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16-P-1647                                           Appeals Court

   SANDRA MONTANEZ, personal representative,1 vs.       178 LOWELL
                 STREET OPERATING COMPANY, LLC.2


                            No. 16-P-1647.

         Middlesex.       November 1, 2017. - July 31, 2019.

               Present:   Green, Rubin, & Hanlon, JJ.


Nursing Home. Evidence, Medical record. Consumer Protection
     Act, Medical service corporation, Unfair or deceptive act.
     Survival of Action. Damages, Attorney's fees. Practice,
     Civil, Consumer protection case, Survival of action.



     Civil action commenced in the Superior Court Department on
July 29, 2014.

     A motion to dismiss was heard by Maureen B. Hogan, J.; the
entry of judgment was ordered by her; and a motion for relief
from judgment was considered by her.


     Krzysztof G. Sobczak for the plaintiff.
     Joseph M. Desmond (Justin L. Amos also present) for the
defendant.




    1   Of the estate of Benita Sanchez.

    2   Doing business as Lexington Healthcare Center.
                                                                    2


    RUBIN, J.   The plaintiff, Sandra Montanez, appeals from the

judgment of dismissal of her G. L. c. 93A claim pursuant to

Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1979).     On appeal,

we take the allegations in the complaint as true, drawing all

reasonable inferences in favor of the plaintiff.   See Fairneny

v. Savogran Co., 422 Mass. 469, 470 (1996).

    On March 31, 2014, following the transfer of her mother,

Benita Sanchez, from the Lexington Healthcare Center, a nursing

home owned by the defendant (hereafter, nursing home or

defendant) in which Sanchez had lived for approximately ten

years, until August 2013, the plaintiff in her capacity as

guardian for her mother sent a request to the nursing home for

all her mother's medical records from January 1, 2013, forward.

No records were received.   On May 15, 2014, through her counsel,

she sent the nursing home a demand letter pursuant to G. L.

c. 93A, § 9.   This letter was never answered.   On May 21, 2014,

her counsel received a copy of the records, not certified as to

their completeness.   The plaintiff inventoried the records,

which appeared incomplete, and on June 27, 2014, her counsel

sent another request, this time for a certified copy of the

records.   On July 9, 2014, the request was answered by the

nursing home's counsel, who stated that the records already sent

were complete, apart from some inadvertently-omitted "interim

physician's order sheets," which he included in this
                                                                   3


correspondence.   The plaintiff then sent a final request for a

certified copy of the records on July 11, 2014.

     After receiving no response to this last request, the

plaintiff, on July 29, 2014, brought suit as her mother's

guardian, seeking damages under G. L. c. 93A and an injunction

ordering the nursing home to produce the complete records for

copying and inspection.   Immediately following service, the

nursing home offered to allow the plaintiff to inspect and copy

the records, and a judge denied the plaintiff's motion for a

preliminary injunction.   The plaintiff inspected the records at

the nursing home's counsel's office, and discovered

approximately twenty pages that had not previously been

disclosed.   The defendant filed a motion to dismiss the

complaint, which was allowed by a different judge.    The judge

concluded that the complaint did not state a claim for a G. L.

c. 93A violation, and that the claim for injunctive relief was

moot.3   The plaintiff now appeals.4




     3 The plaintiff does not challenge the dismissal of the
claim for injunctive relief.

     4 In her memorandum of law in opposition to the defendant's
motion to dismiss, the plaintiff requested, in the alternative,
leave to amend her complaint so that she could state a claim.
However, she made no formal motion. The judge initially did not
address this request; she later denied it. Because we hold that
the plaintiff stated a claim, we need not address this issue.
                                                                     4


    The plaintiff's mother died while the defendant's motion to

dismiss was under advisement.   We must at the outset therefore

address whether the cause of action survives the death of the

plaintiff's mother.   At least those claims under c. 93A that are

"contractual in nature" survive death.    See Kraft Power Corp. v.

Merrill, 464 Mass. 145, 157 (2013) (holding this, and reserving

question about survival of c. 93A claims that are not

contractual in nature).   The regulations whose violation is

alleged to form the basis of the c. 93A claim, discussed below,

are applicable here solely because of the contractual

relationship between the plaintiff's mother and the nursing home

and its medical personnel.   Consequently, we think the question

is controlled by Gasior v. Massachusetts Gen. Hosp., 446 Mass.

645, 650-651 (2006), in which the Supreme Judicial Court

concluded that a claim under G. L. c. 151B survived death

"because the employment relationship could be viewed as a

contract, and the invidious discrimination prohibited by G. L.

c. 151B was an implied term of that contractual relationship."

Kraft Power Corp., supra at 156-157.     In much the same way, the

requirements of the regulations upon which the plaintiff relies

can be viewed as derivative of her mother's contractual

relationship with the nursing home and its health care

personnel.   Consequently, the claim survives.
                                                                    5


       As to the standing of the plaintiff, we note initially

that, because the mother's estate had no personal representative

when judgment entered, the notice of appeal was properly filed

by the plaintiff's attorney of record.    See Mass. R. A. P. 30

(a), as amended, 378 Mass. 925 (1979).    However, as the estate

lacked a personal representative, the plaintiff at that time

lacked authority to pursue the appeal.   See Turner v. Minasian,

358 Mass. 425, 427 (1970).   Therefore, after argument, when the

question of the claim's survival was first raised, we stayed the

appeal pending the appointment of a personal representative of

the mother's estate.    The plaintiff was appointed personal

representative of the estate on December 28, 2018, and

subsequently filed a motion to substitute parties, Mass.

R. A. P. 30 (a), which we allowed.    The plaintiff therefore has

standing to pursue the appeal in her capacity as personal

representative of her mother's estate.

       As to the merits, this is not a malpractice claim, so it

falls into the category of "entrepreneurial and business aspects

of providing medical services" that is actionable under G. L.

c. 93A.   Darviris v. Petros, 442 Mass. 274, 279 (2004).   The

defendant is correct that the violation of a regulation does not

automatically give rise to a c. 93A violation.    See id. at 281-

284.    Instead, the question is whether the defendant committed

an unfair or deceptive act or practice in the conduct of trade
                                                                     6


or commerce, whether the plaintiff was injured, and whether the

defendant's unfair or deceptive act or practice caused the

plaintiff's injury.   See Herman v. Admit One Ticket Agency LLC,

454 Mass. 611, 615-616 (2009).    Still, assuming that the facts

in the complaint are true, and drawing all reasonable inferences

in favor of the plaintiff, the defendant's repeated omission of

documents from its disclosures to the plaintiff, its failure to

produce complete records for approximately four months, and its

offer to allow the plaintiff to inspect and copy its records

only (and immediately) after litigation commenced, constitute

violations of Federal regulations in ways that qualify as unfair

or deceptive.   Our conclusion is guided by the self-evident

importance of the availability of medical records to consumers.

    Title 45 C.F.R. § 164.524(b)(2)(i) (2014) requires a

covered entity -– and the defendant does not suggest the nursing

home is not covered -– to grant, or deny with written reasons, a

request by any individual for access to medical records it

maintains about the individual "no later than 30 days after

receipt of the request."    In failing to provide complete records

during that time, and in providing them only after the plaintiff

filed a lawsuit several months after the deadline expired, the

defendant did neither.     Title 45 C.F.R. § 164.524(b)(2)(ii)

(2014) allows a covered entity to get a single thirty-day

extension, but only if it gives the patient a written statement
                                                                    7


containing the reason for the delay and an estimated production

date, which was not done here.    Even if the defendant here had

provided the plaintiff with the requisite statement for the

delay, its response still would have been about two months late.

    The plaintiff argues that the defendant violated various

other regulations that, unlike those cited above, apply by their

terms to "residents" of long-term care facilities.    The

defendant argues that these regulations do not apply to former

residents, like the plaintiff's mother.    Since we conclude that

the complaint alleges violations of § 164.524(b)(2)(i) that

suffice to describe a c. 93A claim, even were the defendant

correct, something we need not and do not decide, reversal would

be required.

    Finally, the defendant argues that there was no injury

alleged here.   The plaintiff points to the legal fees involved

in her attempt to obtain the records.    The defendant responds

that legal fees are not cognizable as an injury flowing from an

alleged violation of c. 93A.     But as we have explained, "If a

c. 93A violation forces someone to incur legal fees and expenses

that are not simply those incurred in vindicating that person's

rights under the statute, those fees may be treated as actual

damages in the same way as other losses of money or property."

McLaughlin v. American States Ins. Co., 90 Mass. App. Ct. 22, 33
                                                                   8


(2016), quoting Siegel v. Berkshire Life Ins. Co., 64 Mass. App.

Ct. 698, 703 (2005).

       The attachments to the complaint include the letter dated

June 27, 2014, sent by the plaintiff's counsel in response to

the apparent provision of incomplete records by the defendant.

This letter seeks provision of all the plaintiff's mother's

records on the basis of Federal regulations.    It sought to

vindicate her rights under those regulations, not G. L. c. 93A.

Likewise, the complaint includes a free-standing count for

injunctive relief.    That, too, seeks to vindicate the

plaintiff's underlying rights rather than her rights under c.

93A.    Should the plaintiff prevail, the legal fees incurred in

the preparation of both the letter and the aspect of this case

that does not depend on success under c. 93A would amount to

actual damages incurred as a result of the defendant's failure

timely to provide the records at issue.    Costs like these

incurred as a result of the underlying violative conduct are

recoverable as damages.    See McLaughlin, 90 Mass. App. Ct. at

33, citing Rivera v. Commerce Ins. Co., 84 Mass. App. Ct. 146,

149 (2013)).   See also Columbia Chiropractic Group, Inc. v.

Trust Ins. Co., 430 Mass. 60, 63 (1999) ("counsel fees and

expenses and expert witness expenses" in litigation that was

result of plaintiff's false and deceptive act or practice

properly treated "as damages" in c. 93A action brought as
                                                                 9


counterclaim).   They are not "simply those [fees] incurred in

vindicating [the plaintiff's] rights under" c. 93A.   McLaughlin,

supra.   The judgment is reversed.

                                     So ordered.
