the court will now move to a case number nineteen dash two thousand and eighty four deftly smith versus record record quest were to begin with counsel for the her medical provider to go ahead and provide copies of her own records and instead of them responding directly they had record wes respond on their behalf in doing so the invoice that they send they say look reasons the st reason being that it undermines of statute and this particular law has already been addressed by the response and supreme court not on this besides issues but they they basically set out t the decision was in error is because the statute that allows for remedies under this law says that any person violates those provisions are can be held responsible now the district court will charge to provide those records clearly weeds the absurd result that what health care provider would provide the records directly all they need to do was bring in which raises the issue on what basis would record have any the ability to charge for the records it's not their records this whole statute is signed to make sure that patients not happen anymore or their records then what the law allows now number of these cases we've seen that argument where everybody says well we didn't get the money to have the us people just lie but we can't show actual damages these dombey us the health care provider is that answer the question i so doubt saying that money meaning the fear that the fee that she has to pay to get the records they they say that went to record last you should sue record quest correct or do you do you ever in case and simple off of them and say look you guys figure out who owes who if there's some arrangement between medical provider and and record class they could also bring the municipal already if they wanted to have them if they thought there were new sponsible for instance or they had turned over the money to the health care provider but these  was a model out and so the idea that somehow since they were suggesting that that representation was was an understanding so until the case copies were in the court they understood they were subject to that there might be a basis in the hardwood yang's there might be a basis poor the court to to recognize the plain at a minimum against the agent on the basis that an agent under the wisconsin law may not grounds been for the walk a county circuit court making reference to smith you know it was consequent appeals making reference to smith you've got judge edelman in harwood making reference to smith and then of course the reference in the footnote in harwood to smith as well we are sitting here in diversity assuming that the membership of the l l c in south carolina is resolved we're then put in this position of deferring to the highest wisconsin court  the health care provider who is not a health care provider responded to the request and charge a fee that a health care provider meena charge she further alleges that she was harmed by that it says a fee to the tune of twenty nine dollars twenty two cents for each records request that she submitted and those are the facts at the outset the court should decide whether the plaintiffs claims are time barred in determining whether the plaintiffs claims  exemplary damages and those exemplary damages may be as high as twenty five thousand dollars so let's hold what we have here in mind actual damages twenty nine dollars twenty two  recoverable as actual damages exemplary damages may be as high as twenty five thousand dollars exemplary damages are called exemplary damages because they are intended to be  law in wisconsin that equates exemplary damages with punitive damages the amount is decidedly untethered for the amount of actual damages incurred in a situation where the health records set is violated  and further there is there is just no basis for looking at a twenty five thousand dollars example or ward and comparing that to actual damages or some form of relief intended to put the plaintiff back in  our time card ok there's a two year limitations provision if you complain clearly alleges records requests submitted more than and paid out more than two years prior to the complaint being filed the claims  time barred now in response to that showing which is nearly unassailable i'd suggest the plaintiff has suggested that the court should look to cases under wisconsin law where wisconsin  provisions providing for damages multipliers and struggle to determine whether the damage multipliers are intended to compensate or to punish ok and we focused on two sorts of cases we focused on a case where the damages multiplier is twice the damages awarded and in that case the court said this may become pence story and we've seen a statute where the awards were three times the damage and the course that has circumstances this is probably we had here a statute where the multiplier ticks and there was a multiplier between twenty nine dollars twenty two cents is massive we're in a decidedly a different round in those cases they are not in this respect relevant to a case that is not close they are close cases this is not a close case but in any event if you look to those cases what will you font you will find courts inquiring whether this statute imposes a penalty  punish or if it is instead trying to impose something akin to compensatory damages i they're looking at damages multipliers something tethered to the actual damages amount in saying well you're multiplying your good doing it by  in my view when they're doing it on behalf of a health care provider you know they've been contracted to be the records process or set a record you know the question is how is liability imputed ok so we have in our briefs noted that the act of the agent is attributable to the principle ok so here if record quest as an agent of a principal as charged excessive fees the princip responsible for that conduct and is the appropriate avenue for seeking relief your question was that i ask that i get that mike my question is more so let me give you a hypothetical forget these facts let me give you a hypothetical be suppose a b c records company gets together with x y z hospital and x y z hospital says hey look here there's a fee schedule statute in wisconsin that we don't like and we can make some money off the back of so you a b c process the records and send the requests out don't follow the fee schedule charge a higher amount and then kick fifty percent of the delta back to us and we'll all be better off ok so if we move beyond the question of whether we like that sort of conduct to the question of where in the lie bill t is imputed we have to go to the statute ok and the statute clearly provides a fever  section that applies to health care providers ok it's undisputed it defines the term health care providers and it doesn't define to include agents so the health care provider can violate the feeder station provision and agent of the health care provider cannot on its own violate the fee or certain provision so to turn your your analogy on its head a little bit if and a if an independent ending not a health care provider had obtained the records and was selling them there would be no restrictions  let's let's make sure we do focus on statutory interpretation since this is a case about those made this a criminal statute in my hypothetical eighty records could be held liable as an aider and abettor to crime a result absolutely the wisconsin let's say her in crafting this regime decided we're it was wise to place liability it said if you're putting the requested health care provider and they through their agents sue the billing clerk ok so you present that request to a billing clerk or to a record sport ok she or he is an agent of the health care provider the legislature did not want the billing clerk sued or the person who the request was passed to in the billing clerk's office who facilitators ponse of the request you have to be careful in assigning liability because it has down the road consequences here the legislature wanted liability be imputed to the person responsible  responsible health care provider and not to billing clerks and other agents of health care providers now let's be very clear we should examine the statutory text there is only one argument from the statutory text made here by pla or even a tenable argument that the statute applies to agents it appeals to the remedies provision that provides that any person can be liable for violating the statute here is the analogy since we like these i say to my son you may not eat cake i say to my daughter daughter you must eat cake i didn't say to my children if you violate my instructions there will be discipline i had not by creating a remedies provision that speaks to both of them up ended the clear instructions that i gave to each of them separately ok that is a basic facility with language and if you move forward with that sort of activity with your spectrum children you know it's painfully clear that you cannot interpret language in the way that is suggested here say statutory construction can't for instance a planet reading read the phrase health care provider out of the statute it no longer has any meaning at all ok it's just gone more over the pla forget the statutory text and instead decide what sort of policy you would like to employ here frankly your honour's that is not your duty your duty is to look to the text of the statute see the clean and on big of language in the statute know that it sitting in diversity townsend is the highest wisconsin on this you pointed out twenty j letter why you believe it is not act why are we bound by your honour's if you look to the statutory text of the provisions in issue here there is very little doubt in my mind that you will not walk away uncertain of what the statute demands of you and how it governs this regime your to certify questions to the was go court if you're going on certain you are to defer to lower courts if you think that this supreme court would adopt the same logic here it is abundantly clear for instance from moira which makes very clear that the wisconsin supreme court is going to interpret this statute as written i love that case interpret the statute as written that's what those kinds of supreme court court's going to do if you interpret is written there will be no ambiguity there will be no uncertainty in your minds it will clearly not apply to the agent of health care provider and that will leave the plaintiff with a remedy against the health care provider but not against my client not against billing clerks not against other agents of health care providers thank you mr butler mr boortz i do you want to i want to give you two minutes  by health care providers by hiring an agent when he says there's no statutory provision if you look at it in the words of the statute says any person violates the legislature could have very easily set any health care provider who by late says that you could be libel for the remedies agents are basically held liable with them but the other part you know this idea that somehow this statute it's is barred by the statue of limitations under statute that  held only applies if mandated by the legislature there's absolutely nothing before the court to show that somehow they intended the statutory penalty provision to apply to this particular transaction so under the south milwaukee case which i think that and let me just address the billing clerk there the difference between a billing clerk they sort of reduced it to be absurd that a billing clerk could be held liable if that billing clerk was sending out an invoice and said send me the money and collected the money then yes they could be held liable but these people are not a billing clerk they're not just simply setting up invoices they're sending out invoices overcharging and collecting the money a one billion clerk simply prepares it's a ministerial act they are not