not be

remedied through c. 93A, whereas unfair or deceptive acts or

practices pertaining to the entrepreneurial and business aspects
17

of providing medical services may be remedied through c. 93A.

See Darviris, supra. As we previously concluded in Montanez, 95

Mass. App. Ct. at 702, providing copies of medical records is an

entrepreneurial or business aspect of providing medical

services.

Assuming all of the allegations in Beauchesne's complaint

are true, as we must on a motion to dismiss, we conclude that he

has properly asserted a claim for violation of c. 93A, § 2 (a).

Those allegations include that NENA was aware of the reasonable-

fee requirement and that it (1) charged a flat fee of forty-five

dollars solely for the retrieval and copying of medical records

and bills despite the reasonable fee requirement,11 and

(2) conditioned providing medical records and bills upon the

payment of a fee that exceeded the reasonable fee, as that term

has been defined by the Legislature. In reaching this

conclusion, we again emphasize that we have not concluded

whether Beauchesne was, in fact, overcharged or whether NENA's

response to Beauchesne's request implicitly included a

reasonable fee for the certification.

11To the extent NENA argues that the forty-five-dollar
charge included a fee for the certification, Beauchesne notes
that NENA did not disclose that fact. Regardless, it is evident
that he requested certified copies of his medical records. At
this stage and on the record before us, we do not address
whether, viewing Beauchesne's request and NENA's response
together, NENA's response could thus be viewed as implicitly
including a reasonable fee for the certification.
18

3. The class action. In the same order in which the judge

allowed NENA's motion to dismiss, the judge also denied

Beauchesne's motion to certify the class. The sole basis for

doing so was that Beauchesne's individual claims had been

dismissed and he therefore could not represent the interests of

the class. Where we vacate the dismissal of Beauchesne's c. 93A

claim, the motion to certify the class should also be

reconsidered by the Superior Court judge on remand if the need

should arise. See Doe v. Registrar of Motor Vehicles, 26 Mass.

App. Ct. 415, 425 n.18 (1988) (noting class certification raises

multiple issues, some factual, and concluding it was best left

for trial court to determine class certification on remand if

necessary where judge had rejected claim on merits and had not

reached certification).

Conclusion. So much of the judgment that dismissed

Beauchesne's claim for violation of G. L. c. 93A and denied his

motion for class certification is vacated. The remainder of the

judgment is affirmed.

So ordered.