2021 WI 86

SUPREME COURT OF WISCONSIN CASE NO.: 2019AP2034

COMPLETE TITLE: Andrea Townsend, Plaintiff-Appellant, v. ChartSwap, LLC, Defendant-Respondent-Petitioner.

REVIEW OF DECISION OF THE COURT OF APPEALS Reported at 395 Wis. 2d 229,952 N.W.2d 831 PDC No:2021 WI App 79 - Published

OPINION FILED: November 26, 2021 SUBMITTED ON BRIEFS: ORAL ARGUMENT: September 29, 2021

SOURCE OF APPEAL: COURT: Circuit COUNTY: Milwaukee JUDGE: Paul R. Van Grunsven

JUSTICES: ROGGENSACK, J., delivered the majority opinion of the Court, in which ZIEGLER, C.J., REBECCA GRASSL BRADLEY, and HAGEDORN, JJ., joined, and in which ANN WALSH BRADLEY, DALLET, and KAROFSKY, JJ., joined, except for ¶¶17 and 23-26. DALLET, J., filed a concurring opinion, in which ANN WALSH BRADLEY and KAROFSKY, JJ., joined. NOT PARTICIPATING:

ATTORNEYS: For the defendant-respondent-petitioner, there were briefs filed by Thomas L. Shriner, Jr., Andrew J. Wronski, Philip C. Babler, Anne-Louise T. Mittal, and Foley & Lardner LLP, Milwaukee. There was an oral argument by Thomas L. Shriner, Jr. For the plaintiff-appellant, there was a brief filed by Robert J. Welcenbach and Welcenbach Law Offices, S.C., Milwaukee; with whom on the brief was Scott C. Borison and Legg Law Firm LLC, Baltimore, Maryland; with whom on the brief was Jon Craig Jones and Jones & Hill, LLC, Oakdale, Louisiana. There was an oral argument by Scott C. Borison. An amicus curiae brief was filed on behalf of Wisconsin Association for Justice by Brett A. Eckstein and Cannon & Dunphy, S.C., Brookfield.

2021 WI 86 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2019AP2034 (L.C. No. 2018CV9938)

STATE OF WISCONSIN : IN SUPREME COURT

Andrea Townsend, Plaintiff-Appellant, FILED v. NOV 26, 2021 Sheila T. Reiff ChartSwap, LLC, Clerk of Supreme Court

Defendant-Respondent-Petitioner.

ROGGENSACK, J., delivered the majority opinion of the Court, in which ZIEGLER, C.J., REBECCA GRASSL BRADLEY, and HAGEDORN, JJ., joined, and in which ANN WALSH BRADLEY, DALLET, and KAROFSKY, JJ., joined, except for ¶¶17 and 23-26. DALLET, J., filed a concurring opinion, in which ANN WALSH BRADLEY and KAROFSKY, JJ., joined. REVIEW of the decision of the Court of Appeals. Reversed. ¶1 PATIENCE DRAKE ROGGENSACK, J. We review the court of appeals' decision1 reversing the circuit court's2 dismissal of Andrea Townsend's claim against ChartSwap, LLC ("ChartSwap") for 1Townsend v. ChartSwap, LLC, 2020 WI App 79, 395 Wis. 2d 229, 952 N.W.2d 831. 2The Honorable Paul R. Van Grunsven of Milwaukee County Circuit Court presided. No. 2019AP2034 unlawfully overcharging her for copies of her medical records in contravention of the fee restrictions set out in Wis. Stat. § 146.83(3f) (2017-18).3 On appeal, ChartSwap urges us to reverse the court of appeals, arguing that the statutory fee restrictions do not apply to it because it is not a health care provider, which is statutorily defined, and because principles of agency law do not impose personal liability on it for the fees it charged. ¶2 We conclude that, under a plain meaning interpretation of Wis. Stat. § 146.81(1), ChartSwap is not a health care provider; and, therefore, it is not subject to the fee restrictions in Wis. Stat. § 146.83(3f)(b), which regulate health care providers. Additionally, we conclude that neither common law principles of agency nor the plain meaning of Wis. Stat. § 990.001(9) supports the conclusion that an agent is personally liable for charging more for health care records than the statute permits its principal to charge. Accordingly, we reverse the decision of the court of appeals.

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I. BACKGROUND A. Factual History4 ¶3 On August 2, 2016, Andrea Townsend ("Townsend") was injured in a car crash. Townsend retained a law firm for her personal injuries, and the firm, with her written consent, sought certified health care records and billings from Milwaukee Radiologists, which was involved in her care. ¶4 Following her attorney's request, ChartSwap replied on behalf of Milwaukee Radiologists and provided a one page certified health care record to Townsend, for which it charged $35.87. Townsend's attorneys paid the bill. Townsend then asserted claims against ChartSwap for negligent or intentional violation of the fee structure dictated for health care providers in Wis. Stat. § 146.83(3f)(b) and a claim for unjust enrichment.^[5] Townsend also No. 2019AP2034 No. 2019AP2034 No. 2019AP2034 No. 2019AP2034 No. 2019AP2034 No. 2019AP2034 No. 2019AP2034

imposes "liability upon 'any person . . . who violates [Wis. Stat. §] 146.83.'" Townsend, 395 Wis. 2d 229, ¶10. The court of appeals reasoned that, rather than focusing on a definition of "health care provider," the context and structure of the statute, as well as the legislature's decision to impose liability on "any person," should control whether ChartSwap is liable for charging more than § 146.83(3f)(b) permits. Id. ¶16 We agree that the context of a statutory scheme is important to the plain meaning of the text. Statutes are to be construed and harmonized with one another when possible. Pruitt v. State, 16 Wis. 2d 169, 173, 114 N.W.2d 148 (1962). Here, there are two statutes that speak to providing health care records under Wis. Stat. § 146.83(3f)(b): Wis. Stat. § 146.84(1)(b) and § 146.83(3f)(b). Section 146.84(1)(b) provides that "[a]ny person" may be held liable for knowingly and willfully violating the provisions of § 146.83. However, the text of § 146.83(3f)(b) regulates only those charges made by health care providers. Therefore, if a health care provider charged more than the fees permissible under § 146.83(3f)(b), it would fall within the parameters of both § 146.84(1)(b) and § 146.83(3f)(b). Because ChartSwap is not a health care provider, its provision of health care records does not satisfy both statutes. ¶17 Stated otherwise, Wis. Stat. § 146.83(3f)(b) regulates charges that a health care provider may require for health care records, and Wis. Stat. § 146.84(1)(b) refers back to § 146.83, generally, with a directive to "any person" that damages may follow if the provisions of § 146.83 are not followed. Section No. 2019AP2034

146.83(3f)(b) is the more specific of the two statutes in regard to charges for health care records. However, the court of appeals concluded that § 146.84 directed its decision, rather than relying on the plain meaning of § 146.83(3f)(b). Townsend, 395 Wis. 2d 229, ¶10. We come to a different conclusion based on the plain meaning of § 146.83(3f)(b). Our conclusion also is supported by a canon of statutory interpretation, whose potential application is explained more fully below. ¶18 Furthermore, although the text of Wis. Stat. § 146.84(1)(b) refers to "any person," it is not an enforcement mechanism solely for Wis. Stat. § 146.83. It also relates to violations of other statutes. For example, § 146.84(1)(b) applies to Wis. Stat. § 146.82(1), which provides that "All patient health care records shall remain confidential." Section 146.82(1) is not at issue in this matter. ¶19 In addition, limiting the fee restrictions in Wis. Stat. § 146.83(3f)(b) to statutorily-defined health care providers does not create absurd results. In her brief, Townsend invited this court to consider the following scenarios: under the definitional limitation, if a patient were to request health care records from a hospital and the hospital supplied the records itself, the patient would not be charged extra fees. However, if the hospital outsourced responding to the request for health care records, such as occurred with ChartSwap, the patient would be charged an extra fee. Townsend's juxtaposition purports to show the absurdity and unfairness of the situation, as well as a potential loophole for No. 2019AP2034

health care providers. However, her scenarios are not persuasive for at least two reasons. ¶20 First, it is not absurd for the legislature to make policy decisions regarding the applicability of statutes to different constituents. At some point, there will be a cutoff. This is a policy choice that legislatures frequently make, and policy choices are left to legislative discretion. See Milwaukee J. Sentinel v. City of Milwaukee, 2012 WI 65, ¶37, 341 Wis. 2d 607, 815 N.W.2d 367 ("Policy decisions are left to the legislature."); Henson v. Santander Consumer USA Inc., 137 S. Ct. 1718, 1725 (2017) ("Legislation is, after all, the art of compromise, the limitations expressed in statutory terms often the price of passage . . . ."). ¶21 Second, the perceived unfairness of Townsend's scenarios likely have another remedy, which was raised at oral argument. In this case, Townsend asserted that ChartSwap was the agent of Milwaukee Radiologists.9 Milwaukee Radiologists is a health care provider under the statutory definition. Therefore, if Chartswap was the agent of Milwaukee Radiologists when it provided Townsend's health care records, as has been alleged, Chartswap's actions are Milwaukee Radiologists' actions. See Restatement (Third) of Agency is a common law concept based upon certain factual 9 situations. Cochran v. Allyn, 16 Wis. 2d 20, 23, 113 N.W.2d 538 (1962). However, whether the facts fulfill the legal standard for agency is a question of law. Brown v. Sandeen Agency, Inc., 2009 WI App 11, ¶18, 316 Wis. 2d 253, 762 N.W.2d 850 (citing B.C. Ziegler & Co. v. Ehren, 141 Wis. 2d 19, 26, 414 N.W.2d 48 (Ct. App. 1987)).

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Agency § 7.03(1) (2006) (explaining that a principal is subject to liability to a third party when its agent acts with authority and in contravention of the principal's legal obligation). However, whether an agency relationship existed between Milwaukee Radiologists and ChartSwap is not an issue that was presented to us for decision as we review ChartSwap's motion to dismiss; and accordingly, we do not decide it. ¶22 Finally, it bears repeating that statutory interpretation begins with the language of the statute. If the meaning of the words are plain and unambiguous, the court's inquiry ends, and there is no need to consult extrinsic sources of interpretation, such as legislative history. Kalal, 271 Wis. 2d 633, ¶¶45, 46. ¶23 The court of appeals struggled with interpreting two statutes that address the same subject matter, charging for health care records. Wisconsin Stat. § 146.84(1)(b) provides a general prohibition to "any person" in regard to those charges and Wis. Stat. § 146.83(3f)(b) provides a prohibition limited to a "health care provider." The court of appeals' efforts at reconciling the two statutes relied heavily on its perception of legislative "intent" and the "purpose" of Wis. Stat. § 146.83(3f)(b) to conclude that § 146.83(3f)(b)'s fee restrictions applied to ChartSwap. ¶24 Even after acknowledging that ChartSwap is not a health care provider under Wis. Stat. § 146.81(1)'s definition, see Townsend, 395 Wis. 2d 229, ¶8, the court of appeals reasoned that the "intent of the legislature was to ensure that patients have No. 2019AP2034

access to medical records in the custody and control of health care providers without being charged more than the reasonable costs of copying and mailing them." Id., ¶14. The court of appeals reliance on its perception of legislative intent when construing a statute is misplaced, as we have explained. State v. Fitzgerald, 2019 WI 69, ¶30, 387 Wis. 2d 384, 929 N.W.2d 165 ("[R]ather, we interpret the words the legislature actually enacted into law."). ¶25 If the court of appeals had employed the general/specific canon of statutory construction, it could have assisted its interpretations of Wis. Stat. § 146.84(1)(b) and Wis. Stat. § 146.83(3f)(b). To explain further, although the "general/specific canon is perhaps most frequently applied to statutes in which a general permission or prohibition is contradicted by a specific prohibition[,]. . . [it] has full application as well to statutes such as the one here, in which a general authorization and a more limited, specific authorization exist side-by-side." RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 566 U.S. 639, 645 (2012) (emphasis added). As Justice Scalia explained, "There the canon avoids not contradiction but the superfluity of a specific provision that is swallowed by the general one, 'violating the cardinal rule that, if possible, effect shall be given to every clause and part of a statute.'" Id. (citing D. Ginsburg & Sons v. Popkin, 285 U.S. 204, 208 (1932) (explaining that "[s]pecific terms prevail over the general in the same or another statute which otherwise might be controlling.")). ¶26 Applying the general/specific canon here would have assisted the court of appeals in understanding that when the No. 2019AP2034

wording of a general statute swallows the application of a specific statute, the "terms of the specific authorization[, Wis. Stat. § 146.83(3f)(b),] must be complied with." RadLAX Gateway Hotel LLC, 566 U.S. at 645. Therefore, once the court of appeals acknowledged that ChartSwap was not a statutorily-defined health care provider, at which § 146.83(3f)(b) is directed, the court of appeals' inquiry in regard to ChartSwap should have stopped. Instead, its decision misconstrued § 147.83(3f)(b), whose plain meaning applies only to health care providers. C. Wisconsin Stat. § 990.001(9) ¶27 The court of appeals also concluded that, even if ChartSwap was not included in the statutorily-defined list of health care providers, ChartSwap was nevertheless personally liable to Townsend for extra charges under principles of agency law that the court of appeals concluded were codified in Wis. Stat. § 990.001(9). Townsend, 395 Wis. 2d 229, ¶¶10-13. ¶28 Wisconsin Stat. ch. 990 provides canons of construction that shall be observed when construing or interpreting Wisconsin statutes. See Wis. Stat. § 990.001. Subsection (9) provides: Acts by agents. If a statute requires an act to be done which may legally be done by an agent, such requirement includes all such acts when done by an authorized agent. § 990.001(9). The court of appeals interpreted § 990.001(9) to mean that if a statute requires a certain action, the requirement to comply with the statute applies "with equal force" to a principal's agent. Townsend, 395 Wis. 2d 229, ¶10. Consequently, the court of appeals reasoned that because ChartSwap was fulfilling No. 2019AP2034

a request made of Milwaukee Radiologists, the fee restrictions on Milwaukee Radiologists applied equally to ChartSwap. ¶29 The court of appeals' interpretation of Wis. Stat. § 990.001(9) misperceives Wisconsin common law principles of agency. The court of appeals' interpretation is also in conflict with the plain meaning of § 990.001(9). ¶30 "[A]n agent is one who acts on behalf of and is subject to reasonably precise control by the principal for the tasks the person performs within the scope of the agency." Westmas v. Creekside Tree Serv., Inc., 2018 WI 12, ¶36, 379 Wis. 2d 471, 907 N.W.2d 68. "Whether an agency relationship exists is a question of fact that turns on the understanding between the alleged principal and the alleged agent of the relationship." DOR v. Microsoft Corp., 2019 WI App 62, ¶46, 389 Wis. 2d 350, 936 N.W.2d 160 (citing Noll v. Dimiceli's, Inc., 115 Wis. 2d 641, 643, 340 N.W.2d 575 (Ct. App. 1983)). ¶31 Townsend seeks to hold ChartSwap liable because of the fees it charged for health care records that were generated by Milwaukee Radiologists, a health care provider. However, an agent is subject to "liability to a third party harmed by the agent's conduct only when the agent's conduct breaches a duty that the agent [itself] owes to the third party." Restatement (Third) of Agency § 7.02. Stated otherwise, in order for an agent to be held liable for a statutory violation committed while acting on behalf of a principal, that same conduct also would need to violate the statute if done in the agent's personal capacity. However, no breach of an independent duty of ChartSwap to Townsend is alleged No. 2019AP2034

to have occurred. Rather, a breach of Milwaukee Radiologists' statutory duty to Townsend is alleged. ¶32 Under a plain reading of Wis. Stat. § 990.001(9), the statute simply affirms the common law principle that an agent may fulfill a principal's statutory duty because, in the eyes of the law, the agent's actions are the principal's actions. Not only did the Seventh Circuit come to a similar conclusion in its recent interpretation of § 990.001(9), see Smith v. RecordQuest, LLC, 989 F.3d 513, 519 (7th Cir. 2021), but Wisconsin case law confirms this understanding. ¶33 In Rosecky v. Tomaszewski, 225 Wis. 438, 274 N.W. 259 (1937), a lender told a debtor to make payments on a mortgage to an agent that the principal had authorized. Id. at 439. Subsequently, the lender assigned the mortgage to a third party. Id. However, the debtor was never notified of this change and continued to pay the agent, who embezzled the funds. Id. ¶34 The assignee sued the debtor and the dispositive issue was whether the debtor should be credited with the payments made to the agent after the assignment. Id. In interpreting the predecessor statute to Wis. Stat. § 990.001(9), we held that the debtor was due credit for the payments made to the agent because the principal established the agency and "the act of an authorized agent is the act of the principal." Id. at 442. ¶35 Furthermore, a plain meaning interpretation of Wis. Stat. § 990.001(9) provides that if a principal is required by statute to do an act and that act may be done legally by an agent, the statutory requirement of the principal to act includes all No. 2019AP2034

acts that were done by the principal's authorized agent. It says not one word about making the agent personally liable for acts taken upon authorization of the principal. It simply states the common law of agency that an act done by an authorized agent is the act of the principal. ¶36 Accordingly, we conclude that the plain meaning interpretation of Wis. Stat. § 990.001(9) embodies the fundamental common law principle that an agent's actions are the principal's actions for purposes of fulfilling a principal's statutory duty. Subsection 990.001(9) imposes no personal liability on an agent for authorized acts taken on behalf of its principal. III. CONCLUSION ¶37 We conclude that, under a plain meaning interpretation of Wis. Stat. § 146.81(1), ChartSwap is not a health care provider; and, therefore, it is not subject to the fee restrictions in Wis. Stat. § 146.83(3f)(b), which regulate health care providers. Additionally, we conclude that neither common law principles of agency nor the plain meaning of Wis. Stat. § 990.001(9) supports the conclusion that an agent is personally liable for charging more for health care records than the statute permits its principal to charge. Accordingly, we reverse the decision of the court of appeals. By the Court.—The decision of the court of appeals is reversed.

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¶38 REBECCA FRANK DALLET, J. (concurring). Although the substantive canons of statutory interpretation may sometimes be helpful in determining what the legislature meant to say, here they only confuse the analysis. The statutes at issue are straightforward, and understanding them requires no outside interpretive help. I agree with the majority opinion that Wis.

Stat. § 146.83(3f)(b), by its plain meaning, does not apply to

ChartSwap. As the majority opinion acknowledges, that should end

the analysis. Instead, it muddies the waters by attempting to apply an inapposite canon of construction. I therefore respectfully concur.1

¶39 The general-specific canon applies only to statutes that both address the same subject matter and conflict with one another

such that harmonizing them is impossible. See Kramer v. City of Hayward, 57 Wis. 2d 302, 310-11, 203 N.W.2d 871 (1973); see also

Antonin Scalia & Bryan A. Garner, Reading Law 183 (2012)

(explaining that the general-specific canon may apply only when

conflicting provisions "simply cannot be reconciled——when the attribution of no permissible meaning can eliminate the conflict"). Neither condition is met here. Wisconsin Stat.

§§ 146.83(3f)(b) and 146.84(1)(b) address different subject matters and are not in conflict. The former regulates how much a health care provider can charge a patient for a copy of her medical

records; the latter simply provides the penalty for violating the former. See majority op., ¶18. Thus, the general-specific canon does not apply.

I join all parts of the majority opinion except for ¶¶17 1 and 23-26.

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¶40 This case is prime example of how foisting the canons upon an otherwise straightforward, well-reasoned, and convincing textual analysis is unnecessary——and ultimately confusing. Even if the majority opinion is correct that the general-specific canon applies when a general "authorization" "swallows" a specific authorization, see id., ¶¶25-26, the majority opinion fails to explain how this is such a situation. It offers no explanation

for how §§ 146.83(3f)(b) and 146.84(1)(b) are "authorizations" or for how one swallows the other. Indeed, the majority opinion's conclusion that the general-specific canon would have "assisted"

the court of appeals' analysis is a non sequitur: How could the canon "assist" the court of appeals if it does not even apply?

All of this confusion could easily be avoided by simply reading and applying the statutory text. Because the majority opinion instead shoehorns an inapplicable canon into its analysis, I respectfully concur.

¶41 I am authorized to state that Justices ANN WALSH BRADLEY and JILL J. KAROFSKY join this opinion.

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