Before Judges Long, Wefing and Carchman.
The opinion of the court was delivered by: Carchman, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On appeal from Superior Court of New Jersey, Law Division, Essex County.
These appeals *fn1 involve an issue of alleged overcharging for medical records and require us to determine the appropriate forum for resolution of the factual disputes raised in this litigation. One of the plaintiffs, Kevin Davis, alleges that he was overcharged for medical records by defendant Community Medical Center (CMC), a medical facility regulated by defendant New Jersey State Department of Health, and CMC's agent, Correspondence Management, Inc. (CMI), a medical record copying service. The additional plaintiffs, Josephine Menna and James Boldt, allege overcharging by defendants Tallarico-Bellingham-Linn Urology, P.A.; Dr. Charles Bellingham of Coastal Urology Associates; and Monmouth Family Medicine Group, P.A., (the Doctors) respectively. The Doctors are regulated by defendant New Jersey State Board of Medical Examiners.
Plaintiffs filed an action for damages and other relief for alleged photocopying overcharges by health care providers in violation of N.J.A.C. 8:43G-15.3(d) by CMC, and N.J.A.C. 13:35-6.5(c)4 by the Doctors. Plaintiffs filed a second amended complaint on July 3, 1997. Denominating the action as a class action, plaintiffs alleged violations of the regulations and, together with compensatory damages, sought 1) an order enjoining defendants from further violations and enjoining the New Jersey State Board of Medical Examiners to enforce the regulations; 2) treble damages for violations of the Consumer Fraud Act, N.J.S.A. 56:8-1 to -20, and an order enjoining defendants from further violations; 3) punitive damages and damages for unjust enrichment.
Both the Department of Health and Board of Medical Examiners promulgated regulations concerning the charges for duplication of medical records. The regulations are not identical; they establish different standards and cost considerations for the respective regulated entities. Despite these differences, the trial judge granted summary judgment in favor of all defendants and held that plaintiffs must exhaust administrative remedies before proceeding with this action.
We conclude that the trial judge erred in granting summary judgment and requiring an exhaustion of administrative remedies as to the Doctors. We affirm the dismissal, without prejudice, of the action against the CMC and CMI for failing to exhaust administrative remedies.
For ease of understanding, we will treat the claims against the Doctors and against CMC and CMI separately, for they are, indeed, separate actions involving different parties, regulations and standards. As we will discuss, infra, they should have been pled separately in different actions.
Boldt requested photocopies of medical records from defendant Bellingham, a member of Coastal Urology Associates. He was charged fifty dollars for twenty-three pages of records. He ordered additional records from defendant Monmouth Family Group, P.A., and was charged fifty-five dollars for twenty-nine pages of records. Menna was charged fifty dollars for sixteen pages of records from defendant Talarico-Bellingham-Linn Urology, P.A.
As we have noted, the Board of Medical Examiners regulates the charges for copying medical records. N.J.A.C. 13:35-6.5(c)4 provides:
"Licensees may require a record request to be in writing and may charge a fee for the reproduction of records, which shall be no greater than $1.00 per page or $100.00 for the entire record, whichever is less. (If the record requested is less than 10 pages, the licensee may charge up to $10.00 to cover postage and the miscellaneous costs associated with retrieval of the record.) If the licensee is electing to provide a summary in lieu of the actual record, the charge for the summary shall not exceed the cost that would be charged for the actual record."
The alleged violations of this regulation form the basis of the complaint against the Doctors.
Following the filing of the complaint, the Doctors moved for summary judgment arguing that any complaint regarding the Doctors' overcharging must be addressed to the Board of Medical Examiners. In response to certifications supporting plaintiffs' factual allegations of violations of the regulation, the Doctors neither denied nor explained the charges alleged by plaintiffs to be in excess of the $1.00 per page limit. Despite the apparent violation of the regulation and the absence of any factual dispute, the judge granted defendants' motion for summary judgment requiring exhaustion of administrative remedies. No explanation was set forth as to what information would be developed at any administrative hearing. The judge focused his attention on the claims against CMC and CMI and provided no reasons why the disparate claims were being treated the same. We find no basis for the granting of the Doctors' motion for summary judgment and conclude it was error.
Plaintiffs assert that the order granting summary judgment to "all defendants" and denying the plaintiffs' cross-motion for class certification cannot apply to the Doctors. The order speaks of dismissal with prejudice based on a determination that "defendants have appropriately charged for copies of medical records on a `per admission basis' pursuant to the applicable regulations." This language, referring to hospital admissions, relates to N.J.A.C. 8:43G-15.3(d), the regulation governing hospitals, rather than N.J.A.C. 13:35-6.5(c)4, governing doctors.
The second order appealed from, dismissing all counts of plaintiffs' complaint without prejudice pursuant to R. 4:6-2 for failure to exhaust administrative remedies, is also inapplicable to the Doctors. Plaintiffs note that the trial judge based his ruling entirely on the need for Department of Health expertise in interpreting the term "actual costs," a term contained in N.J.A.C. 8:43G-15.3(d), and absent in N.J.A.C. 13:35-6.5(c)4. *fn2
N.J.A.C. 13:35-6.5(c)4 simply provides for photocopying charges of up to $1.00 per page for copying medical records. Plaintiffs alleged the violation of this regulation, with amounts charged in excess of this figure. The doctors neither deny this, nor explain the charges alleged by plaintiffs to be in excess of the $1.00 per page figure. Thus plaintiffs argue that the record supports a finding that the Doctors violated N.J.A.C. 13:35-6.5(c)4 as a matter of law. *fn3
The Doctors' primary argument is that the Board of Medical Examiners, not the courts, has "original jurisdiction" for dealing with the issues presented, based on its expertise, an issue not addressed by the trial judge. We reject the Doctors' argument for the reasons set forth infra.
On its face, the Doctors' charges violated the regulation. The charges exceeded $1.00 per page and no explanation is provided otherwise. Clearly, the "competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardianship Life Ins. Co. of America, 142 ...