[Cite as Fuller v. Univ. Hosps. Med. Group, Inc., 2021-Ohio-2518.]

COURT OF APPEALS OF OHIO 

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

BURRELL FULLER, ET AL., : 

 Plaintiffs-Appellants, : 

 No. 109973 

 v. : 

 

UNIVERSITY HOSPITALS MEDICAL 

GROUP, INC., ET AL., : 

 

 Defendants-Appellees. : 

 

JOURNAL ENTRY AND OPINION 

 JUDGMENT: AFFIRMED

RELEASED AND JOURNALIZED: July 22, 2021 

 

Civil Appeal from the Cuyahoga County Court of Common Pleas 

Case No. CV-18-891878 

 

Appearances: 

James S. Wertheim, L.L.C., and James S. Wertheim, for 

appellants. 

Tucker Ellis L.L.P., Karl A. Bekeny, Michael J. Ruttinger, 

and Chelsea M. Croy Smith, for appellees. 

LARRY A. JONES, SR., J.: 

 

Plaintiffs-appellants, Burrell Fuller (“Fuller”) and Pomerantz and 

Crosby Co., L.P.A. (“the law firm”), appeal from the trial court’s decision granting 

summary judgment in favor of defendants-appellees, University Hospitals Medical 
Group, Inc. and University Hospitals Physician Services, Inc. (collectively 

“University Hospitals” or “the hospital”). For the reasons that follow, we affirm. 

Factual and Procedural History 

Fuller and the law firm initiated this class action against University 

Hospitals, alleging that the hospital overcharged the law firm, in violation of R.C. 

3701.741, for copies of Fuller’s medical billing the law firm requested. The law firm 

was representing Fuller in an automobile accident personal-injury case and sought 

the billing records for medical treatment he obtained at the hospital as a result of 

the accident. The hospital charged the firm $78.78 for three pages of billing 

records. The records were from the three medical departments that treated Fuller 

at the hospital on the day of the accident ─ the emergency department, the 

cardiology department, and the radiology department. Fuller was discharged the 

same day he was treated and had not been back to a University Hospitals facility or 

seen a University Hospitals doctor since that time. 

In addition to their individual claims against the hospital, Fuller and 

the law firm sought class-action certification for two different classes: an 

“overcharge class” and a Consumer Sales Practices Act class (“CSPA class”). Both 

proposed classes consisted of “all persons” who received treatment from University 

Hospitals, requested copies of “medical records” through an authorized 

representative, and received and paid a demand amount for payment prior to 

obtaining the records. 
The hospital filed a motion to dismiss that the trial court denied. 

The parties then engaged in discovery, at the conclusion of which the hospital filed 

a motion for summary judgment. Fuller and the law firm filed a motion for 

certification of both proposed classes. The trial court held a hearing on the parties’ 

motions, and thereafter issued its judgment granting University Hospitals’ motion 

for summary judgment and finding Fuller and the law firm’s motion for classaction certification “moot.” Fuller and the law firm now appeal, raising the 

following two assignments of error for our review: 

I. The trial court erred when it granted appellees’ motion for summary 

judgment. 

II. The trial court erred when it denied class certification. 

Law and Analysis 

In its first assignment of error, Fuller and the law firm contend that 

the trial court erred by granting summary judgment in favor of the hospital. 

Summary Judgment Standard of Review 

Appellate review of a summary judgment is de novo. Grafton v. 

Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). We employ the 

same standard as the trial court, without deference to it. Lorain Natl. Bank v. 

Saratoga Apts., 61 Ohio App.3d 127, 129, 572 N.E.2d 198 (9th Dist.1989). A 

motion for summary judgment may be granted only when it is demonstrated (1) 

that there is no genuine issue as to any material fact; (2) that the moving party is 

entitled to judgment as a matter of law; and (3) that reasonable minds can come to 

but one conclusion, and that conclusion is adverse to the party against whom the 
motion for summary judgment is made, who is entitled to have the evidence 

construed most strongly in his favor. Harless v. Willis Day Warehousing Co., 54 

Ohio St.2d 64, 67, 375 N.E.2d 46 (1978); Civ.R. 56(C). 

When seeking summary judgment, a party must specifically 

delineate the basis upon which the motion is brought and identify those portions of 

the record that demonstrate the absence of a genuine issue of material fact. 

Dresher v. Burt, 75 Ohio St.3d 280, 293, 662 N.E.2d 264 (1996). When a properly 

supported motion for summary judgment is made, an adverse party may not rest 

on mere allegations or denials in the pleadings, but must respond with specific 

facts showing that there is a genuine issue of material fact. Riley v. Montgomery, 

11 Ohio St.3d 75, 79, 463 N.E.2d 1246 (1984); Civ.R. 56(E). A “material” fact is one 

that would affect the outcome of the suit under the applicable substantive law. 

Russell v. Interim Personnel, Inc., 135 Ohio App.3d 301, 304, 733 N.E.2d 1186 (6th 

Dist.1999), citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 

2505, 91 L.Ed.2d 202 (1986). 

University Hospitals’ Summary Judgment Motion 

The hospital relied on numerous documentary evidence in support 

of its summary judgment motion, including (1) Fuller’s deposition testimony; (2) 

the affidavit and deposition testimony of Christopher Smith (“Smith”), who was 

employed by University Hospitals Health System, Inc. as Manager of Revenue 

Cycle Customer Service Department, and was responsible for processing requests 

for copies of University Hospitals Medical Group, Inc. (“UHMG”) itemized billing 
statements and other billing records; (3) the deposition testimony of Gloria 

Chiabai (“Chiabai”), a representative from the law firm who requested the subject 

records; (4) two letters from the law firm to the hospital, one requesting billing 

records for Fuller and the other requesting Fuller’s medical records; (5) a 

document titled “Finger on the Pulse: 2017 Reimbursement Rates for Copies of 

Medical and Billing Records Including Rates for Electronic Copies” (“Finger on the 

Pulse”); (6) a letter from the hospital requesting $78.78 for the billing records; (7) 

a letter from the law firm contesting the charge; (8) the deposition of an attorney 

from the law firm; and (9) the transcription of a call between Chiabai and a 

customer service representative from the hospital. 

With the above-mentioned documentation, the hospital established 

that when it receives a third-party request for an itemized billing statement, it 

invoices the third-party requestor the amount set forth in the “Finger on the Pulse” 

newsletters prepared by the hospital’s law department. The total amount reflects 

two components: a research fee and a copy fee. 

At the relevant time, the research fee was a $25 flat fee for each 

medical group that billed for treatment of a patient. Smith averred that the fee was 

for the “labor costs associated with the search and retrieval of the requested billing 

information in the financial accounting software and the compilation of that 

information into the requested itemized billing statement.” Smith explained that 

an additional $1.26 copy fee for billing statements was charged. Thus, the hospital 

billed the law firm a research fee of $25 for each of the departments that treated 
him (i.e., the emergency, cardiology, and radiology departments), and $1.26 for 

each page produced by the departments (each department produced one page). 

These charges were explained to Chiabai when she called the 

hospital’s customer service line to seek clarification. Chiabai did not challenge the 

charges, and thereafter the law firm paid the charges in full. Chiabai testified that 

an itemized billing statement is a specialized document required by liability 

insurers for purposes of documenting payment for health care services; they are a 

routine component of personal-injury litigation, and she routinely requests them 

for the law firm’s cases. 

Chiabai admitted that billing statements are not the same as medical 

records, however. Chiabai testified that when she submits requests to hospital 

systems on behalf of the law firm, she submits separate requests for the itemized 

billing and the medical records. The record shows that that is what happened in 

this case: the law firm sent two separate requests to University Hospitals 

regarding Fuller, one for the billing records and one for the medical records. 

Smith elaborated on the distinction between billing records and 

medical records. Specifically, unlike medical records, “[b]illing records are created 

after the related treatment provided to a patient is complete and are used solely for 

purposes of obtaining payment for that treatment.” Itemized billing statements 

are “created from information stored in * * * financial accounting software” and 

summarize “the amount charged, any adjustments to that amount, the amount 

actually paid, and any outstanding balance.” The Revenue Cycle Customer Service 
department that oversees creation of itemized billing statements, “rarely speaks 

with UHMG medical professionals and only regarding billing related issues.” It 

has “no involvement in the care and treatment of patients.” As such, “[b]illing 

records are not used by UHMG physicians or other medical professionals as part of 

the care and treatment of patients.” 

Smith explained that when University Hospitals receives a request 

for an itemized billing statement, an employee must first “[f]ind those accounts 

that are associated with the billing records that are being requested.” Creation of 

an itemized billing statement requires an employee of the Revenue Cycle Customer 

Service Department to use the department’s financial accounting software to pull 

billing records from each different University Hospitals practice group that treated 

a patient. Smith further explained that the system in use at the time of the law 

firm’s request would not simply show all Fuller’s records from just inputting his 

name; an employee had to search individually for records from each of the three 

groups that treated him. After the records from the three departments were 

searched, a new document, consisting of three pages, was created as Fuller’s 

itemized billing statement. That document did not previously exist in the 

hospital’s databases. 

Fuller and the Law Firm’s Opposition 

In opposition to the hospital’s motion for summary judgment, Fuller 

and the law firm relied on the deposition testimony of one of the firm’s attorneys 

and Smith’s deposition testimony. The attorney testified that Fuller signed a 
“Authorization for Release of Medical Information” (“the authorization”) when 

requesting his records. According to the deposition testimony of both the attorney 

and Smith, the authorization is the same regardless of which University Hospitals 

facility or doctor performs the service or what records are requested. Fuller and 

the law firm contended that the use of the authorization for both billing and 

medical records demonstrated that billing records are medical records subject to 

the price requirements of R.C. 3701.741. 

R.C. 3701.741 

R.C. 3701.741 governs the maximum allowable fees for providing 

copies of medical records, and provides in relevant part as follows: 

(A) Each health care provider and medical records company shall 

provide copies of medical records in accordance with this section. 

(B) Except as provided in divisions (C) and (E) of this section, a health 

care provider or medical records company that receives a request for a 

copy of a patient’s medical record shall charge not more than the 

amounts set forth in this section. 

* * * 

(2) If the request is made other than by the patient or the patient’s 

personal representative,1 total costs for copies and all services related 

to those copies shall not exceed the sum of the following: 

(a) An initial fee of sixteen dollars and eighty-four cents adjusted in 

accordance with section 3701.742 of the Revised Code, which shall 

compensate for the records search[.] 

1A patient’s personal representative is “a minor patient’s parent or other person acting 

in loco parentis, a court-appointed guardian, or a person with durable power of attorney 

for health care for a patient, the executor or administrator of the patient’s estate, or the 

person responsible for the patient’s estate if it is not to be probated.” R.C. 

3701.74(A)(11). 
R.C. 3701.74(A)(8) defines a medical record as “data in any form 

that pertains to a patient’s medical history, diagnosis, prognosis, or medical 

condition and that is generated and maintained by a health care provider in the 

process of the patient’s health care treatment.” 

Fuller and the law firm cite the Ohio Supreme Court’s decision in 

Griffith v. Aultman Hosp., 146 Ohio St.3d 196, 2016-Ohio-1138, 54 N.E.3d 1196, in 

support of their contention that billing records are medical records. We find 

Griffith distinguishable from this case. 

In Griffith, the plaintiff’s deceased father had been a patient at 

Aultman Hospital. The decedent had surgery and was initially in the intensive care 

unit; he was then transferred to a step-down unit and placed on cardiac 

monitoring. A nurse in the step-down unit checked on the decedent around 4:00 

a.m. and found he was doing well. Approximately 45 minutes later, an x-ray 

technician found the decedent in his bed with his gown ripped off, the cardiac 

monitor no longer attached to his body, his central line lying on the floor, and his 

chest tube disconnected. The patient was unresponsive and did not have a 

heartbeat. He was resuscitated and put on life support. However, he had suffered 

severe brain damage and showed no signs of neurological improvement; his family 

removed him from life support and he passed away shortly thereafter. 

The decedent’s daughter requested her father’s medical record from 

the hospital. The hospital produced the medical record as it existed in the medicalrecords department. The record did not contain any of the monitoring strips from 
the cardiac monitor. Thus, the daughter filed an action under R.C. 3701.74 and 

2317.48 to compel the production of her father’s complete medical record. 

According to the hospital, the cardiac monitor records were not part of the 

decedent’s records because the nursing staff had not provided them to the medicalrecords department. 

A representative from the hospital testified that documentation 

about the monitoring strips was printed from the decedent’s cardiac monitor by a 

nurse after his death at the request of the hospital’s risk-management department. 

According to the representative, a patient’s data from a cardiac monitor is saved 

for 24 hours after the patient’s discharge, after which it is deleted unless otherwise 

ordered. 

The court considered the definition of medical record under R.C. 

3701.74, and concluded the following: 

because the Ohio General Assembly did not limit the definition of 

“medical record” in R.C. 3701.74(A)(8) to data in the medical-records 

department, the physical location of the data is not relevant to the 

determination whether the data qualifies as a medical record. 

Instead, the focus is whether a healthcare provider made a decision to 

keep data that was generated in the process of the patient’s healthcare 

treatment and pertains to the patient’s medical history, diagnosis, 

prognosis, or medical condition. We hold that for purposes of R.C. 

3701.74(A)(8), “maintain” means that the healthcare provider has 

made a decision to keep or preserve the data. 

Id. at ¶ 2. 

Thus, the holding in Griffith relates to the “maintain” portion of R.C. 

3701.74(A)(8). Our concern in this case, however, is whether the billing records 
were “generated * * * by a health care provider in the process of the patient’s 

health care treatment” as contemplated under the statute. (Emphasis added.) 

Thus, Griffith is distinguishable from the issue in this case. 

Construing the evidence most strongly in favor of Fuller and the law 

firm as we are required to do, it demonstrates that an itemized billing statement is 

not the same as a medical record. Requests for itemized billing statements and 

medical records are usually separately made, and a billing record does not pertain 

“to a patient’s medical history, diagnosis, prognosis, or medical condition.” R.C. 

3701.74(A)(8). Rather, it is the record that insurance companies require to 

document payment for healthcare services. 

Further, a billing record is not “generated and maintained by the 

health care provider in the process of the patient’s health care treatment.” Id. As 

Smith explained, the process for generating itemized billing records requires an 

employee to use the Revenue Cycle department’s financial accounting software to 

pull billing records from each different practice group that treated a patient. Thus, 

in this case, someone had to individually search for records from each of the three 

groups that treated Fuller, that is, from the emergency, cardiology, and radiology 

departments. The person completing the law firm’s itemized billing statement 

request had to search records from the three different groups, individually access 

Fuller’s records within those groups, and then physically print the “itemized bills,” 

which “detail the specific charges for the services provided.” 
Thus, a new document ─ a three-page itemized billing statement ─ 

which had not previously existed anywhere in University Hospitals’ databases was 

created. As Smith averred in his affidavit, “[b]illing records are created after the 

related treatment provided to a patient is complete and are used solely for 

purposes of obtaining payment for that treatment. Billing records are not used by 

UHMG physicians or other medical professionals as part of the care and treatment 

of patients.” 

In light of the above, billing records are not medical records and 

therefore are not subject to the pricing requirements of R.C. 3701.741. The first 

assignment of error is overruled. 

Class Certification 

For their second assigned error, Fuller and the law firm contend that 

the trial court erred in denying them class certification. We disagree. 

Fuller and the law firm’s claims were dismissed by the trial court 

vitiating any standing they would have to bring claims on behalf of others because 

the court determined that the plaintiffs had no case or controversy for which they 

could raise claims. Therefore, based on the dismissal of Fuller and the law firm’s 

individual claims, the class claims have been mooted because they cannot proceed 

with Fuller and the law firm as their representative. FV-I, Inc. v. TownsendYoung, 8th Dist. Cuyahoga No. 109191, 2020-Ohio-5184, ¶ 74, citing Brunet v. 

Columbus, 1 F.3d 390, 399 (6th Cir.1993) (“Where * * * the named plaintiff’s claim 

becomes moot before certification, dismissal of the action is required.”). 
In light of the above, the second assignment of error is overruled. 

Conclusion 

The statutory definition of “medical record” contains two separate, 

but equally necessary, components: a medical record is a document that “pertains 

to a patient’s medical history, diagnosis, prognosis, or medical condition” and a 

document “that is generated and received for filing maintained by a healthcare 

provider in the process of the patient’s health care treatment.” R.C. 3701.74(A)(8). 

An itemized billing statement is not a medical record within the meaning of R.C. 

3701.741, and the trial court properly granted the hospital’s motion for summary 

judgment. Further, the trial court properly dismissed the class claims as moot. 

Judgment affirmed. 

It is ordered that appellees recover from appellants costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate be sent to said court to carry this 

judgment into execution. 
A certified copy of this entry shall constitute the mandate pursuant to Rule 

27 of the Rules of Appellate Procedure. 

LARRY A. JONES, SR., JUDGE 

SEAN C. GALLAGHER, P.J., and 

EILEEN T. GALLAGHER, J., CONCUR