                IN THE COURT OF APPEALS OF TENNESSEE

                                                        FILED
BRENDA PRATT,                        )   C/A NO. 03A01-9701-CV-00024
                                     )               November 18, 1997
     Plaintiff-Appellant,            )
                                     )                  Cecil Crowson, Jr.
                                     )                  Appellate C ourt Clerk
                                     )   APPEAL AS OF RIGHT FROM THE
v.                                   )   KNOX COUNTY CIRCUIT COURT
                                     )
                                     )
                                     )
SMART CORPORATION,                   )
                                     )   HONORABLE HAROLD WIMBERLY,
     Defendant-Appellee.             )   JUDGE




For Appellant                            For Appellee

DONALD K. VOWELL                         DAN D. RHEA
ROBERT R. CARL II                        Arnett, Draper & Hagood
Vowell & Carl                            Knoxville, Tennessee
Knoxville, Tennessee

JAMES H. HICKMAN III
Knoxville, Tennessee

THOMAS A. SNAPP
Ayres & Parkey
Knoxville, Tennessee




                            OPINION




VACATED AND REMANDED                                               Susano, J.

                                 1
          The plaintiff, Brenda Pratt (“Pratt”), filed suit to

recover a portion of the payment made by her to the defendant,

Smart Corporation (“Smart”), for copies of her medical records.

The trial court granted Smart’s motion for summary judgment,

concluding that the relevant statute does not permit a “recovery

for this plaintiff against this defendant.”    Pratt appealed,

raising several issues which in essence present the following

questions for our review:



          1. Does the record contain evidence from
          which a jury could conclude that a charge by
          a hospital’s agent, i.e., Smart, of $28.58
          for copies of four pages of medical records
          was in excess of “the reasonable costs of
          copying and mailing the patient’s records,”
          according to the Medical Records Act of 1974,
          T.C.A. § 68-11-304(a)(2)(A), thus rendering
          the transaction voidable?

          2. Does the record contain evidence from
          which a jury could conclude that Pratt’s
          payment of Smart’s invoice constitutes a
          voidable contract of adhesion?



Smart, on the other hand, frames the issue before us as follows:



          May a personal injury claimant who has
          voluntarily paid the invoice of a hospital
          record copying service for copies of her
          hospital chart later sue the copying service
          for a partial refund of her payment on the
          ground that the payment violated the
          hospital’s statutory right to recoup
          “reasonable costs of copying and mailing”?



                            I.   Facts



          The events that precipitated this litigation began when

Pratt was injured in an automobile accident.    She received


                                 2
treatment for her injuries at Fort Sanders Hospital (“the

hospital”) in Knoxville.      Wishing to pursue a claim against the

driver of the other vehicle, Pratt subsequently requested,

through her attorney, copies of her hospital records.            The

hospital referred the request to Smart, a “copy company” that it

had retained to handle written requests for copies.           Smart

furnished copies of the four-page medical record to Pratt’s

attorney, along with an invoice for $28.58.          Pratt’s attorney

then paid the invoice.



           On June 16, 1995, Pratt filed, as the representative

plaintiff1, a class action complaint against Smart, pursuant to

the provisions of the Medical Records Act of 1974, T.C.A. § 68-

11-301, et seq. (“the Act”).       Smart subsequently moved for

summary judgment.     The trial court declined to certify the class

pending resolution of Smart’s motion for summary judgment.               The

trial court ultimately granted summary judgment in favor of

Smart, stating that



           there is no factual dispute about anything
           happening in this case. And it is further
           the opinion [of the court] that the statute
           in question which is, as I said, the basis of
           the plaintiff’s claim, does not allow
           recovery for this plaintiff against this
           defendant.



The trial court did not otherwise state its rationale for

granting summary judgment.




     1
       In addition to Pratt, Travis Maxson was originally named as a
representative plaintiff. However, an order of voluntary dismissal was
entered as to him on February 1, 1996.

                                      3
4
                       II.   Standard of Review



          We measure the propriety of the trial court’s grant of

summary judgment against the standard of Rule 56.04,

Tenn.R.Civ.P., which provides that summary judgment is

appropriate where



          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.



When reviewing a grant of summary judgment, an appellate court

must decide anew if judgment in summary fashion is appropriate.

Cowden v. Sovran Bank/Central South, 816 S.W.2d 741, 744 (Tenn.

1991); Gonzalez v. Alman Constr. Co., 857 S.W.2d 42, 44-45

(Tenn.App. 1993).    Since this determination involves a question

of law, there is no presumption of correctness as to the trial

court’s judgment.    Id.



                    III.   The Parties’ Contentions



          Pratt contends that there is evidence from which a jury

could conclude that Smart violated the Act by charging $28.58 for

copies of four pages of hospital records.     The Act provides, in

pertinent part, that




                                   5
           ...a hospital shall furnish to a patient or a
           patient’s authorized representative such part
           or parts of such patient’s hospital records
           without unreasonable delay upon request in
           writing by the patient or such
           representative.

           The party requesting the patient’s records
           shall be responsible to the hospital for the
           reasonable costs of copying and mailing the
           patient’s records.



T.C.A. § 68-11-304(a)(1), (a)(2)(A).   The Act provides that a

willful violation of its terms constitutes a Class C misdemeanor.

T.C.A. § 68-11-311(a).   It also limits an offending party’s civil

liability to “actual damages... for willful or reckless or

wanton” violations.   T.C.A. § 68-11-311(b).



           Pratt argues that the Act was intended to protect

patients from incurring excessive charges in obtaining copies of

their medical records.   She contends that Smart falls within the

ambit of the Act and that there is evidence from which a jury

could conclude that Smart willfully, intentionally, or wantonly

violated its provisions in the following ways: by charging her a

grossly excessive, unreasonable amount; by using such excessive

charges to “subsidize” free copies provided to doctors and

hospitals; and by abusing its “monopoly power” over her medical

records.



           Pratt contends that Smart’s violation of the Act

renders her attorney’s payment of the invoice a voidable

transaction, in accordance with the doctrine of Newton v. Cox,

878 S.W.2d 105 (Tenn. 1994).   In Newton, the Supreme Court found

that a 50% contingency fee agreement between an attorney and


                                 6
client in a medical malpractice case was in violation of T.C.A. §

29-26-120, which sets the maximum contingency fee arrangement in

such cases at one-third.    The Court found that the contract in

question violated the public policy embodied in the statute, and

that as a result, the contract was voidable by the client.    The

Court stated as follows:



          The prevailing view which has also been
          applied in Tennessee is that contracts are
          voidable and not void when they violate
          statutes enacted for the protection of the
          public interests or for the protection of the
          class of persons of which the party seeking
          to avoid the contract is a member.



Newton, 878 S.W.2d at 108 (citations omitted).    In the instant

case, Pratt argues that the Act incorporates a public policy of

protecting medical patients from excessive charges for copies of

their records, and that the legislative history of the Act

supports this conclusion.    Pratt contends that Smart’s actions

constitute a violation of the Act and that the subject

transaction therefore is voidable under the principle set forth

in Newton.



          As a second theory of recovery, Pratt argues that the

record contains evidence from which a jury could conclude that

her attorney’s payment of Smart’s invoice constitutes a voidable

contract of adhesion.



          Smart, on the other hand, advances a variety of

theories to support the trial court’s grant of summary judgment

in its favor.   As previously indicated, the trial court did not


                                  7
give a detailed explanation for its decision that “the statute in

question...does not allow recovery for this plaintiff against

this defendant.”   We will not attempt to discern the reasons for

the trial court’s decision but instead will review the record de

novo without a presumption of correctness, Gonzales, 857 S.W.2d

at 44, to determine if summary judgment for Smart is appropriate.



          Smart’s primary defense to Pratt’s claim, and its

principal argument for sustaining the trial court’s decision, is

based upon the voluntary payment rule.    That doctrine provides

that where one makes a voluntary payment with knowledge of all

relevant facts, and then sues to recover that payment, there

generally can be no recovery, even if there was no legal

liability to pay in the first place.     Roach v. Underwood, 241

S.W.2d 498, 499 (Tenn. 1951).   In accordance with this principle,

Smart contends that Pratt is barred from recovery, due to the

fact that her attorney voluntarily paid the invoice with

knowledge of all relevant facts.



          Smart relies upon the case of Cotton v. Med-Cor Health

Information Solutions, Inc., 472 S.E.2d 92, 221 Ga.App. 609

(1996), a decision of the Georgia Court of Appeals.     In that

case, the court held that the plaintiffs -- former hospital

patients who alleged that they had been overcharged for copies of

their medical records -- were barred from recovery, due to their

voluntary payment of the invoices for such copies, regardless of

the fact that the charges were in violation of a statute, which

is similar to the one in the instant case.     Id. at 96.   Smart




                                   8
argues that the same reasoning is applicable to the case now

before us.



           In addition, Smart offers various arguments regarding

the scope and purpose of the Act.    Specifically, it contends that

the Act does not authorize a lawsuit of this kind or provide a

cause of action against an independent copying service.    Pratt

then insists that the Act’s “reasonable costs” provision imposes

a duty upon requestors of medical records, rather than upon

hospitals, which Smart maintains are the intended beneficiaries

of that provision.   Smart also contends that any resort to the

Act’s legislative history is unwarranted, since an ordinary

construction of the statute shows that the Act is an “access”

statute, benefitting patients who require access to their

records.   According to Smart, Pratt was not in the class of

persons protected by the Act, since she had already obtained

access to her records at the time she filed suit.   Smart further

argues that the Act merely provides a recipient of copies with a

defense to unreasonable charges, and that such defense may be

waived, e.g., under the voluntary payment rule.   In addition,

Smart contends that since the Act fails to set forth any maximum

charge for copies of medical records, the only standard by which

such charges are measured is that of reasonableness; thus,

according to Smart, the definition of what constitutes a

“reasonable” cost is left entirely to the parties to a given

transaction: if an invoice is rendered and paid, the parties to

the transaction have agreed that the cost is reasonable,

regardless of the amount.




                                 9
          As further support for the trial court’s decision,

Smart argues that the charge of $28.58 was not unreasonable.     It

maintains that shifting copying costs away from health care

providers, at the expense of individual patients, is not

unreasonable.   As an additional theory, Smart argues that the

parties were in pari delicto, thus precluding either party from

seeking relief on the basis of any illegality in the contract.

Finally, Smart contends that the subject transaction cannot be

considered a contract of adhesion, since Pratt’s attorney paid

the invoice after his receipt of the copies.



          In response to Smart’s contentions, Pratt submits the

following arguments: that the jury could conclude that the

payment of the invoice by Pratt’s attorney was not voluntary,

given Smart’s monopoly over her hospital records; that the Act

does provide a private cause of action to remedy violations of

its terms; that the Act’s failure to establish a maximum amount

for copy charges is irrelevant, since the paramount question is

whether the contract violates the public policy embodied in the

Act; that the Act speaks in terms of reasonable costs, rather

than charges, and a jury could conclude that $28.58 exceeded the

reasonable costs of copying and mailing Pratt’s records; that an

agent may not accomplish for its principal an act which the

principal is forbidden to accomplish itself, and that therefore

Smart is liable despite the Act’s failure to specifically address

independent copying companies; and finally, that Pratt was not in

pari delicto with Smart.



         IV.    Application of the Voluntary Payment Rule


                                 10
               We shall first address Smart’s primary contention --

that Pratt’s claim is barred by virtue of her attorney’s

voluntary payment of the invoice.              Our review of the record and

the relevant case law persuades us that the voluntary payment

rule is not applicable to bar this action.



               We recognize that Smart’s position is in accord with

the Georgia case of Cotton v. Med-Cor Health Information

Solutions, Inc., 472 S.E.2d 92, 221 Ga.App. 609 (1996).             That

decision is based upon a specific Georgia statute2 that sets

forth that state’s version of the voluntary payment rule.             In

Tennessee, however, the voluntary payment rule finds its genesis

in the common law.         See, e.g., Roach v. Underwood, 241 S.W.2d 498

(Tenn. 1951).        Other authority in this jurisdiction indicates

that this common law doctrine is not universally applicable to

all transactions.         Specifically, the case of Newton v. Cox, 878

S.W.2d 105 (Tenn. 1994), illustrates that the voluntary payment

rule does not come into play in situations involving a

transaction that violates public policy.              In that decision, the

Supreme Court held that a medical malpractice client could

recover an excessive fee that he had already remitted but which

was in derogation of the public policy behind a specific statute.

Id.   Newton thus recognizes that, where public policy has been

established by a legislative enactment, a transaction that is

violative of that policy is subject to inquiry even though it may

be fully consummated.           See Id.   In other words, the State has an

interest in transactions that involve violations of statutorily-



      2
          O.C.G.A. § 13-1-13.

                                          11
defined public policy, and, generally speaking, in such

situations, the voluntary payment rule will not be applicable.

Relying on Newton and its analysis, we find that the voluntary

payment rule presents no impediment to Pratt’s cause of action,

and thus does not provide an adequate basis for sustaining the

trial court’s grant of summary judgment in favor of Smart.3



               V.   Analysis of Smart’s Other Arguments



            We turn now to Smart’s other justifications for the

trial court’s grant of summary judgment.          Initially, we disagree

with Smart to the extent that it argues that the Act does not

authorize a cause of action such as the one in this case.             The

Act clearly contemplates private actions to remedy violations of

its terms, as evidenced by its provision for the recovery of

“actual damages in a civil action for willful or reckless or

wanton” violations.      See T.C.A. § 68-11-311.



            Secondly, we disagree with Smart’s contention that by

its terms, the Act does not apply to independent copying

services.    It is true that the Act does not specifically mention

such entities; nevertheless, it is clear in this case that Smart

acted as the hospital’s authorized agent, and, as such, could not

perform acts which the hospital was forbidden by law to perform

itself.   Furthermore, in the Cotton case, upon which Smart

relies, the Georgia Court of Appeals specifically held that a

statute substantially similar to the Act was applicable to



     3
       Given this conclusion, we find it unnecessary to address Pratt’s
argument that her attorney’s payment of Smart’s invoice was not “voluntary.”

                                      12
independent copying services.   Cotton, 472 S.E.2d at 95.    The

court in Cotton stated that the legislature’s objective of

ensuring that patients have access to medical records at a

reasonable cost



           would be completely defeated through a
           construction of the Act that would allow
           patients to be charged more than the
           reasonable copying and mailing costs if the
           providers hire others to perform the task of
           supplying the records.



Id.   We agree with this reasoning, and we therefore find that the

Act applies to independent entities that are retained to provide

copying services for hospitals.



           As set forth earlier in this opinion, Smart presents

several arguments pertaining to the proper construction and

application of the Act.   We agree with Smart that, in the absence

of any ambiguity, the Act need only be enforced as written,

without reference to its legislative history.   See In re

Conservatorship of Clayton, 914 S.W.2d 84, 90 (Tenn.App. 1995).

We take issue, however, with several aspects of Smart’s analysis

of the Act and its application to the facts before us.      We

disagree that the Act’s “reasonable costs” provision was intended

to benefit only the hospital by imposing a duty of payment upon a

requestor of medical records.   On the contrary, that provision

was clearly intended to protect a requestor of records from

excessive charges.   We also disagree with Smart’s contention that

the Act only confers upon a patient a defense to unreasonable

charges, and that such defense can be waived by a voluntary



                                  13
payment of the amount charged.       As stated earlier, the Act

benefits the patient by providing the remedy of actual damages,

and the voluntary payment rule will not be implicated where a

transaction is in violation of its terms.



           By the same token, we disagree with Smart’s position

that the Act’s failure to establish a definite maximum charge

allows the parties to define “reasonable” costs in any way that

they choose.    An excessive amount, although tacitly agreed to by

the parties, will nevertheless violate the provisions of, and

policy behind, the Act.      We also find no merit in the argument

that because she had already received copies of her medical

records at the time she filed suit, Pratt was not in the class of

persons protected by the Act, i.e., individuals seeking access to

their medical records.      We agree that the Act serves to provide

patients with access to their records; however, as previously

discussed, the Act also is intended to protect such individuals

from excessive charges.      This latter protection is available

whether or not the records have been received.          Pratt thus falls

squarely within the protective ambit of the Act.           Likewise, the

fact that it was Pratt’s attorney, rather than Pratt herself, who

received the records and paid the invoice presents no obstacle to

Pratt’s claim, since her attorney clearly acted on her behalf in

obtaining the records.4



           We also find Smart’s theory that the parties were in

pari delicto to be without merit.         This is not a situation in

     4
       The attorney would not be entitled to the records in the absence of a
written authorization from Pratt. Thus, Smart knew that it was dealing with
an agent for a disclosed principal. This was a transaction between Pratt and
Smart.

                                     14
which both parties to a transaction were involved in improper

conduct.   Neither Pratt nor her attorney were involved in setting

the price of the copies, and the mere fact that her attorney had

previously engaged in similar transactions with Smart is

insufficient to establish such a defense.



           Finally, Smart argues that the charge of $28.58 for

copying and mailing Pratt’s medical records was reasonable.     We

believe that this represents a disputed question of fact that is

properly left for the trier of fact.



                          VI.   Conclusion



           Finding no basis for the trial court’s grant of summary

judgment in this case, we conclude that the judgment now before

us is erroneous.   Given this determination, we do not find it

necessary to address the question of whether the subject

transaction constitutes a voidable contract of adhesion.



           The judgment of the trial court is hereby vacated.

Costs on appeal are assessed to the appellee.    This case is

remanded to the trial court for such further proceedings as are

necessary, consistent with this opinion.



                                      __________________________
                                      Charles D. Susano, Jr., J.




                                 15
CONCUR:



_________________________
Houston M. Goddard, P.J.



_________________________
William H. Inman, Sr.J.




                            16
