                           STATE OF MICHIGAN

                            COURT OF APPEALS



JACKIE SHACKELFORD JR,                                               UNPUBLISHED
                                                                     December 13, 2018
               Plaintiff-Appellant,

v                                                                    No. 339625
                                                                     Wayne Circuit Court
ALARIS GROUP INC,                                                    LC No. 16-009084-CP

               Defendant-Appellee.


Before: M. J. KELLY, P.J., and METER and O’BRIEN, JJ.

PER CURIAM.

        Plaintiff, Jackie Shackelford Jr., appeals as of right the trial court order granting summary
disposition to defendant, Alaris Group Inc. For the reasons stated in this opinion, we affirm.

                                        I. BASIC FACTS

        In January 2014, Shackelford was injured while driving a truck at work. Upon request
from Sentry Insurance (a workers’ compensation insurance company), from 2014 to 2016,
Shackelford received nurse case management services from Alaris Group via Case Management
Services, a wholly owned subsidiary of Alaris Group. The record reflects that Sentry paid for the
case management services, and the case management reports were prepared monthly and sent to
Sentry. On March 18, 2016, Shackelford, through his lawyer, sent the following request for
certain records to Alaris:

              Please be advised that this office has been retained to represent Jackie
       Shackelford, Jr. regarding his workers’ compensation claim. We understand that
       you have been providing nurse case management services to him as a result of his
       work injury.

              Regrettably, you did not assist him in obtaining attendant care despite our
       understanding that his physicians recommended attendant care which was being
       performed by his mother and friend. Mr. Shackelford stated that you should be in
       possession of the prescriptions that were written for attendant care by his
       physicians after his release form the hospital and the Rehabilitation Institute of
       Michigan.



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                 Pursuant to his authorization enclosed and Section 385 of the WDCA,
         please forward a copy of all nurse case management reports that you have sent to
         the insurance company as well as a copy of any attendant care prescriptions in
         your file. We will pay the reasonable expenses for copying in accordance with
         the Michigan Health Care Service Rules.

Enclosed with the letter was a signed and notarized “HIPAA[1] DISCLOSURE
AUTHORIZATION FORM,” which expressly stated that “[t]he purpose of this release is related
to a legal matter.” On May 9, 2016, Shackelford’s lawyer sent a second request for the case
management notes and a copy of any attendant-care prescriptions in Alaris’s file. The second
request was essentially identical to the first.

         On May 31, 2016, Alaris responded as follows:

                 ALARIS initiated case management services upon referral from the
         workers’ compensation insurance company, Sentry Claims—WI.               Case
         management documentation is provided to the insurer as part of the
         reimbursement process. With insurer approval, ALARIS will fulfill your request
         for case management records.

                                               * * *

                To attain copies of medical records, please contact the health care
         provider(s) directly. Thank you.

Subsequently, on June 24, 2016, Alaris’s lawyer sent a letter denying the request and explaining:

                 Your letter demands healthcare records for your client, but appears to be
         based on inapplicable statutes and presumptions. My client is not a healthcare
         provider as defined under HIPAA; my client provides case management services
         on behalf of its insurance carrier customer (i.e. a third party payor) in relation to
         your client’s workers [sic] compensation claim. Under HIPAA, records related to
         workers [sic] compensation cases are expressly exempted from the Privacy and
         Security Rule obligations of HIPAA. While Michigan’s Medical Record Access
         Act of 2004, under MCL 333.26269, does mandate that a healthcare provider
         provide a patient with a copy of his/her record upon request, my client is not a
         healthcare provider and my client correctly answered in its previous response to
         you that healthcare records may be acquired directly from the healthcare provider
         (i.e. doctor, hospital); this is also in keeping with Michigan’s Workers
         Compensation Act, MCL 418.385. You will note that the Medical Record Access
         Act of 2004, under MCL 333.26271, expressly exempts a third party payor as
         being obligated to provide a medical record.



1
    Health Insurance Portability and Accountability Act (HIPAA), 42 USC 1320d et seq.


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Then, on June 29, 2016, Alaris’s lawyer sent a second letter, stating:

                Please be advised that ALARIS will produce copies of its reports pursuant
       to a validly issued subpoena and under a protective order. However, ALARIS
       will object to the production of any medical records on the basis that the parties to
       the litigation have equal access and those records should be obtained from the
       parties to this action, and not by third-party subpoena. . . .

        On July 19, 2016, Shackelford filed a complaint against Alaris, alleging a violation of the
Medical Records Access Act, MCL 333.26261 et seq., and a violation of the Michigan
Consumer’s Protection Act, MCL 445.901 et seq. In connection with a motion to amend the
scheduling order, Shackelford asserted—and Alaris admitted—that Shackelford had sent a
request for the production of documents to Alaris on October 7, 2016, and that after Shackelford
filed a motion to compel, Alaris provided “approximately 200 pages of records on November 18,
2016” and another 250 pages of file materials in January 2017.

        The parties filed competing motions for summary disposition. Relevant to this appeal,
Alaris argued in its reply brief that the claim under the MRAA was moot because it had released
the requested documents pursuant to a discovery request, and it asserted that Shackelford lacked
standing to seek an injunction preventing Alaris from denying other patients access to their case-
management records. After oral argument, the court granted summary disposition in Alaris’s
favor on both claims.

       This appeal follows.

                                       II. MRAA CLAIM

                                 A. STANDARD OF REVIEW

        Alaris contends that Shackelford’s claims under the MRAA are moot because the
documents he requested were released to him during discovery. Whether an issue is moot is a
question of law that is reviewed de novo. Thomas M Cooley Law Sch v Doe 1, 300 Mich App
245, 254; 833 NW2d 331 (2013). Shackelford argues that we need not address this issue because
it was not properly preserved by Alaris in the proceedings before the trial court and because the
trial court did not address it. However, courts lack jurisdiction over matters that are moot.
People v Richmond, 486 Mich 29, 35; 782 NW2d 187 (2010). Thus, whether a case is moot is a
threshold question that we must address before reaching the substantive issues of a case. In re
MCI Telecom Complaint, 460 Mich 396, 435 n 13; 596 NW2d 164 (1999). See also Richmond,
486 Mich at 35 (holding that an appellate court can sua sponte refuse to hear moot cases).

                                         B. ANALYSIS

        “A matter is moot if this Court's ruling cannot for any reason have a practical legal effect
on the existing controversy.” Cooley, 300 Mich App at 254 (quotation marks and citation
omitted). Here, because the requested documents have been turned over to Shackelford, this
Court’s ruling cannot have a practical legal effect on the existing controversy, so the issue is
moot. Yet, even if a claim is moot, as a practical matter, this Court may consider a legal issue if
it “is one of public significance that is likely to reoccur, yet evade judicial review.” Id.

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(quotation marks and citation omitted). Our Supreme Court has recognized that it is appropriate
to decline to apply the mootness doctrine “when an opposing party could, by its own conduct,
render an issue moot to preclude an aggrieved party from seeking appellate review of the issue.”
Richmond, 486 Mich at 40. In this case, however, it does not appear that Alaris sought to moot
the issue by voluntarily releasing the requested documentation. Instead, it released the
documents in response to a motion to compel the production of documents that was filed by
Shackelford and in response to a letter demanding a supplemental response to the initial
production of documents. Accordingly, we decline to address the merits of this moot issue.

                                      III. MCPA CLAIM

                                A. STANDARD OF REVIEW

      Shackelford asserts that the trial court erred by summarily dismissing his claim under the
MCPA. We review de novo a trial court’s decision on a motion for summary disposition.
Barnard Mfg Co, Inc v Gates Performance Engineering, Inc, 285 Mich App 362, 369; 775
NW2d 618 (2009).

                                        B. ANALYSIS

       Here, the first and second request for the production of records both stated that
Shackelford had retained a lawyer to represent him in connection with his workers’
compensation claim, noted that Alaris had failed to assist Shackelford in obtaining prescribed
attendant-care-services, and included a signed and notarized HIPAA disclosure authorization
form that expressly stated that the records were being sought in relation to “a legal matter.” In
Slobin v Henry Ford Health Care, 469 Mich 211, 218; 666 NW2d 632 (2003), our Supreme
Court held:

       [A] claim for damages based upon a law firm’s request for the medical records of
       a client it is representing in litigation cannot be sustained under the MCPA. Such
       a claim fails as a matter of law because obtaining medical records for the purpose
       of litigation is not ‘primarily for personal, family, or household use,’ [i.e., for
       “trade or commerce,” MCL 445.902(1)(g),] as required by the act.

Consequently, Shackelford’s claim under the MCPA must fail as a matter of law.

       Affirmed. Alaris may tax costs as the prevailing party. MCR 7.219(A).

                                                           /s/ Michael J. Kelly
                                                           /s/ Patrick M. Meter
                                                           /s/ Colleen A. O’Brien




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