final case i'd call today's agenda number twenty three case number one zero seven seven one one nine walter salon versus midwest medical records please the court also i am male and borax i represent the defendant appellant midwest medical records association or m memory for short this case involves the statutory construction of two statutes that will amended on september world two thousand and one to limit the charges for capital medical records they are sexually to only one of the code which applies to page charge of up to seventy five cents per page for the first twenty five pages fifty cents per pills for the next twenty five and twenty five cents per page thereafter in addition they also imposed the  de permitted in charge of actual shipping cost them or early makes copies of medical records for its clients hospitals and other health care practitioners in this case they point out that on the same day that these two still chintz were amended the legislature pro prohibited for the first time section eight push to on family that applies to returns with the identical charges so therefore could also be expected that this court's construction of the two medical statutes will also probably i would think apply to the attorney statutes and or move thousands of providers who are subject to the believe in the complaint even there is there is something about that that they do list something but it's been too long since i've for a quick look at that but i don't think that would be a problem at all and i think it would be you say health care providers and a couple companies have no choice but to guess what is a reasonable charge and this case comes with tremendous attendant costs of of of  course for example if you make a contract and you don't specify the price the mall imposes a reasonable price or in the frost cases they put it out when you when you have purpose they said this time the purpose was to protect the you requested to make sure the requests are only pays a reasonable charge but again that theory is flawed because we're not dealing with a reasonable charge we're dealing with to be per se reasonable we agree and it's impossible really to argue that a twenty dollar handling charge and a declining group a charge of seventy five cents per page is the language because no question language is very important you look at the language it's often said it's the most reliable indicator it's the place where you start but you of course you also look at purposes intervals to be remedied and compare the consequences here the majority plucked out two words they plucked out and gave them death pictionary definitions reimburse and incur and they said that these the dictionary definitions can only and they say actual cost but the problem is is that the legislature uses actual cost the actual words in legions of statutes indeed they used the words reimburse for actual cost in legions of statutes but that's not a law they actually used it here in another passage they said actual shipping costs so they used actual cost for shipping but not for the handling charge and not for the per page charge it would be redundant if the actual cost can be inferred to then use actual cost was shipping and indeed of course the court is obligated to read the statute as a whole and not the person with all due respect to maturity the majority failed to heed the and mannish meant of this crowd inherent in two thousand and three this court said that in construing a statute exclude the court is it you must consider the real world activity that the statute is designed to regulate and the overturned in that case the literal interpretation of the trial court and the appellate court which took a little rule interpretation of the statute saying you did not heed the context you did not consider the real world world and it's it seems that that's where the majority put on blinders and disregarded the the actual consequences and the context of the statute  the operation of the statute that would be the health care providers counsel argues that the common law said you have a must have a reasonable charge for copying medical records but the cake case the plays out i'm going to as counsel for the other side the same question does the way this legislature stuff this up if i go in to use my physician and you don't use a copy of it is just your stamp i'm going to get charged differently arguably than that if you have to figure the costs of the outside service company is next week you go to the copy i would question makes sense and it does your honor in it and i hope i am my answer w add that if the provider uses a copy company then the provider doesn't have any other costs or you wouldn't expect they have any other costs you would only expect the cost to be the cost of billing itself and taken the money and then pay off the the company company i can tell you up i don't see any reason why that couldn't happen but i'm not aware of that happening and certainly not alleged in this case in this case it's  did the billing collected the money and did the work and might i say this is an advantage to health care practitioners they don't want to be in the business or many of them don't want to be in the business of making of making copies of medical records billing and all the like to answer that yes the other question is to go back to something you mentioned earlier this allocation yes or should they may not understand you're arguing that  that's what you have to charge and i don't i don't myself your honor don't see an allocation this is what you can charge you can charge more than this and the issue even for this statute which is an amendment in two thousand and eight in really isn't  deceptive because they used the term copy image and they say that was deceptive let me say first that issues of course not before this court that's a fact issue before the trial court secondly the statute that you have no need is an amendment in two thousand and eight in two thousand and one there was not the specification for my trying the copies that issue the per page charge for electronic copies not before the court it's before the trial court and it will be not decided by this court's instruction  if if if i may go on just this grime and refer to the legislative history and there are two aspects of the legislative history that i think should be noted first of all there was the issue that all the by the care if you would his comments thank you morning to you all want me please the court my name is my candidates i represent the plaintiffs of pelleas in this case your honour's my steamed opposition has stood up here in dave giving you a very impassioned argument for why it would be a good policy to have a copy statute that says you can charge a flat fee and if you were standing in a different room in the city across the street he may have you may have a very receptive audience but he is in a room council this is the statute says that they handling fee of no more than twenty dollars would be church for processing the requests for copies i know the majority looked at the overall language of the statute and said it is clear and unambiguous the process seen the request for a copy seems to me to be a very broad phrase that potentially includes everything from staff time to paper clips i mean i i think it's broad in the plain language then maybe not be as clear as the majority make sound so here's my question going back across the street if this court determines that that language isn't clear you know then we can look at other raids and we can look at what they said across the street and this is specifically what i'm asking on net and i believe just as graham and brings this up in his dissent so senator cullerton introduced the amended bill and then he said that this bill was a compromise and then he goes into compromise the trial lawyers the medical society the hospital association the companies that do copy records that agree this procedure and then he stays in relation to this bill and it basically sets up a sliding scale of copying charges and an initial fee that you have to pay by handling charge of twenty dollars and as i said everybody has agreed to it isn't that what happened across the street well let me try this there's two points and i don't want to lose sight of the point that this is not an ambiguous statute so i will i will come back to that but if if you decide that you have an ambiguity then you can look more broadly for its terms of governance part of it is what god said across the street which i would absolutely suggest is hardly a clear statement of the interpretation he wants you to give to the statu expenses not to exceed that was the for the physicians reason i'm sorry reimbursement of reason expenses incurred in connection with the copies no not to exceed no price cap me so at the time that the general assembly used that language it wasn't talking it couldn't have been talking about some set because there was no not to exceed rate that could be good that they could try to turn into a set b so that same language has been in the statute for almost thirty years  based policy reimbursement based policy assures that the requestor gets the copies of their medical records at the lowest possible price that is consistent with the actual cost of the provider and if you take a step don't only confusion that gets created here at all is the fact that the copy company isn't dealing with the hospital in an arm's length transaction and the talk about this amorphous reasonal mistake and of course we keep talking about reasonable and they won't talk about reimbursement but if you have an arm's length transaction the hospital and hopefully this will help address your point you know the hospital goes out and it contracts with a copy company to make the copies and it passes through that cost if the hospital isn't receiving anything back from the copy company which here we have substantial consideration flowing from the copy company back to the hospital then it's easy to say what a reimbursement is reimbursement is what the copy company charge the hospital which when they use the term independent copy company i believe is that's the system that the legislature was in visioning the legislature was not in visioning this this contract where the hospital is going to get more than a reimbursement out of out of out of the arrangement because the because the copy company is going to be giving them side consideration also you know once once you have one because once the hospital is not economically benefiting by choosing a particular copy company which is likely to be the most expensive copy company since it's giving side benefits to the hospital and just chooses out of out of a pool of competing copy is not unreasonable for a hospital to keep track of its costs when it's providing those copies the problem that you know brings this case into court is that there was a non arm's length transaction if you take a look at the the few other cases that he was able to gather in th that this language the reimbursement language has been in the statute you know the by and large they all had to do with problems with the coffee company they were caught the company cases where the copy company was giving consideration back to the hospital there just aren't any pure hospital cases out there because trying to claim this per se twenty dollars charge in combination with a charge that is not kept in a bid to justify that dollar twenty five per page rate they're taking advantage of an exception in the statute an exception says  twenty five a page is the reasonable cost of the duplication of that record material without looking at the twenty dollars also really the you know what they're calling the allocation theory highlights why you can't ride the plain language meaning really is what what how  reads it can't be the case that you couldn't analyze reasonable costs under this exception without looking at the total of what they're charging for this duplications record material so so getting back to the plain language meaning which i do believe is an ambiguous  argument that they had made for ambiguity in the briefing was this concept that it uses reimbursement a reasonable expenses incurred one place and uses actual expenses another place and of course for a statute to be ambiguous ambiguous reasonable expenses putting the words reimbursement on one side of it and incurred on another side of it it meant that reason expenses could be more than actual expenses that's not a reasonable interpretation first of all the plain language meaning of the word expenses suggest things that are actually incurred secondly it is a basic canon of construction that words are understood by the context in which they are used and here a reimbursement of result spence's incurred clearly does not in vision something more than actual expenses where it comes from but but again that you know there is no ambiguity from that because you know the reason why the reason the allocation issue is because the statutory exception and obviously you can't assess under the exception what the reasonable cost if whether something's been provided at the reasonable cost the duplication without looking at the total charge and so really taking a step back it is a very clear statute in tracing it through its history it makes it particularly clear it started off you know going back to one thousand nine hundred one when the general somebody first used these words these bills are too high and we're going to put them outside cap on it and the outside cap obviously relieves the requester of having to prove that anything above that cap represents more than the reimbursement of a reason expense but an outside cap doesn't doesn't prevent them from saying that something less than that is the reimbursement of reason expense and reimbursement really is is a hurdle that he won't address and didn't address in the briefing and which he can't get past and it is the language that the legislature beat machine you know obviously all those companies can make profits what they can do is not have an arm's length transaction where they're getting around the reimbursement policy of the statute by charging the maximum and then feeding part of it back to the provider that's clearly not what the statute envision and that's that's what they're doing and that's the genesis of this whole problem and you know going back to the this landslide the litigation problem again if you take a look at the the handful of cases that he's gathered in thirty years of this the statute having the that service which of course they're going to do then they can pass that along to their request and so if we ended up in a in a in our in an arm's length world where there's independent copy companies you know competing for you know let me be the independent copy company of this provider i would expect that we're going to see cheaper prices than what we do see because we already know that in the non arm's length transaction they're willing to give back a premium of fifty percent on every copy that they make so if furthermore you know if if we ended up in a situation where the copy companies charge all the way up to the backs and they were in there was nothing going back to the hospitals and that's what the market would do a court can rely on what the market does is being reasonable absent price fixing which takes us into a whole different set of statutes of the transaction that is an issue in our case is pled in the complaint that the copy company returns one essentially one free copy for every two that it gets to sell plus the free software what is contained in the statute that the provider may seek a reimbursement of the costs of it of its of the cost incurred to make the copies including the cost of independent copy companies but when you've got it when the cost of the independent copy company includes all these freebies going back to the hospital then that is not a reimbursement that is an end run around the policy that the general assembly decided to adopt for this statute and without that feature there is a very good minister of all statute you know whatever the coffee company charges the provider that's what the reimbursement is and like i said i think of you know the term reasonable expenses is is doesn't come from the enough amount of room to it if it is an arm's length transaction the court can assume that the provider picked a reasonable other cap charges right so could you kind of elaborate on that but that gets back to what i'm what i'm what i think is a misuse of this term on his allocation theory the dollar twenty five per page for the printing the copies of the digital records is and the company justifies that as being part of the exception for records that cannot be copied on a commercial photocopy machine examples of which in the statute are things like x rays and pictures but at any rate given that they can fit it under there for purposes of this argument  even if they can fit it under here how can it be that an uncapped charge which which has to be assessed at being provided to the reasonable cost can be assessed when what the when there is still charging twenty dollars  know for the handing things and you can't look at that is part of the cess in how i justify my dollar twenty five per page it is a practical matter it doesn't work and really i mean the reason why this issue is even in this court why it's in our complaint is because when they were asked to justify their dollar twenty five per page for printing copies of digital records on a laser printer they said all there's so much that you have to do but then of course they throw themselves back into the twenty dollar handling fee because as as you pointed out you can cover everything from paperclips  so you can't say you can't take advantage of the exception and still claim that there is this person a reading for things that aren't part of the group of things that the legislature kept if you want to read the captions being a person ok twenty dollars together with a dollar twenty five per page is a proper target in fact it's a tenth of that so so so essentially the the the sort of fight question you can call it an alternative argument or you can tal it an additional reason why the plain language interpretation has to be the correct one but the the certified question may be improvidently granted given the issue in this case if there are not any further is justice thomas i just wish to underline if i may the point you made about the helen charge being for processing the copies and how broad that is infect the term processing does have a dictionary everything from beginning to completion all the tasks all the services all the things that must be done on clued in the term processing for the handling fee i believe coun the time it was amended in two thousand and one it never had that language there wasn't anything about charges period end of sentence there is nothing in that statute that applies to reimbursement reasonable expenses or actual shipping costs there is however in section eighty two or rule three that applies to physicians and other practitioners their own companies and the statute said for all physicians and the right you can be reimbursed for reasonable expenses that should permit the current in allowing that to happen so it was only with respect to permitted self copying and only in one statute not in the hospital statute third you know it's really i'm trying to grope for the words to say this this is a case where he's talking about that's the so called freebie is this important maybe it's even a good play a little clip providers get this part and then event the copy companies have to make a profit if you want them in business there's no question about to do it wasn't the legislatures intent that this bill last winter that the providers have to make up sobre comes at a loss i think not but that ultimately i think maybe the bottom line question say respectfully in litigation free from wrong because there are no such i don't know quite area as to what is reasonable it will be very expensive it would be very burdensome not only in this case but another case is it's a matter of statutory construction