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Ramirez v. Smart Corp.

February 16, 2007

SUE RAMIREZ, INDIVIDUALLY AND ON BEHALF OF A CLASS OF SIMILARLY SITUATED INDIVIDUALS, PLAINTIFF-APPELLANT,
v.
SMART CORPORATION, A CALIFORNIA CORPORATION AUTHORIZED TO DO BUSINESS IN THE STATE OF ILLINOIS, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of the 10th Judicial Circuit, Peoria County, Illinois, No. 01-L-385 Honorable Joe Vespa, Judge, Presiding.

The opinion of the court was delivered by: Justice Lytton

Plaintiff Sue Ramirez obtained copies of her hospital medical records from Smart Corporation, a company that provides record retrieval and copying service. She later filed a four-count complaint against Smart, alleging that the company overcharged hospital patients for such services and requesting class action certification. The trial court granted summary judgment on all four counts and denied certification of the class. We affirm in part, reverse in part and remand for further proceedings.

In 1993, Pekin Hospital contracted with Smart to respond to requests from patients and their agents for copies of patient records. When a request was received, the hospital would turn it over to Smart which maintained its own employees and copying machine on the hospital premises. A Smart employee retrieved the patient's records from the record storage area and copied them. The Smart employee then returned the file to a hospital employee who returned the records to the storage area. After copying the patient's records, Smart delivered the records to the patient, along with a bill for the copying charges.

Ramirez sustained injuries and was treated in the emergency room at Pekin Hospital. Shortly thereafter, Ramirez retained the law firm of Hamm & Hanna, Ltd. and, in January 1999, filed a workers compensation claim. To prepare the claim, attorney Robert Hanna sent a letter to the hospital requesting copies of Ramirez' records of her treatment. Smart responded to the request and sent her hospital records, which totaled six pages, with a bill for $34.78 to Hanna's office. The charges on the bill were itemized as follows:

"Basic fee $15.00

Per page charge $1.00 (x 6) Photocopy Charge $21.00 Facility Retrieval/Search Fee $10.00 Shipping/Handling $3.78"

A cover letter stated:

"Smart will continue to copy records that you request from this facility or, if you prefer, you may make arrangements for one of your own personnel or an independent copy service to copy the requested records. However, you must obtain prior permission and schedule an appointment with the medical records department in advance."

Hanna's secretary, Diana McPherson, reviewed the bill and authorized payment. Hanna's office paid the bill without objecting to the amount or nature of the charges. Ramirez did not review the invoice prior to the firm's payment of the bill.

In an affidavit, Brenda Bouris, a hospital supervisor responsible for records, stated that the hospital never permitted patients or patients' attorneys to personally handle their own medical records or copy the records themselves. While the hospital was under contract with Smart, the only way a patient could obtain a copy of the patient's records was for Smart to perform the copying.

Ramirez filed a complaint "seeking to represent a class of all persons in Illinois who had been victimized by Smart's excessive charges to obtain copies of their own records." Count I alleged that Smart charged an unreasonable price under the common law. Count II contended that Smart violated the Inspection of Hospital Records Act (Hospital Records Act) (735 ILCS 5/8-2001 (West 1998)).

Count III alleged that Smart's fees were deceptive and misleading and violated the Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act) (815 ILCS 505/1 et seq. (West 1998)). Count IV claimed that Smart was unjustly enriched because of the excessive fees.

Ramirez also filed a motion for class certification. The court denied the request, finding that Ramirez was not an adequate representative of the class because Hanna's office, not Ramirez, had reviewed the Smart invoice and paid the bill.

Smart moved for summary judgment on all counts. The court granted judgment in favor of Smart, concluding that Ramirez' claims were barred by the voluntary payment doctrine. The trial court also held that Ramirez was precluded from suing for damages under the Hospital Records Act because the Act contains an express right of action compelling a hospital to permit copying of records with an award of attorney fees. Finally, the court concluded that Smart's charges were not deceptive or unfair under the Consumer Fraud Act.

I. Summary Judgment

Summary judgment is a drastic method of disposing of litigation. It is proper only when the pleadings, depositions, and admissions clearly demonstrate that there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2004); Pennsylvania Life Insurance Co. v. Pavlick, 265 Ill. App. 3d 526 (1994). In reviewing an order for summary judgment, all of the facts must be viewed in a light most favorable to the nonmoving party. Eyrich v. Johnson, 279 Ill. App. 3d 1067 (1996). Thus, on examination of the record, if it can be fairly stated that a triable issue of fact exists, the motion should be denied. Bellmer by Bellmer v. Charter Security Life Insurance Co., 140 Ill. App. 3d 752 (1986). When a trial court grants summary judgment, we review de novo. Courson ex rel. Courson v. Danville School District No. 118, 301 Ill. App. 3d 752 (1998).

A. Voluntary Payment Doctrine

Ramirez claims that the trial court erred in granting summary judgment on the basis that her claims were barred by the voluntary payment doctrine. Ramirez argues that the doctrine does not apply to this case because she had no "reasonable alternative" for obtaining her medical records from any other source.

Under the voluntary payment doctrine, absent fraud, duress or mistake of fact, money voluntarily paid on a claim of right to the payment cannot be recovered on the ground that the claim was illegal. King v. First Capital Financial Services Corp., 215 Ill. 2d 1 (2005). The voluntary payment doctrine applies to any cause of action which seeks to recover payment of a claim of right, whether that claim is premised on a contractual relationship or a statutory obligation. Smith v. Prime Cable of Chicago, 276 Ill. App. 3d 843 (1995). Though payment under protest is the typical means by which a plaintiff signifies his contention that a tax or charge is improper, the absence of such a protest does not, without more, require the application of the voluntary payment doctrine. Getto v. City of Chicago, 86 Ill. 2d 39 (1981). It must also be shown that the plaintiff had knowledge of the facts upon which to base a protest and that the payments were not made under duress or compulsion. Getto, 86 Ill. 2d at 48-49.

1.

In this case, Ramirez does not dispute that she paid the invoices without protest. However, she claims that the exception of duress has been adequately set forth and raises a question of fact sufficient to defeat a motion for summary judgment.

To defeat the voluntary payment doctrine on the basis of duress, the plaintiff must show that the payment was not voluntary because there was some necessity that amounted to compulsion and that the payment was made under the influence of that compulsion. King, 215 Ill. 2d 1. Whether the plaintiff had to protest the charge is irrelevant to the issue of duress. Geary v. Dominick's Finer Foods, Inc., 129 Ill. 2d 389 (1989). A plaintiff must prove duress by demonstrating both that the service is a necessity and that no reasonable alternative exists. Geary, 129 Ill. 2d 389. To establish that "no reasonable alternative exists," plaintiffs need not plead that they attempted to obtain the product or services elsewhere or that they had actual knowledge of defendant's policy of refusal to provide the product or services if the charge was not paid. Geary, 129 Ill. 2d 389. Moreover, plaintiffs do not have to plead an actual threat; implied duress is sufficient. See Geary, 129 Ill. 2d 389; Getto, 86 ...


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