Carolyn Moya v. Healthport Technologies, LLC

2017 WI 45

SUPREME COURT OF WISCONSIN
CASE NO.: 2014AP2236
COMPLETE TITLE: Carolyn Moya,
Plaintiff-Respondent-Petitioner,
v.
Aurora Healthcare, Inc. and Healthport
Technologies, LLC,
Defendants-Appellants.

REVIEW OF A DECISION OF THE COURT OF APPEALS
366 Wis. 2d 541, 874 N.W. 2d 336
(2016 WI App 5 – Published)

OPINION FILED: May 4, 2017
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: October 20, 2016

SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Milwaukee
JUDGE: Karen E. Christenson

JUSTICES:
CONCURRED:
DISSENTED: ZIEGLER, J. dissents (opinion filed).
NOT PARTICIPATING: BRADLEY, R. G., J. and KELLY, J. did not
participate.

ATTORNEYS:
For the plaintiff-respondent-petitioners, there was a brief
by Robert J. Welcenbach and Welcenbach Law Offices, S.C.,
Milwaukee, and oral argument by Robert J. Welcenbach.

For the defendants-appellants, there was a brief by John
Franke, Daniel A. Manna and Gass, Weber and Mullins, LLC,
Milwaukee, and oral argument by John Franke.
 2017 WI 45
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2014AP2236
(L.C. No. 13-CV-2642)

STATE OF WISCONSIN : IN SUPREME COURT

Carolyn Moya,

Plaintiff-Respondent-Petitioner,

v.
FILED
Aurora Healthcare, Inc. and Healthport MAY 4, 2017
Technologies, LLC,
Diane M. Fremgen
Clerk of Supreme Court
Defendants-Appellants.

REVIEW of a decision of the Court of Appeals. Reversed and

remanded for further proceedings.

¶1 MICHAEL J. GABLEMAN, J. This is a review of a

published decision of the court of appeals that reversed the

Milwaukee County circuit court's1 denial of Aurora Healthcare,

Inc. and Healthport Technologies, LLC's (collectively referred

to as "Healthport") motion for summary judgment and remanded the

case with directions to grant Healthport's motion for summary

1
The Honorable Karen E. Christenson presiding.
 No. 2014AP2236

judgment. Moya v. Aurora Healthcare, Inc., 2016 WI App 5, 366

Wis. 2d 541, 874 N.W.2d 336.

¶2 Today, we are asked to interpret the meaning of the

phrase "person authorized by the patient" in Wis. Stat.

§ 146.83(3f)(b)4.-5. (2013-14),2 which exempts a "patient or a

person authorized by the patient" from paying certification

charges and retrieval fees for obtaining copies of the patient's

health care records. More particularly, we are asked to

determine whether an attorney whose client authorized him via a

HIPAA3 release form to obtain her health care records may benefit

from this fee exemption. Because the phrase "person authorized

by the patient" is defined in Wis. Stat. § 146.81(5) to include

"any person authorized in writing by the patient," we hold that

an attorney authorized by his or her client in writing via a

HIPAA release form to obtain the client's health care records is

a "person authorized by the patient" under Wis. Stat.

§ 146.83(3f)(b)4.-5. and is therefore exempt from certification

charges and retrieval fees under these subdivisions.
Consequently, the decision of the court of appeals is reversed,

and the case is remanded for further proceedings consistent with

this opinion.

2
All subsequent references to the Wisconsin Statutes are to
the 2013-14 version unless otherwise indicated.
3
HIPAA stands for Health Insurance Portability and
Accountability Act. A HIPAA release form is a type of form
wherein a patient consents to the release of his or her health
care information to a third party.

2
 No. 2014AP2236

¶3 We begin with a brief factual background and

description of the procedural history. We then set forth the

standard of review and the relevant rules for statutory

interpretation. We then conclude that Carolyn Moya's ("Moya")

attorney is a "person authorized by the patient" under Wis.

Stat. § 146.83(3f)(b)4.-5. and is therefore exempt from the

certification charge and retrieval fee authorized by that

statute. Next, we address Healthport's arguments that the

doctrines of voluntary payment and waiver bar Moya's claim.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

A. The Statutes Governing Access to Health Care Records

¶4 Access to patient health care records is governed by

Wis. Stat. § 146.83. Under subsec. (3f), a health care provider

shall, subject to exceptions that are inapplicable here, provide

copies of a patient's health care records "if a person requests

copies of a patient's health care records, provides informed

consent, and pays the applicable fees under par. (b)."

§ 146.83(3f)(a).
¶5 Pursuant to para. (b), health care providers may

impose certain costs on the person requesting health care

records under para. (a):

(b) Except as provided in sub. (1f), a health
care provider may charge no more than the total of all
of the following that apply for providing the copies
requested under par. (a):

1. For paper copies: $1 per page for the first
25 pages; 75 cents per page for pages 26 to 50; 50
cents per page for pages 51 to 100; and 30 cents per
page for pages 101 and above.

3
 No. 2014AP2236

2. For microfiche or microfilm copies, $1.50 per
page.

3. For a print of an X-ray, $10 per image.

4. If the requester is not the patient or a
person authorized by the patient, for certification of
copies, a single $8 charge.

5. If the requester is not the patient or a
person authorized by the patient, a single retrieval
fee of $20 for all copies requested.

6. Actual shipping costs and any applicable
taxes.
Wis. Stat. § 146.83(3f)(b) (emphasis added). According to subd.

4. and subd. 5., the patient and a person authorized by the

patient are exempt from the certification charge and retrieval

fee. This statute, though, does not provide a definition for a

"person authorized by the patient."

¶6 Instead, a "person authorized by the patient" is

defined in Wis. Stat. § 146.81(5) as

the parent, guardian, or legal custodian of a minor
patient, as defined in s. 48.02 (8) and (11), the
person vested with supervision of the child under s.
938.183 or 938.34 (4d), (4h), (4m), or (4n), the
guardian of a patient adjudicated incompetent in this
state, the person representative, spouse, or domestic
partner under ch. 770 of a deceased patient, any
person authorized in writing by the patient or a
health care agent designated by the patient as a
principal under ch. 155 if the patient has been found
to be incapacitated under s. 155.05 (2), except as
limited by the power of attorney for health care
instrument. If no spouse or domestic partner survives
a deceased patient, "person authorized by the patient"
also means an adult member of the deceased patient's
immediate family, as defined in s. 632.895 (1)(d). A
court may appoint a temporary guardian for a patient
believed incompetent to consent to the release of
records under this section as the person authorized by

4
 No. 2014AP2236

the patient to decide upon the release of records, if
no guardian has been appointed for the patient.
(Emphasis added). Because this definition uses the disjunctive

"or," see Hull v. State Farm Mut. Auto. Ins., 222 Wis. 2d 627,

638, 586 N.W.2d 863 (1998) ("'[O]r' should be interpreted

disjunctively."), in order to be a person authorized by the

patient under Wis. Stat. § 146.83(3f)(b)4.-5., and therefore

enjoy exemption from the certification charge and retrieval fee,

a person must fall into only one of the above categories of

persons. One of the categories in the above definition is "any

person authorized in writing by the patient," and it is this

category on which Moya relies in arguing that her attorney is a

"person authorized by the patient" under § 146.83(3f)(b)4.-5.

B. Moya's Class Action Lawsuit

¶7 This case comes to us by way of a class action lawsuit

filed by Moya on behalf of not only herself but all other

similarly situated persons who have been billed the

certification charge and retrieval fee by Healthport for

obtaining their own healthcare records. The class action arose
from Moya's personal injury claim4 in which Moya hired Welcenbach

Law Offices, S.C. to represent her and the law firm had to pay

the certification charge and retrieval fee, despite the fact

that Moya had authorized the law firm in writing to obtain those

records.

4
Moya's personal injury claim arose from a car accident in
2011 from which she sustained injuries. This claim has since
been settled.

5
 No. 2014AP2236

¶8 Moya authorized her attorney, Robert Welcenbach, to

obtain her health care records by signing HIPAA release forms

giving to Welcenbach Law Offices, S.C. "authoriz[ation] to

receive [her] health information."

¶9 Atty. Welcenbach subsequently submitted requests for

Moya's health care records,5 and Healthport, when fulfilling the

requests, imposed certification charges and retrieval fees

pursuant to Wis. Stat. § 146.83(3f)(b)4.-5. Atty. Welcenbach

paid the certification charges and retrieval fees and passed the

associated costs to Moya by deducting the costs from the

settlement proceeds resulting from her personal injury claim.6

¶10 At the time Healthport invoiced Atty. Welcenbach, he

paid the costs, and he did not specifically dispute them.

However, he had on multiple previous occasions disputed the

imposition of such costs in other cases.

5
Atty. Welcenbach submitted his request to Moya's health
care provider, Aurora Healthcare, Inc. ("Aurora"), but Aurora
and Healthport have an agreement whereby Healthport handles
Aurora's health care records requests.
6
The total deducted from Moya's settlement proceeds for
these costs was $294.70.

Contrary to the assertion made by the dissent, the fact
that Atty. Welcenbach passed these costs along to Moya was not a
factor in arriving at our conclusion that Atty. Welcenbach is a
person authorized by the patient for purposes of Wis. Stat.
§ 146.83(3f)(b)4.-5. See dissent, ¶62 n.3. Our determination
that Atty. Welcenbach is a person so authorized is derived from
our application of the plain language of the statute and nothing
more.

6
 No. 2014AP2236

¶11 In response to Healthport's imposition of the

certification charges and retrieval fees, Moya filed this class

action lawsuit. She argues that Healthport violated Wis. Stat.

§ 146.83(3f)(b)4.-5. when it imposed the certification charges

and retrieval fees because her attorney is a "person authorized

by the patient," thereby exempting her attorney from paying the

certification charges and retrieval fees.

¶12 Healthport moved to dismiss Moya's complaint for

failure to state a claim, and the circuit court7 denied

Healthport's motion. Healthport filed an answer, and the

parties underwent limited discovery. After the limited

discovery, Healthport filed a motion for summary judgment asking

the circuit court to dismiss Moya's claim with prejudice. The

circuit court8 denied Healthport's motion. Healthport filed a

motion for reconsideration, and the circuit court9 again denied

Healthport's motion.

¶13 Healthport filed an interlocutory appeal, and the

court of appeals reversed the circuit court's denial of
Healthport's motion for summary judgment and remanded the case

with instructions to grant Healthport's motion. Moya, 366

Wis. 2d 541, ¶1. The court of appeals determined that Moya's

attorney was not a "person authorized by the patient" and

7
The Honorable William W. Brash III presiding.
8
The Honorable Karen E. Christenson presiding.
9
The Honorable Pedro A. Colon presiding.

7
 No. 2014AP2236

therefore Healthport could impose the certification charges and

retrieval fees on Moya's attorney. Id., ¶16. Judge Kessler

dissented stating that she would uphold the circuit court's

denial of Healthport's motion for summary judgment and would

conclude that Healthport could not impose the certification

charge and retrieval fee. Id., ¶¶28-29 (Kessler, J.,

dissenting).

¶14 Moya petitioned this court for review, which we

granted in order to determine whether her attorney is a "person

authorized by the patient" and thus exempt from paying the

certification charge and the retrieval fee found in Wis. Stat.

§ 146.83(3f)(b)4.-5.

II. STANDARD OF REVIEW

¶15 "Whether the circuit court properly granted summary

judgment is a question of law that this court reviews de novo."

Racine County v. Oracular Milwaukee, Inc., 2010 WI 25, ¶24, 323

Wis. 2d 682, 781 N.W.2d 88 (quoting Hocking v. City of

Dodgeville, 2009 WI 70, ¶7, 318 Wis. 2d 681, 768 N.W.2d 552).
Summary judgment must be granted "if the pleadings, depositions,

answers to interrogatories, and admissions on file, together

with the affidavits, if any, show that there is no genuine issue

as to any material fact and that the moving party is entitled to

a judgment as a matter of law." Wis. Stat. § 802.08(2). In

making this determination, this court applies a two-step test.

Green Spring Farms v. Kersten, 136 Wis. 2d 304, 314–15, 401

N.W.2d 816 (1987). Under the first step, this court asks if the
plaintiff stated a claim for relief. Id. at 315. Under the
8
 No. 2014AP2236

second step, this court applies the summary judgment statute and

asks if any factual issues exist that preclude summary judgment.

Id.

¶16 "We review questions of statutory interpretation and

application independently, but benefiting from the discussions

of the circuit court and the court of appeals." State v.

Grunke, 2008 WI 82, ¶10, 311 Wis. 2d 439, 752 N.W.2d 769.

III. DISCUSSION

A. The Rules of Statutory Interpretation

¶17 "[T]he purpose of statutory interpretation is to

determine what the statute means so that it may be given its

full, proper, and intended effect." State ex rel. Kalal v.

Circuit Court for Dane Cty., 2004 WI 58, ¶44, 271 Wis. 2d 633,

681 N.W.2d 110. Statutory interpretation begins with the text

of the statute. Id., ¶45 (quoting Seider v. O'Connell, 2000 WI

76, ¶43, 236 Wis. 2d 211, 612 N.W.2d 659). If the text of the

statute is plain and unambiguous, our inquiry stops there. Id.

(quoting Seider, 236 Wis. 2d 211, ¶43).
¶18 If the text is ambiguous, we must look beyond the text

to other, extrinsic sources of information, such as legislative

history, to interpret the statute. Id., ¶46. "[A] statute is

ambiguous if it is capable of being understood by reasonably

well-informed persons in two or more senses." Id., ¶47. Even

without ambiguity, though, we may consult extrinsic sources to

confirm our understanding of the plain language of a statute.

Id., ¶51.

9
 No. 2014AP2236

¶19 "Statutory language is given its common, ordinary, and

accepted meaning, except that technical or specially-defined

words or phrases are given their technical or special

definitional meaning." Id., ¶45. We also look to the context:

"[S]tatutory language is interpreted in the context in which it

is used; not in isolation but as part of a whole; in relation to

the language of surrounding or closely-related statutes; and

reasonably, to avoid absurd or unreasonable results." Id., ¶46.

B. Interpretation of "Any Person Authorized in Writing by the

Patient"

¶20 Moya argues that "any person authorized in writing by

the patient" in Wis. Stat. § 146.81(5) is "defined broadly by

the legislature" and that the plain meaning of the statutory

language requires nothing more than a person and a written

authorization from the patient. Thus, Moya's attorney qualifies

as a "person authorized in writing by the patient" simply

because he is a person and has a written authorization from Moya

in the nature of the HIPAA release form. Healthport, on the
other hand, argues that the context of § 146.81(5) indicates

that the person authorized in writing by the patient must (in

addition to having authorization to obtain health care records)

also be authorized to make health care decisions on behalf of

the patient. In response to this argument, Moya says Healthport

can achieve this definition only by adding its own language to

the statute.

¶21 After examining the language of the statute and
applying the well-established rules of statutory interpretation,
10
 No. 2014AP2236

we agree with Moya. The context of the statutory definition of

"person authorized by the patient" provided in § 146.81(5)

indicates that "any person authorized in writing by the patient"

is a stand-alone category, separate and apart from the remaining

categories, containing no limitations beyond those expressly

written. We base our determination in this regard on the

punctuation and conjunctions given in the statute and see these

categories as follows:

(1) "[T]he parent, guardian, or legal custodian of a minor
patient, as defined in s. 48.02 (8) and (11)";

(2) "the person vested with supervision of the child under
s. 938.138 or 938.34 (4d), (4h), (4m), or (4n)";

(3) "the guardian of a patient adjudicated incompetent in
this state";

(4) "the personal representative, spouse, or domestic
partner under ch. 770 of a deceased patient";

(5) "any person authorized in writing by the patient or";

(6) "a health care agent designated by the patient as a
principal under ch. 155 if the patient has been found
to be incapacitated under s. 155.05(2), except as
limited by the power of attorney for health care
instrument."

(7) "If no spouse or domestic partner survives a deceased
patient, 'person authorized by the patient' also means
an adult member of the deceased patient's immediate
family, as defined in s. 632.895(1)(d)."

(8) "A court may appoint a temporary guardian for a
patient believed incompetent to consent to the release
of records under this section as the person authorized
by the patient to decide upon the release of the
records, if no guardian has been appointed for the
patient."
Wis. Stat. § 146.81(5) (emphasis added).

11
 No. 2014AP2236

¶22 Thus, the phrase "any person authorized in writing by

the patient" must be interpreted as its own category of persons

authorized by the patient. The statutory language is

unambiguous in that it requires only a person with a written

authorization from the patient. The plain meaning of the

statute does not require that the authorization be an

authorization to make health care decisions on behalf of the

patient. Thus, when the phrase "person authorized by the

patient" is used in Wis. Stat. § 146.83(3f)(b)4.-5. in the

context of obtaining copies of health care records, it includes

"any person authorized in writing by the patient" to obtain such

records. The definition requires no additional authorization

for such person to qualify for the exemption from the

certification charge and retrieval fee.

¶23 Healthport argues that this conclusion is inconsistent

with the general principle that we interpret an item in a list

consistently with the remaining items in the list. See State v.

Popenhagen, 2008 WI 55, ¶46, 309 Wis. 2d 601, 749 N.W.2d 611.
From this general principle, Healthport urges us to conclude

that "any person authorized in writing by the patient" must have

the ability to make health care decisions on the patient's

behalf. Healthport's argument runs as follows: Because each of

the other categories of persons in the definition of "person

authorized by the patient" in Wis. Stat. § 146.81(5) has the

authority to make health care decisions on behalf of the

patient, the fifth category listed above must have that

12
 No. 2014AP2236

authority as well in order to qualify as a "person authorized by

the patient."

¶24 This argument is unpersuasive in light of the relevant

statutory context. Examining the various categories in the

definition of "person authorized by the patient" in Wis. Stat.

§ 146.81(5) demonstrates that the legislature did not specify

that each must have the authority to make health care decisions

for the patient. Instead, the legislature placed varying

parameters on each distinct category. For example, in the first

category, the legislature chose to limit it to the parent,

guardian, or legal custodian of a minor patient. Therefore, a

parent, guardian, or legal custodian of a minor is automatically

a "person authorized by the patient" wherever that phrase

appears in Wis. Stat. §§ 146.81-.84; nothing else is necessary

to qualify and no other limitation is imposed. Other

categories, however, are narrower. For example, the eighth

category is specifically limited to a temporary guardian

appointed by a court to "decide upon the release of records" for
an incompetent patient. At least for this category, having

specific authorization to make health care decisions for the

incompetent patient is a requirement.

¶25 We cite these instances of circumscription within the

statute not as demonstrations of the legislature's collective

facility with language but, rather, to bolster our understanding

that, when the legislature chooses to say "any person authorized

in writing by the patient," we must interpret these words
without the kind of limitation proposed by Healthport. Cf.
13
 No. 2014AP2236

Indus. to Indus., Inc. v. Hillsman Modular Molding, Inc., 2002

WI 51, ¶19, 252 Wis. 2d 544, 644 N.W.2d 236. Put simply, had

the legislature intended to place parameters of the kind

Healthport suggests on a person authorized in writing by the

patient, "it would have done so." Id. It did not, and so we do

not.10

¶26 Healthport argues that interpreting the category "any

person authorized in writing by the patient" without the

additional requirement that the authorization be for making

health care decisions creates chaos and inconsistency throughout

the statutory scheme. Without constancy as to what the

authorization must be for, Healthport argues that the definition

of a "person authorized by the patient" would change each time

it is used throughout the statute. However, it is enough to

refute this argument to note that, contrary to what Healthport

argues, the definition of a "person authorized by the patient"

remains constant throughout the statutes governing access to

health care records. Instead of creating chaos, permitting the
specific nature of the authorization allows for flexibility. In

10
According to the dissent, such an interpretation is one
done in a vacuum, not taking into account the context in which
the words are written. E.g., dissent, ¶41. However,
interpreting the text to also contain the words "to consent to
the release of the patient's health care records" ignores the
immediate context of the text we are asked to interpret here
because it does not take into account the distinction between
"any person authorized in writing by the patient" and the other
categories of persons used in the statute.

14
 No. 2014AP2236

all cases, we simply look to the written authorization to

determine what the patient has authorized the person to do.

¶27 Because the definition of "any person authorized in

writing by the patient" does not specify what the person must be

authorized to do, the written authorization necessary for an

attorney to qualify will depend on the function the attorney

seeks to perform. In other words, why an attorney might need

written authorization may be different in different contexts.

For example, to perform the function of a "person authorized by

the patient" in some contexts, the attorney might need

authorization to make certain decisions on behalf of the

patient. See, e.g., Wis. Stat. § 146.82(1) (informed consent to

release records may be given by a "person authorized by the

patient"). But in other contexts, the attorney would only need

authorization to receive copies of health care records. That is

the case in Wis. Stat. § 146.83(3f), the statute governing

requests for copies of such records. Regardless of the context,

what mattered to the legislature in defining "person authorized
by the patient" to include "any person authorized in writing by

the patient" is that the person does have written authorization

from the patient to perform the relevant function.

¶28 Past iterations of the statute support our conclusion

that the plain meaning of "any person authorized in writing by

the patient" is exactly what it says. See County of Dane v.

LIRC, 2009 WI 9, ¶27, 315 Wis. 2d 293, 759 N.W.2d 571 (quoting

Richards v. Badger Mut. Ins., 2008 WI 52, ¶22, 309 Wis. 2d 541,
749 N.W.2d 581) (statutory context includes past iterations of
15
 No. 2014AP2236

the statute). When the legislature first enacted the statute in

1979, Wis. Stat. § 146.81(5) defined "person authorized by the

patient" as

the parent, guardian or legal custodian of a minor
patient, as defined in s. 48.02 (9) and (11), the
guardian of a patient adjudged incompetent, as defined
in s. 880.01 (3) and (4), the personal representative
or spouse of a deceased patient or any person
authorized in writing by the patient.
In this version of the statute, "any person authorized in

writing by the patient," as evidenced by the use of "or," is the

last category of persons considered a "person authorized by the

patient." We see from our reading of the 1979 statute that "any

person authorized in writing by the patient" has always been a

distinct category of persons——one without limitation other than

a requirement of authorization in writing from the patient.

¶29 Nevertheless, Healthport argues that a 2014 amendment

to the statutes governing health care records, Wis. Stat.

§ 146.83(1b), provides context that shows that the legislature

intended to exclude attorneys from the definition of a "person

authorized by the patient." The 2014 addition of § 146.83(1b)

states, "Notwithstanding s. 146.81(5), in this section a 'person

authorized by the patient' includes an attorney appointed to

represent the patient under s. 977.08[11] if that attorney has

written informed consent from the patient to view and obtain

copies of the records." According to Healthport, the

11
Wisconsin Stat. § 977.08 relates to the appointment of a
state public defender.

16
 No. 2014AP2236

legislature's use of "[n]otwithstanding" shows that the

legislature, in § 146.83(1b), included a certain type of

attorney——public defenders——as a person authorized by the

patient to receive health care records in spite of a general

exclusion of attorneys from Wis. Stat. § 146.81(5).

¶30 While the legislature may have intended to expressly

include public defenders, we decline Healthport's implicit

invitation to add limiting language to Wis. Stat. § 146.81(5).

The legislature, with its use of "any person," chose not to

place a limit on who could be authorized in writing by the

patient under § 146.81(5), and we give effect to the enacted

text. See Bruno v. Milwaukee County, 2003 WI 28, ¶14, 260

Wis. 2d 633, 660 N.W.2d 656 (refusing to add additional

requirements to the definition of "retirement" because those

additional requirements were not mentioned in the text). And

more to the point, nothing about the express inclusion of public

defenders leads us to conclude the legislature intended to

exclude other attorneys.12

12
Healthport has failed to establish that the doctrine of
expressio unius est exclusio alterius (the expression of one
thing is the exclusion another) applies here because nothing
indicates that the legislature considered attorneys other than
public defenders when enacting the language of Wis. Stat.
§ 146.83(1b). See Wis. Citizens Concerned for Cranes & Doves v.
DNR, 2004 WI 40, ¶17 n.11, 270 Wis. 2d 318, 677 N.W.2d 612
("This rule may be applied only where there is some evidence
that the legislature intended it to apply.").

(continued)
17
 No. 2014AP2236

¶31 In sum, Moya's attorney qualifies as a "person

authorized by the patient" because he is a person, he has a

written authorization from Moya via the HIPAA release form, and

Moya, the patient, signed the HIPAA release form to provide her

attorney the authorization to receive her health care records.

Therefore, as a person authorized by the patient, Moya's

attorney is exempt from the certification charges and retrieval

fees Healthport imposed under Wis. Stat. § 146.83(3f)(b)4.-5.

C. The Doctrine of Voluntary Payment Does Not Apply

¶32 Healthport argues that the doctrine of voluntary

payment bars Moya's class action lawsuit and thereby entitles

Healthport to summary judgment; however, we conclude that the

doctrine of voluntary payment does not apply.

¶33 "The voluntary payment doctrine places upon a party

who wishes to challenge the validity or legality of a bill for

payment the obligation to make the challenge either before

voluntarily making payment, or at the time of voluntarily making

payment." Putnam v. Time Warner Cable of Se. Wis., Ltd. P'ship,
2002 WI 108, ¶13, 255 Wis. 2d 447, 649 N.W.2d 626. "[T]he

voluntariness in the doctrine goes to the willingness of a

The dissent also seems to be looking for "attorneys" to be
expressly and specifically listed persons authorized by the
patient. See, e.g., dissent, ¶42. However, if we are to look
for such narrow categories, who then would qualify? The answer
is no one because no category of persons is so specifically
listed in the statute.

18
 No. 2014AP2236

person to pay a bill without protest as to its correctness or

legality." Id., ¶15.

¶34 It is axiomatic that we give effect to the

legislature's expressed intent when we interpret statutes.

Kalal, 271 Wis. 2d 633, ¶44. Here, we determined that the

legislature's expressed intent that a person with a written

authorization from a patient does not have to pay the

certification charge or retrieval fee for obtaining health care

records. Thus, "[a]pplication of the common law voluntary

payment doctrine would undermine the manifest purposes of [Wis.

Stat. § 146.83(3f)]." MBS-Certified Pub. Accountants, LLC v.

Wis. Bell, Inc., 2012 WI 15, ¶4, 338 Wis. 2d 647, 809

N.W.2d 857. Consequently, we cannot apply it in this case to

bar Moya's claim.

D. The Doctrine of Waiver Does Not Apply

¶35 Healthport also argues that Moya's class action

lawsuit is barred by the doctrine of waiver. We disagree.

¶36 "Waiver has been defined as a voluntary and
intentional relinquishment of a known right." Attoe v. State

Farm Mut. Auto. Ins., 36 Wis. 2d 539, 545, 153 N.W.2d 575

(1967). Waiver can be done through conduct. Id.

¶37 Healthport argues that Moya waived her ability to

obtain her health care records at a lower cost because she chose

to authorize her attorney to obtain her health care records

instead of requesting them herself, thereby voluntarily and

intentionally relinquishing her right not to be charged the
certification charge and retrieval fee. As with the application
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of the doctrine of voluntary payment, we decline to apply the

doctrine of waiver to subvert the legislature's intent. To

conclude that the doctrine of waiver applies would require us to

conclude that Moya's attorney has to pay the certification

charge and retrieval fee. However, we conclude that Moya's

attorney does not have to pay the certification charge or

retrieval fee because he is a "person authorized by the

patient." Thus, the doctrine of waiver does not apply to bar

Moya's class action lawsuit.

IV. CONCLUSION

¶38 Because the phrase "person authorized by the patient"

is defined in Wis. Stat. § 146.81(5) to include "any person

authorized in writing by the patient," we hold that an attorney

authorized by his or her client in writing via a HIPAA release

form to obtain the client's health care records is a "person

authorized by the patient" under Wis. Stat. § 146.83(3f)(b)4.-5.

and is therefore exempt from certification charges and retrieval

fees under those subdivisions.
By the Court.—The decision of the court of appeals is

reversed and the case is remanded for proceedings consistent

with this opinion.

¶39 REBECCA GRASSL BRADLEY and DANIEL KELLY, JJ., did not

participate.

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¶40 ANNETTE KINGSLAND ZIEGLER, J. (dissenting). The

question before this court is whether a personal injury attorney

who obtains his or her client's written consent to receive

copies of the client's health care records is a "person

authorized by the patient" under Wis. Stat. § 146.83(3f)(b),

such that the attorney need not pay certification and retrieval

fees when requesting copies of the records from a health care

provider. The circuit court concluded that such an attorney is

exempt from the fees as a "person authorized by the patient."

The court of appeals in examining the same statutory language

answered this question in the negative, concluding that a

"person authorized by the patient" within the meaning of Wis.

Stat. §§ 146.81(5) and 146.83(3f)(b) is a person who has "the

power to consent to the release of the patient's records," not a

person who merely has the power to receive those records. Moya

v. Aurora Healthcare, Inc., 2016 WI App 5, ¶16, 366 Wis. 2d 541,

874 N.W.2d 336 (emphasis added). This court reverses that court

of appeals' determination today purportedly because the language
is clear. I write because when utilizing traditional methods of

statutory interpretation, examining the text, its context and

construction, the plain meaning demonstrates that "person

authorized by the patient" has a less expansive meaning than my

colleagues have adopted.

¶41 The court concludes that an attorney authorized by his

or her client in writing to obtain the client's health care

records is a "person authorized by the patient" under Wis. Stat.
§§ 146.81(5) and 146.83(3f)(b). In so doing it explains that it

1
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is relying on the "plain meaning" of the statute. I acknowledge

that the interpretation of the statutes adopted by this court is

defensible if one only looks at those words in a vacuum. The

conclusion of the court of appeals, however, is also supported

by the text. How do we know which interpretation is correct?

Each interpretation relies on the language of the statute, yet

the court of appeals and this court reach opposite conclusions.

I endeavor to wade through a more thorough statutory analysis in

order to reach a conclusion.

¶42 As a practical matter, it certainly makes sense that

the legislature might choose to exempt personal injury attorneys

from the challenged fees. These attorneys act as advocates for

their clients and perhaps should be able to obtain the records

without the fee. However, these lawyers are not listed in Wis.

Stat. § 146.81(5), the statute that defines "person authorized

by the patient," nor are they exempt under Wis. Stat.

§ 146.83(1b), whereby the legislature determined that public

defenders need not pay the fee. These lawyers do not fall into
the class of persons listed in § 146.81(5) as they are not

otherwise legally poised to essentially become the decision-

maker for the patient when the patient cannot legally act on his

or her behalf. Section 146.81(5) defines "person authorized by

the patient" in part to be:

[T]he parent, guardian, or legal custodian of a minor
patient, as defined in s. 48.02(8) and (11), the
person vested with supervision of the child under
s. 938.183 or 938.34(4d), (4h), (4m), or (4n), the
guardian of a patient adjudicated incompetent in this
state, the personal representative, spouse, or
domestic partner under ch. 770 of a deceased patient,
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any person authorized in writing by the patient or a
health care agent designated by the patient as a
principal under ch. 155 if the patient has been found
to be incapacitated under s. 155.05(2), except as
limited by the power of attorney for health care
instrument.
§ 146.81(5). Notably absent in this provision are lawyers who

advocate on a patient's behalf in a lawsuit.1 While it may make

sense to exempt these lawyers from paying fees, the choice is

not the court's to make; it is within the province of the

legislature. I must examine the text of the statute at issue

using fundamental tools of statutory construction to determine

which of two interpretations of the phrase "person authorized by

the patient" was intended by the legislature; as put by Aurora

Healthcare, Inc., and Healthport Technologies, LLC

("Healthport"), these two interpretative options are: (1) "any

person authorized in writing by the patient to obtain the

patient's health care records"; or (2) "any person authorized in

writing by the patient to consent to the release of the

patient's health care records." In so doing I look to the

surrounding text and examine that text in light of the canons of

construction, not just part of the statutory text, in a vacuum.

It is . . . a solemn obligation of the judiciary to
faithfully give effect to the laws enacted by the
legislature, and to do so requires a determination of
statutory meaning. Judicial deference to the policy
choices enacted into law by the legislature requires
that statutory interpretation focus primarily on the
1
Those attorneys advocate on behalf of the client/patient
and may receive authority from a client to, for example, settle
a case; importantly, however, such attorneys, unlike those
persons in Wis. Stat. § 146.81(5), are not standalone decision-
makers who act with or without the patient's consent.

3
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language of the statute. We assume that the
legislature's intent is expressed in the statutory
language. . . . It is the enacted law, not the
unenacted intent, that is binding on the public.
Therefore, the purpose of statutory interpretation is
to determine what the statute means so that it may be
given its full, proper, and intended effect.
State ex rel. Kalal v. Circuit Court for Dane Cty., 2004 WI 58,

¶44, 271 Wis. 2d 633, 681 N.W.2d 110.

¶43 Given the above charge, I write to examine the

statutes at issue and the court's reasoning, considering the

disputed statutory text in context and in light of fundamental

canons of construction. For reasons I will explain, the

interpretation adopted by the court today fails to adhere to

fundamental principles of statutory construction and in fact

renders the overall statutory scheme virtually meaningless.

Ultimately, I would conclude, like the court of appeals, that

the text of the statutes requires a conclusion that Moya's

personal injury attorney is not a "person authorized by the

patient" under Wis. Stat. § 146.83(3f)(b). The lawyer at issue

is not within the definition of "person authorized by the

patient" in Wis. Stat. § 146.81(5) nor is he or she exempt from
payment of fees under § 146.83(1b) as are other lawyers. Thus,

I must respectfully dissent.

I

¶44 I begin by setting forth established principles of

statutory interpretation. Statutory interpretation is governed

first and foremost by the principle that "[t]he words of a

governing text are of paramount concern, and what they convey,
in their context, is what the text means." Antonin Scalia &

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 No. 2014AP2236.akz

Bryan A. Garner, Reading Law: The Interpretation of Legal Texts

56 (2012) (denominating this rule the "Supremacy-of-Text

Principle"). Judges should "determin[e] the application of a

governing text to given facts on the basis of how a reasonable

reader, fully competent in the language, would have understood

the text at the time it was issued." Id. at 33. This approach

recognizes that "[t]he law is what the law says," Bank One

Chicago, N.A. v. Midwest Bank & Trust Co., 516 U.S. 264, 279

(1996) (Scalia, J., concurring in part and concurring in the

judgment), and that "[a]n interpreter who bypasses or downplays

the text becomes a lawmaker without obeying the constitutional

rules for making law." Frank H. Easterbrook, Textualism and the

Dead Hand, 66 Geo. Wash. L. Rev. 1119, 1120 (1998).

¶45 Proper statutory interpretation rests on the

fundamental premise that "[n]othing but conventions and contexts

cause a symbol or sound to convey a particular idea." Scalia &

Garner, supra, at xxvii (emphases added).

The enactment of a law is a form of communication
through language——from the law-giver to those affected
by the law, as well as to those who must enforce,
apply, or interpret the law. This sort of
communication is only possible if the participants
have a set of shared practices and conventions that
permit them to convey meaning to each other. At the
most basic level, intelligible communication requires
that both parties attach the same meaning to the same
sounds or signs. Furthermore, we often need to be
able to tell which of several possible meanings is
intended by considering the context in which a word is
used. Our shared practices and conventions also go
beyond word meanings. The rules of grammar and
syntax, for example, represent shared conventions that
assist us in decoding the communications of others.

5
 No. 2014AP2236.akz

John F. Manning & Matthew C. Stephenson, Legislation and

Regulation 222 (2010).

¶46 These twin pillars of interpretation, context and

convention, are indispensable to the functioning of the

judiciary. Convention is sometimes realized in part through the

implementation of certain "canons of construction," which are

"rules of thumb that that help courts determine the meaning of

legislation." Connecticut Nat'l Bank v. Germain, 503 U.S. 249,

253 (1992). A number of these canons will be discussed in more

detail below.

¶47 Context, on the other hand, includes (1) "the purpose

of the text," which must be "gathered only from the text itself,

consistently with the other aspects of its context"; (2) "a

word's historical associations acquired from recurrent patterns

of past usage"; and (3) "a word's immediate syntactic setting——

that is, the words that surround it in a specific utterance."

Scalia & Garner, supra, at 33 (emphasis omitted) (citing

I.A. Richards, Interpretation in Teaching viii (1938)).
¶48 Application of these principles——an unrelenting focus

on the meaning of the text, discovered through a careful

examination of context and the application, where necessary, of

canons of construction——promotes "certainty, predictability,

objectivity, reasonableness, rationality, and regularity, which

are the objects of the skilled interpreter's quest." Id. at 34

(citing Frederick J. de Sloovère, Textual Interpretation of

Statutes, 11 N.Y.U. L.Q. Rev. 538, 541 (1934)). I now turn to

6
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the issue of statutory interpretation at the heart of this

appeal and, in analyzing it, employ this methodology.

II

¶49 Wisconsin Stat. § 146.83(3f)(a) explains that, with

certain exceptions, "if a person requests copies of a patient's

health care records, provides informed consent, and pays the

applicable fees under par. (b), the health care provider shall

provide the person making the request copies of the requested

records." Wis. Stat. § 146.83(3f)(a). Wisconsin Stat.

§ 146.83(3f)(b), in turn, establishes the "applicable fees,"

including, as relevant here, the following two fees: (1) "If the

requester is not the patient or a person authorized by the

patient, for certification of copies, a single $8 charge"; and

(2) "If the requester is not the patient or a person authorized

by the patient, a single retrieval fee of $20 for all copies

requested." Wis. Stat. § 146.83(3f)(b)4.-5. (emphases added).

In this case, Carolyn Moya's ("Moya") personal injury attorney

obtained written consent from Moya to receive copies of her
health care records. Moya claims her attorney is therefore a

"person authorized by the patient" and thus exempt from these

fees.

¶50 "Person authorized by the patient" is defined in Wis.

Stat. § 146.81(5) as follows:

[T]he parent, guardian, or legal custodian of a minor
patient, as defined in s. 48.02(8) and (11), the
person vested with supervision of the child under s.
938.183 or 938.34(4d), (4h), (4m), or (4n), the
guardian of a patient adjudicated incompetent in this
state, the personal representative, spouse, or
domestic partner under ch. 770 of a deceased patient,
7
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any person authorized in writing by the patient or a
health care agent designated by the patient as a
principal under ch. 155 if the patient has been found
to be incapacitated under s. 155.05(2), except as
limited by the power of attorney for health care
instrument. If no spouse or domestic partner survives
a deceased patient, "person authorized by the patient"
also means an adult member of the deceased patient's
immediate family, as defined in s. 632.895(1)(d). A
court may appoint a temporary guardian for a patient
believed incompetent to consent to the release of
records under this section as the person authorized by
the patient to decide upon the release of records, if
no guardian has been appointed for the patient.
§ 146.81(5) (emphasis added).
¶51 Moya and the court rely on the emphasized text for

their conclusion that Moya's attorney fits the definition of

"person authorized by the patient." At the outset, it should be

noted that it is not clear whether the phrase "any person

authorized in writing by the patient" in Wis. Stat. § 146.81(5)

is a standalone category or whether it is connected to the

following phrase, namely "or a health care agent designated by

the patient as a principal under ch. 155 if the patient has been

found to be incapacitated under s. 155.05(2)." § 146.81(5).

Healthport contends that this court need not resolve this issue,

and I agree. As I will demonstrate, whether read as
constituting its own category or read in conjunction with the

phrase that follows it, the phrase "any person authorized in

writing by the patient" does not include Moya's attorney.

¶52 More generally, it is apparent that the mention of

lawyers is completely absent from this statutory definition and,

instead, the categories of individuals in the statute have the
commonality of those people who can legally act and make

8
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decisions when the patient cannot; that is not what a personal

injury lawyer does. Lawyers are not like the other categories

of individuals listed. While lawyers may advocate on behalf of

their clients, they are ultimately subject to their clients'

direction. The categories of individuals in Wis. Stat.

§ 146.81(5), on the other hand, are composed of individuals who

stand in the shoes of a patient and make decisions for the

patient, but are not those who simply advocate for a client at

the client's direction.

III

¶53 Also important is a recognition that, as noted by

Healthport, the definition of "person authorized by the patient"

provided in Wis. Stat. § 146.81(5) does not clearly define the

nature of the "authori[ty]" provided by the patient to the

person authorized by the patient. The circuit court determined

that, for purposes of Wis. Stat. § 146.83(3f)(b), the authority

was the authority to inspect a patient's health care records.

Moya, 366 Wis. 2d 541, ¶4. The court of appeals concluded that
the authority was the authority to consent to the release of a

patient's health care records. Id., ¶16.

¶54 Review of Wis. Stat. § 146.81(5) makes apparent that

the definition of "person authorized by the patient" provided

therein has a common focus on categories of people who are

authorized by law to act as the patient, not just act because

the patient vested them with limited authority to obtain

records. Those included in the statutory definition include
those such as "the parent . . . of a minor patient," for

9
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instance, or "the guardian of a patient adjudicated incompetent

in this state," but the statute does not explicitly describe

what type of authority these people possess. § 146.81(5). The

kind of authority vested by law in these people is far different

than the kind of obligations a lawyer takes on in representing a

person in a lawsuit. These people listed are those who could

sign a release that would authorize the lawyer to get the

records. The lawyer, unlike those listed in § 146.81(5), could

not, for example, sign the form on behalf of the patient as all

these individuals could do.

¶55 These observations are relevant to the plain meaning

of "any person authorized in writing by the patient" in Wis.

Stat. § 146.81(5). A person who states "I have been authorized

in writing" has said nothing about what she has been authorized

to do. For example, a person who has been authorized in writing

to speak on a patient's behalf is technically a "person

authorized in writing by the patient," see § 146.81(5), but no

one would argue that this type of person would fulfill the
definition of "person authorized by the patient" in Wis. Stat.

§ 146.83(3f)(b). Those listed in the statute, however, have in

common, for example, the authority vested in them by law. In

sum, examination of the phrase "any person authorized in writing

by the patient" in § 146.81(5) in isolation is not sufficient to

decide this case.

¶56 The court defines the nature of the authority in Wis.

Stat. § 146.81(5) differently depending on in which portion of

10
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chapter 146 that phrase is used.2 So because, in the context of

Wis. Stat. § 146.83(3f), the "person [potentially] authorized by

the patient" is "request[ing] copies of a patient's health care

records," § 146.83(3f)(a), the definition of "person authorized

by the patient" in that portion of the statutes, in the court's

view, is "person authorized by the patient to obtain the

patient's healthcare records" (as long as, pursuant to

§ 146.81(5), that authorization is written authorization). But

any person who obtains records this way would need written

authorization.

¶57 In other words, the court simply concludes that

because Moya's attorney was "authorized in writing" to receive

copies of Moya's health care records, he is a "[p]erson

authorized by the patient" as defined in Wis. Stat. § 146.81(5),

which definition applies to the fee portion of the statutory

scheme, Wis. Stat. § 146.83(3f)(b). See § 146.81. That

interpretation possesses the benefit of being uncomplicated, but

that does not mean it is correct. The court's reading fails to
account for a number of important considerations——namely,

significant clues provided by investigation of the statutory

2
Typically, the "[p]resumption of consistent usage" canon
would instruct that "[a] word or phrase is presumed to bear the
same meaning throughout a text." Antonin Scalia & Bryan A.
Garner, Reading Law: The Interpretation of Legal Texts 170
(2012). In the court's defense, however, it may not be
necessarily in violation of that canon because the nature of the
authority, while changing, changes to attend to the purpose of
the specific statute.

11
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context and the application of canons of construction——which

counsel a different reading of the statute.

¶58 More specifically, the court's conclusion falls prey

to a criticism directed at Moya by Healthport:

Although [Moya] repeatedly urges this Court to follow
the "plain language" or "plain meaning" of the
statutory words, she fails to provide a reason why her
proposed interpretation follows from those words.
Instead, [Moya] simply assumes that the legislature
meant to say "any person authorized in writing by the
patient to obtain that patient's health care records."
A plain language argument that simply assumes the
addition of a critical clause is not a plain language
argument at all.
¶59 The truth of the matter is that the statutory phrase

"any person authorized in writing by the patient," viewed alone,

simply does not provide enough information for the court to

reach a conclusion in this case. But statutory interpretation

requires more than simply looking at a set of words in total

isolation. The court must look to something more——the context

of the phrase and applicable canons of constructions——to reach

the correct answer.
¶60 Before discussing how these tools help establish the

plain meaning of this phrase in this statute, I explain how

these tools immediately demonstrate a number of significant

deficits in the court's approach. First, the phrase "person

authorized by the patient" must require more in the context of

Wis. Stat. § 146.83(3f) than the court says it does because,

with a few exceptions, "a person request[ing] copies of a

patient's health care records" under that provision must
additionally "provide[] informed consent" in order to obtain the

12
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records. § 146.83(3f)(a). Informed consent under the statute

"means written consent to the disclosure of information from

patient health care records to an individual, agency, or

organization that includes" specified pieces of information such

as the patient's name and the signature of the patient or the

person authorized by the patient. Wis. Stat. § 146.81(2).

Therefore, under the court's interpretation, nearly every person

who obtains health care records under § 146.83(3f) will, by

nature of the informed consent they must provide, automatically

be a "person authorized by the patient" and thus, virtually no

one will ever pay certification or retrieval fees as called for

by the statute.

¶61 If the court were correct and all one needed to become

a "person authorized by the patient" was informed consent, then

there would be no need for a statutory definition of "person

authorized by the patient." A person possessing informed

consent and a "person authorized by the patient" must therefore

be very different individuals possessing different degrees of
authority. See, e.g., Pawlowski v. Am. Family Mut. Ins. Co.,

2009 WI 105, ¶22, 322 Wis. 2d 21, 777 N.W.2d 67 ("As a basic

rule of statutory construction, we endeavor to give each

statutory word independent meaning so that no word is redundant

or superfluous. When the legislature chooses to use two

different words, we generally consider each separately and

presume that different words have different meanings."). The

reason that both informed consent and separate authorization are
required in this statutory scheme is because the individuals

13
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exempted from the statutory fees at issue are either patients or

those who are essentially the equivalents of patients. The

legislature defined "person authorized by the patient" to mean

individuals that could actually step in and make decisions for

the patient. In contrast, lawyers are advocates but they do not

step in and become the decision-maker; in fact, it is unethical

for them to do so.

¶62 The legislature does not enact a fee statute to

collect no fees. While this seems obvious, I need not look to

legislative history or some unknown possible intent; I need only

look at the words of the statute. And this is where context and

canons of construction provide guidance. It is a "well-

established canon[] of statutory construction" that "[s]tatutory

interpretations that render provisions meaningless should be

avoided." Belding v. Demoulin, 2014 WI 8, ¶17, 352 Wis. 2d 359,

843 N.W.2d 373; see also, e.g., United States v. Tohono O'Odham

Nation, 563 U.S. 307, 315 (2011) ("Courts should not render

statutes nugatory through construction."); Louisville Water Co.
v. Clark, 143 U.S. 1, 12 (1892) ("Any other interpretation of

the act . . . would render it inoperative for the purposes for

which, manifestly, it was enacted."); Kalal, 271 Wis. 2d 633,

¶46 ("Statutory language is read where possible to give

reasonable effect to every word, in order to avoid

surplusage."). The court's approach virtually guts the

14
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possibility of collecting fees and certainly contravenes fairly

basic canons of construction.3

¶63 Another flaw in the court's reading of the relevant

statutes is that the language of Wis. Stat. § 146.81(5) does not

mention lawyers at all but lawyers are exempted in other

sections. "Under the doctrine of expressio unius est exclusio

alterius, 'the express mention of one matter excludes other

similar matters [that are] not mentioned.'" FAS, LLC v. Town of

Bass Lake, 2007 WI 73, ¶27, 301 Wis. 2d 321, 733 N.W.2d 287

(alteration in original) (quoting Perra v. Menomonee Mut. Ins.

Co., 2000 WI App 215, ¶12, 239 Wis. 2d 26, 619 N.W.2d 123). The

legislature was fully capable of adding lawyers to the

3
It is true that Wis. Stat. § 146.82(2) contains a list of
entities that may obtain health care records without informed
consent under certain circumstances, such as (generally
speaking) emergency medical services personnel assisting a
patient, district attorneys prosecuting alleged child abuse, and
courts conducting termination of parental rights proceedings.
See § 146.82(2)(a)2., 11.-11m. I do not find compelling the
argument that the certification and retrieval fees in Wis. Stat.
§ 146.83(3f)(b)4.-5. are reserved for this specialized subset of
requesters. If the legislature had intended such a result, it
could have provided for it much more clearly.

Further, it may well be that these entities share common
characteristics of which the court is not, at this time, fully
aware. For instance, many of the entities listed in this group
seem to possess a public interest component, such that a fee for
health care records would ultimately be transferred to the
taxpayer. Other entities in this group would seemingly include
health care providers themselves using health care records for
internal matters. See, e.g., Wis. Stat. § 146.82(2)(a)3.
(exception provided "[t]o the extent that the records are needed
for billing, collection or payment of claims.").

15
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definition of "person authorized by the patient," but it did not

do so.

¶64 A third problem with the court's interpretation stems

from the language of the legislature's 2014 enactment of 2013

Wisconsin Act 342, which in turn created Wis. Stat.

§ 146.83(1b). Importantly, this statute further defined those

who are exempt from payment. Section § 146.83(1b) provides:

Notwithstanding s. 146.81(5), in this section, a
"person authorized by the patient" includes an
attorney appointed to represent the patient under s.
977.08 [a section in the chapter pertaining to the
State Public Defender] if that attorney has written
informed consent from the patient to view and obtain
copies of the records.
§ 146.83(1b) (emphasis added). "Notwithstanding" the definition

of "person authorized by the patient" means "in spite of" the

definition of "person authorized by the patient."

Notwithstanding, Black's Law Dictionary 1231 (10th ed. 2014)

(emphasis added). It would be strange indeed for the

legislature to have used the word "notwithstanding" if, as is

suggested by the court's opinion, these attorneys already met
the definition of "person authorized by the patient" in Wis.

Stat. § 146.81(5) prior to the enactment of § 146.83(1b). Put

differently, the legislature's recent amendment strongly

indicates that individuals like Moya's attorney are not included

in the definition of "person authorized by the patient." If

lawyers who received authorization in writing were included in

§ 146.81(5), § 146.83(1b) would be surplusage and completely

unnecessary.

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¶65 The amendment in Wis. Stat. § 146.83(1b) provides

similar guidance when viewed in light of any of a number of

canons of construction. One such canon has already been

referenced: "Statutory language is read where possible to give

reasonable effect to every word, in order to avoid surplusage."

Kalal, 271 Wis. 2d 633, ¶46. As Healthport points out, "[i]f

the definition of 'person authorized by the patient' already

included attorneys with an informed consent, the new section

146.83(1b) would be wholly superfluous." Indeed it would.

¶66 Again, "[u]nder the doctrine of expressio unius est

exclusio alterius, 'the express mention of one matter excludes

other similar matters [that are] not mentioned.'" FAS, LLC, 301

Wis. 2d 321, ¶27 (alteration in original) (quoting Perra, 239

Wis. 2d 26, ¶12). That is, the legislature obviously could have

expanded the reach of Wis. Stat. § 146.83(1b) to include

personal injury attorneys, but it did not do so. Similarly,

"[n]othing is to be added to what the text states or reasonably

implies (casus omissus pro omisso habendus est). That is, a
matter not covered is to be treated as not covered." Scalia &

Garner, supra, at 93 (describing this as the "Omitted-Case

Canon"). Under this principle, a judge should not, among other

things "elaborate unprovided-for exceptions to a text." Id.;

see also id. ("[I]f the Congress [had] intended to provide

additional exceptions, it would have done so in clear language."

(alterations in original) (quoting Petteys v. Butler, 367 F.2d

528, 538 (8th Cir. 1966) (Blackmun, J., dissenting))). This is
exactly what the court may be read to do in concluding that

17
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Moya's attorney is exempt from the fees at issue. This court

should not be acting where the legislature has declined to do

so.

¶67 Accordingly, the court's interpretation of Wis. Stat.

§ 146.83(3f)(b) possesses substantial flaws, and I cannot agree

with it. Fortunately, it is not the only interpretation

presented in this case. Again, it is important to recognize

that Wis. Stat. § 146.81(5) does not clearly define the nature

of the "authori[ty]" provided by the patient to the person

chosen by the patient; the statute instead lists categories of

individuals. In order to determine the nature of this

authority, then, it is again beneficial to look to context and

to apply recognized canons of construction.

¶68 Two related canons of construction, noscitur a sociis

and ejusdem generis, are particularly helpful here. Pursuant to

the noscitur a sociis canon of construction, "[a]n unclear

statutory term should be understood in the same sense as the

words immediately surrounding or coupled with it." State v.
Quintana, 2008 WI 33, ¶35, 308 Wis. 2d 615, 748 N.W.2d 447

(quoting Wis. Citizens Concerned for Cranes & Doves v. DNR,

2004 WI 40, ¶40, 270 Wis. 2d 318, 677 N.W.2d 612). That is, it

is reasonable to ascertain the meaning of the phrase "person

authorized by the patient" by analyzing the phrase in light of

the surrounding categories enumerated in the definition. See

Moya, 366 Wis. 2d 541, ¶12; see also Kalal, 271 Wis. 2d 633, ¶46

("Context is important to meaning.").

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¶69 As explained, none of the enumerated categories in

Wis. Stat. § 146.81(5) consists of attorneys. Further, the

phrase "any person authorized in writing by the patient" is

placed in the middle of the list rather than at its end;

therefore, it does not seem to be an expansion of the categories

previously listed to new categories of people, nor does it seem

to be an extension of the previously listed categories to

include a host of new categories. See, e.g., State v. Givens,

28 Wis. 2d 109, 115, 135 N.W.2d 780 (1965) ("When the statute,

after the specific enumerations, in a 'catchall' clause

proscribes 'otherwise disorderly conduct' which tends to

'provoke a disturbance,' this must mean conduct of a type not

previously enumerated but similar thereto in having a tendency

to disrupt good order and to provoke a disturbance.").

¶70 In fact, if I consult the noscitur a sociis canon of

construction, it depends upon whether the enumerated persons in

Wis. Stat. § 146.81(5) possess a "similar meaning." Quintana,

308 Wis. 2d 615, ¶35. If the various categories are unrelated,
then one would presume that the individual categories should be

interpreted broadly. See id. Conversely, if the various

categories are related, then the "authori[ty]" provided by the

patient to the person chosen by the patient in § 146.81(5)

should be understood in light of the characteristics shared by

each category. See id. As was previously discussed, the

categories of individuals listed have in common the fact that

they become decision-makers for the patient. Thus, we further

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conclude that the phrase "person authorized by the patient" is

not to be construed as expansive.

¶71 Additionally, a related canon of construction, ejusdem

generis, "instructs that when general words follow specific

words in the statutory text, the general words should be

construed in light of the specific words listed" such that "the

general word or phrase will encompass only things of the same

type as those specific words listed." Id., ¶27 (citing Adams

Outdoor Advert., Ltd. v. City of Madison, 2006 WI 104, ¶62 n.15,

294 Wis. 2d 441, 717 N.W.2d 803). But if "[t]he specific terms

listed in the statute have no common feature or class from which

one could ascertain an intention to restrict the meaning of the

general term," then "the general terms should be interpreted

broadly to give effect to the legislature's intent." Id., ¶¶26,

28, 31-32; see also Scalia & Garner, supra, at 101 (under the

"General-Terms Canon," "[g]eneral terms are to be given their

general meaning (generalia verba sunt generaliter

intelligenda)," so long as there is no "indication to the
contrary"). So again, because the categories of individuals

have in common the fact that they become decision-makers for the

patient, the words are not expansive.

¶72 Consequently, it is important to ascertain whether

there are similarities between the categories of individuals

listed in Wis. Stat. § 146.81(5). If there are similarities,

this would indicate that the "authori[ty]" granted in

§ 146.81(5) should be interpreted more narrowly and more
exclusively; if there are no similarities, then this

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"authori[ty]" should be interpreted more broadly and less

exclusively.

¶73 Wisconsin Stat. § 146.81(5) defines "[p]erson

authorized by the patient" to include individuals acting on

behalf of: (1) minor patients; (2) patients who have been

adjudicated incompetent; (3) deceased patients; and (4)

incapacitated patients. § 146.81(5). One might argue that the

legislature envisioned a certain commonality among these

categories of individuals. And indeed, the court of appeals,

comparing Moya and her personal injury attorney to these other

pairs of individuals, interpreted "authorized" in the phrase

"person authorized by the patient" to mean "having the power to

consent to the release of the patient's records," rather than

merely the power to receive those records. Moya, 366

Wis. 2d 541, ¶16 (emphasis added); see also § 146.81(5) ("A

court may appoint a temporary guardian for a patient believed

incompetent to consent to the release of records under this

section as the person authorized by the patient to decide upon
the release of records, if no guardian has been appointed for

the patient." (emphasis added)). The court of appeals concluded

that adoption of Moya's argument would violate the manifest

purpose of the relevant statutes, expanding the definition of

"person authorized by the patient" beyond the "very specific

list of individuals" contemplated by the legislature. See Moya,

366 Wis. 2d 541, ¶12.

¶74 The interpretation of the court of appeals is
reasonable. It better comports with the other enumerated

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categories of persons in Wis. Stat. § 146.81(5). It possesses

none of the major defects of the court's interpretation which I

identified above. And it is supported by the statutory context

and by canons of construction. And this holds true whether "any

person authorized in writing by the patient" is read as a

standalone category or together with the following clause. If

read as a standalone category, "any person authorized in writing

by the patient" would clearly not be intended as a broad,

"catch-all" group, because it would not fall at the end of the

list of enumerated categories; and if read together with the

following clause ("or a health care agent designated by the

patient as a principal under ch. 155 if the patient has been

found to be incapacitated under s. 155.05(2)," § 146.81(5)),

then "any person authorized in writing by the patient" would

share the characteristics of the other enumerated categories and

would not be intended to include attorneys. These canons

certainly point strongly in one direction: against the reading

adopted by the court.
¶75 The court does not adequately address the reading

dictated by application of the interpretative methodology

discussed above; as a result, its reasoning is unpersuasive. It

also does not explain why Wis. Stat. § 146.83(1b) would be

necessary to exempt public defenders from the payment of these

fees because public defenders, as virtually all others, would

need written authorization to obtain the patient's records in

the first instance. The court adopts a more expansive
interpretation, but seems to base its interpretation on language

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that does not have support in common tools of construction. In

my view, little or nothing in the statutory text supports the

court's expansive view.

¶76 On balance, I must conclude that the interpretation

adopted by the court today is unlikely to be the correct answer.

If the statute at issue is really as broad as the court says it

is, the challenged fee requirements are rendered largely

meaningless. I cannot accept that a plain meaning here was

intended to exempt virtually all who obtain records from payment

of the fees set forth.

¶77 The clear purpose of the statute, as

"gathered . . . from the text itself," is to charge certain

individuals fees. Scalia & Garner, supra, at 33. Very simply

stated, since nearly anyone who wishes to receive a patient's

records needs that patient's authorization and no such

authorized person would ever need to pay the applicable fee,

virtually no fees would be paid under this statute. It is not

as though an attorney, appropriately authorized, could never fit
the definition of "person authorized by the patient." But every

attorney does not fit that definition, and an examination of the

text reveals that Moya's attorney does not fit that definition.

¶78 Finally, given the competing interpretative

possibilities here, a point about judicial restraint is

appropriate. Even if it intuitively makes sense that personal

injury lawyers should not have to pay fees to receive their

clients' medical records, if I am incorrect, the legislature
could easily amend the statute as it did with Wis. Stat.

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§ 146.83(1b) thereby excluding the public defenders. The

legislative "fix," if the court is incorrect, requires a virtual

rewrite of these fee statutes.

IV

¶79 Interpretation of the statutory text leads me to

conclude, like the court of appeals, that Moya's personal injury

attorney is not a "person authorized by the patient" under Wis.

Stat. § 146.83(3f)(b). Regardless, it would be well worth the

legislature's time for it to clarify these statutes so as to

provide guidance to the public, to lawyers, and to the courts.

In the absence of such guidance, however, I must respectfully

dissent.

¶80 For the foregoing reasons, I respectfully dissent.

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