                                                                    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
                                                19
                                                                                   No.    2014AP2236



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.




                                            20
                                                                         No.   2014AP2236.akz


      ¶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
                                                               No.    2014AP2236.akz


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,
                                          2
                                                                     No.   2014AP2236.akz

      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
                                                                            No.    2014AP2236.akz

       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 &

                                                    4
                                                         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
                                                                     No.   2014AP2236.akz


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
                                                                            No.   2014AP2236.akz

          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
                                                                          No.   2014AP2236.akz


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
                                                                  No.   2014AP2236.akz


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
                                                                             No.       2014AP2236.akz


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
                                                               No.    2014AP2236.akz


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.").


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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

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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.").



                                          18
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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



                                                    19
                                                                               No.      2014AP2236.akz


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

                                                  20
                                                                                 No.    2014AP2236.akz


"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

                                                     21
                                                                           No.     2014AP2236.akz


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

                                                  22
                                                                           No.   2014AP2236.akz


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.

                                              23
                                                         No.    2014AP2236.akz


§ 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.




                                  24
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1
