Michigan Supreme Court
Lansing, Michigan 48909
____________________________________________________________________________________________
C h i e f J u s ti c e J u s t ic e s
Maura D. Corrigan Michael F. Cavanagh
Opinion
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
____________________________________________________________________________________________________________________________
FILED JULY 23, 2003
WILLIAM SLOBIN, Personal
Representative of the ESTATE
OF MARTIN SLOBIN,
Plaintiff-Appellee,
Cross-Appellant,
v No. 122063
HENRY FORD HEALTH CARE,
Defendant-Appellant,
Cross-Appellee.
________________________________
PER CURIAM
A law firm representing plaintiff1 in a legal matter
requested a copy of his medical records held by defendant.
The company under contract with defendant to copy and send the
records charged the law firm $44.26 for twenty-two pages.
Plaintiff filed this action alleging that the charge was
unduly high and in violation of several legal principles. The
1
Plaintiff Martin Slobin died on December 6, 2000, and
William Slobin, personal representative of the decedent’s
estate, was thereafter substituted as plaintiff. In this
opinion, “plaintiff” refers to Martin Slobin.
Court of Appeals concluded that plaintiff could pursue his
case on the basis of two of these principles, one under the
Michigan Consumer Protection Act (MCPA), MCL 445.901 et seq.,
the second by theory of civil conspiracy under the MCPA. We
conclude that the law firm’s request for copies was not
subject to the MCPA and reverse that portion of the Court of
Appeals decision accordingly.
I
Plaintiff was injured in a slip-and-fall incident at a
shopping center in 1996 and retained the law firm of Goren &
Goren to represent him in connection with his injury. The law
firm requested plaintiff’s medical records from defendant’s
Fairlane Clinic for use in the legal pursuit of the injury
claim. In response to the request for the medical records,
the law firm received a twenty-two-page compilation and an
itemized invoice for $44.26.
The medical records were copied and sent to the law firm
by Smart Corporation (Smart), which had entered into a
contract with defendant to respond to patient and other entity
requests for copies of medical records. Under the contract,
defendant collected the requested records and provided them to
Smart for copying and mailing to the requesting party. All
fees received in connection with the copying were retained by
Smart, with the exception of a $7 retrieval fee to defendant.
The invoice presented to Goren & Goren contained this $7
2
retrieval fee, as well as a flat $15 charge for the first five
pages of copied records, an $0.85 fee for each additional
page, a $5.30 fee for shipping and handling, and sales tax.2
The law firm paid the invoice, but subsequently filed this
action on behalf of plaintiff, claiming the charges submitted
by Smart were unduly high and therefore in violation of the
law.
Plaintiff in his complaint alleged that defendant, by
contracting with Smart, (1) violated its common-law duty to
provide copies of medical records at a reasonable cost, (2)
violated the MCPA by charging a consumer price grossly in
excess of similar copying rates, (3) breached its fiduciary
duty to plaintiff by permitting Smart to charge him more than
the marginal costs of copying records, and (4) tortiously
acted in concert with Smart to require patients to pay
unreasonably high fees for copies of their medical records.
Plaintiff filed a motion for summary disposition, adding the
contention that defendant’s contract with Smart amounted to an
illegal subsidy by allowing Smart to recoup losses it accrued
by providing free copies to select requesting entities, such
as other health-care providers and government agencies.
2
The record indicates that the fee charged by Smart
varied on the basis of who made the request. For example,
doctors and hospitals were not charged for copies of medical
records requested for the purpose of continuing patient care.
Individual patients ordering their own records were charged a
discounted rate. Law firms and insurance companies ordering
medical records were charged at the higher rate being
challenged in this case.
3
Defendant filed its own motion for summary disposition,
not only responding to plaintiff’s arguments, but also
contending that the Public Health Code provided the exclusive
remedy for challenging a hospital’s copying charges. The
circuit court denied plaintiff’s motion and granted
defendant’s motion pursuant to MCR 2.116(C)(8) and (10).
Plaintiff appealed by right to the Court of Appeals. In
a split decision, the Court affirmed the circuit court’s grant
of summary disposition for defendant in all but two respects.3
A majority of the Court concluded that plaintiff could
maintain his claim under the MCPA, because the request for
copies was subject to the act and reasonable minds could
differ on whether the charge for the copies of plaintiff’s
medical records was grossly excessive. The majority also held
that plaintiff could maintain his concert-of-action, or civil
conspiracy, claim, limited to the extent it rested on the
alleged MCPA violation. We limit our analysis to the issue
whether the request for medical records in this case was
subject to the MCPA.
II
The MCPA provides protection to Michigan’s consumers by
prohibiting various methods, acts, and practices in trade or
3
Unpublished opinion per curiam, issued July 9, 2002
(Docket No. 216196). Each judge on the panel wrote a separate
opinion.
4
commerce. MCL 445.903(1) provides a lengthy list of “unfair,
unconscionable, or deceptive” conduct for which remedies are
available under the act. The prohibited conduct claimed by
plaintiff is the following:
(z) Charging the consumer a price that is
grossly in excess of the price at which similar
property or services are sold.
Such improper charging is only unlawful under the act,
however, “in the conduct of trade or commerce” as defined in
the act. MCL 445.902(d) defines the term in relevant part as
follows:
“Trade or commerce” means the conduct of a
business providing goods, property, or service
primarily for personal, family, or household
purposes . . . .
Defendant argues that the law firm’s request for
plaintiff’s medical records in this case did not satisfy the
requirement of being primarily for “personal, family, or
household purposes,” and that the MCPA was therefore not
applicable to the copying charges at issue in this case. The
Court of Appeals lead opinion did not directly address this
question. The dissenting judge focused on it, however,
contending that plaintiff’s MCPA claim failed as a matter of
law because obtaining medical records for the purpose of
litigation does not satisfy the definition of “trade or
commerce” found in the act. We agree because obtaining
medical records for the purpose of litigation is not primarily
for personal, family, or household use.
5
This is consistent with several Court of Appeals opinions
that held that the MPCA applies only to purchases by consumers
and does not apply to purchases that are primarily for
business purposes. For example, in Zine v Chrysler Corp, 236
Mich App 261, 600 NW2d 384 (1999), the plaintiff purchased a
truck for use in his business and alleged that a booklet that
defendant had placed in new cars was misleading. The Court
noted that, although plaintiff used the truck in part for
personal needs, he had testified that eighty percent of the
miles he put on the truck were attributable to business
driving. The Court therefore concluded that summary
disposition was appropriate on plaintiff’s MCPA claim, holding
that “if an item is purchased primarily for business or
commercial rather than personal purposes, the MCPA does not
supply protection.” Id. at 273.
Likewise, in Jackson Co Hog Producers v Consumers Power
Co, 234 Mich App 72; 592 NW2d 112 (1999), the claim was lost
hog production from alleged “stray voltage.” The Court held
that “the definition of ‘trade or commerce’ renders the MCPA
inapplicable to the transaction . . . where plaintiffs
purchased electricity from defendant primarily for the purpose
of operating their business rather than ‘primarily for
personal, family, or household purposes.’” Id. at 84. These
cases reflect a correct understanding of the scope and purpose
of the MCPA.
In this case, we have precisely the business or
6
commercial purpose that is outside the express contemplation
of the MCPA. The law firm here did not act as a mere conduit
or intermediary, procuring the medical records in order to
pass them along for plaintiff’s “personal, family or
household” use. Rather, the medical records were sought
principally so that the law firm itself could engage in its
own business or commercial enterprise, namely, the evaluation
and pursuit of legal avenues to procure financial rewards and
other relief for its client. While there will sometimes be a
fine line between activities within the scope of the MCPA and
those beyond its coverage, we believe that the activities in
question here are too indirectly related to plaintiff’s
“personal, family, or household” use to fall within the act.
III
We hold that a claim for damages based upon a law firm’s
request for the medical records of a client it is representing
in litigation cannot be sustained under the MCPA. Such a
claim fails as a matter of law because obtaining medical
records for the purpose of litigation is not “primarily for
personal, family, or household use,” as required by the act.
Because plaintiff’s claim cannot be sustained under the MCPA
as a matter of law, this Court need not address defendant’s
remaining arguments on appeal.
We reverse in part the judgment of the Court of Appeals
and reinstate the order of the circuit court. The Court of
Appeals erred, for the reasons stated above, in permitting
7
plaintiff to go forward with his MCPA and accompanying
concert-of-action claims. The decision of the Court of
Appeals is otherwise affirmed. Plaintiff’s application for
leave to appeal as cross-appellant is denied.4
Maura D. Corrigan
Michael F. Cavanagh
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
4
The motion by the Auto Club Insurance Association to
file a brief amicus curiae is granted.
8
S T A T E O F M I C H I G A N
SUPREME COURT
WILLIAM SLOBIN, personal
representative of the estate of
MARTIN SLOBIN,
Plaintiff-Appellee,
Cross-Appellant,
v No. 122063
HENRY FORD HEALTH CARE,
Defendant-Appellant
Cross-Appellee.
___________________________________
KELLY, J. (dissenting).
I disagree with the majority's conclusion that
plaintiff's medical records were ordered for a nonpersonal
purpose. Though the records were acquired by plaintiff's
attorneys, this alone should not preclude the application of
the Michigan Consumer Protection Act (MCPA), MCL 445.901 et
seq.
The attorney-client relationship is generally governed by
agency principles. Friedman v Dozorc, 412 Mich 1, 75; 312
NW2d 585 (1981) ("Attorneys are the agents who provide the
necessary expertise for clients who wish to litigate their
rightful claims.") (Opinion of Blair Moody, Jr., J.). Here,
Goren & Goren, P.C., sought plaintiff's medical records while
acting in its representative capacity and with plaintiff's
consent. Under agency theory, the request by the law firm to
defendant is treated as having been made by plaintiff to
defendant.1
Plaintiff, through his attorney-agent, requested the
medical records for an evaluation of his injuries in
connection with a slip-and-fall lawsuit against a shopping
center. Through this lawsuit, plaintiff sought to restore
himself to his preinjury status. Plaintiff did not bring the
lawsuit as part of a commercial dispute. Rather he brought it
to recover for injury to his person. I would hold that this
request was personal in nature, falling within the purview of
the MCPA.
Accordingly, I agree with Judges White and Wilder of the
Court of Appeals, and I would remand the case to the trial
court for consideration of the alleged MCPA violation.
Marilyn Kelly
1
1 Restatement Agency 2d (1958), ch 6, § 147, p 361,
states:
§ 147 Inference That Principal Is a Party;
Simple Contracts
Unless otherwise agreed, a disclosed or
partially disclosed principal is a party to a
contract, if not negotiable or sealed, made by his
agent within his authority.
2
S T A T E O F M I C H I G A N
SUPREME COURT
WILLIAM SLOBIN, Personal
Representative of the ESTATE
OF MARTIN SLOBIN,
Plaintiff-Appellee,
Cross-Appellant,
v No. 122063
HENRY FORD HEALTH CARE,
Defendant-Appellant,
Cross-Appellee.
________________________________
WEAVER, J. (dissenting).
I would grant leave to appeal and not decide this case
without oral argument.
Elizabeth A. Weaver
Slobin v. Henry Ford Health Care
Court: Michigan Supreme Court
Date filed: 2003-07-23
Citations: 666 N.W.2d 632, 469 Mich. 211
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