No. 17-0038 –	        State of West Virginia ex rel. HealthPort Technologies, LLC and
                      Charleston Area Medical Center v. Honorable James C. Stucky, Judge
                      of the Circuit Court of Kanawha County, West Virginia, and Basil
                      Crookshanks, on behalf of himself and all others similarly situated

                                                                             FILED
                                                                          June 15, 2017
                                                                             released at 3:00 p.m.
                                                                           RORY L. PERRY, II CLERK
                                                                         SUPREME COURT OF APPEALS
Davis, Justice, dissenting, joined by Justice Workman:	                       OF WEST VIRGINIA



              In its decision of this case, the majority determined that Mr. Crookshanks does

not have standing to pursue his claim under the West Virginia Health Care Records Act,

W. Va. Code § 16-29-1 et seq. However, the issue of standing is not properly before the

Court. The circuit court mentioned standing in its order denying HealthPort’s motion for

summary judgment only tangentially, and HealthPort, itself, bases its entire petition for writ

of prohibition upon its argument that Mr. Crookshanks’ claim is not yet ripe for judicial

consideration. As such, the issue of standing was not the question presented for the Court’s

resolution in this case; rather, the matter to be addressed was one of ripeness. Because the

majority’s decision of this case is both procedurally and legally wrong, I respectfully dissent.



                        Majority’s Opinion is Procedurally Wrong

              Procedurally, while the circuit court mentioned the word standing in its order,

HealthPort’s argument before this Court, related to said order, is that the case is not ripe for

consideration by the circuit court. Standing and ripeness are two different things: standing




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speaks to whether a particular person may bring a claim1 while ripeness concerns whether

a court may properly hear a claim.2 HealthPort does not argue before this Court that Mr.

Crookshanks does not have standing nor does HealthPort discuss the Findley standing

elements in its brief. Rather, HealthPort’s arguments focus on whether the subject claim is

ripe for the Court’s consideration. Thus, the majority’s opinion focusing on standing is

procedurally wrong because an appellate court is, in the main, constrained to consider and

resolve only those matters properly raised by the parties’ arguments–not those that the Court

decides to entertain sua sponte. See generally State v. White, 228 W. Va. 530, 541 n.9, 722

S.E.2d 566, 577 n.9 (2011) (“Typically, this Court will not address issues that have not been

properly briefed.” (citations omitted)); State v. LaRock, 196 W. Va. 294, 302, 470 S.E.2d

613, 621 (1996) (“Although we liberally construe briefs in determining issues presented for

review, issues which are not raised, and those mentioned only in passing . . ., are not

considered on appeal.” (citation omitted)); State, Dep’t of Health & Human Res. v. Robert

Morris N., 195 W. Va. 759, 765, 466 S.E.2d 827, 833 (1995) (“[A] skeletal ‘argument’ . . .

does not preserve a claim. . . .” (internal quotations and citations omitted)).




              1
              See Syl. pt. 5, Findley v. State Farm Mut. Auto. Ins. Co., 213 W. Va. 80, 576
S.E.2d 807 (2002) (enumerating elements of “standing”).
              2
              See National Park Hosp. Ass’n v. Department of Interior, 538 U.S. 803, 807,
123 S. Ct. 2026, 2030, 155 L. Ed. 2d 1017 (2003) (explaining doctrine of “ripeness”).

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                            Majority’s Opinion is Legally Wrong

               Legally, the majority’s opinion also is wrong. The opinion should have

addressed HealthPort’s arguments regarding ripeness. “Ripeness is a justiciability doctrine

designed to prevent the courts, through avoidance of premature adjudication, from entangling

themselves in abstract disagreements[.]” National Park Hospitality Ass’n v. Department of

Interior, 538 U.S. 803, 807, 123 S. Ct. 2026, 2030, 155 L. Ed. 2d 1017 (2003) (internal

quotations and citations omitted). The test for ripeness has been explained as follows:

“Determining whether . . . [an] action is ripe for judicial review requires us to evaluate (1)

the fitness of the issues for judicial decision and (2) the hardship to the parties of withholding

court consideration.” Id. at 808, 123 S. Ct. at 2030, 155 L. Ed. 2d 1017 (citation omitted).



               The claim asserted by Mr. Crookshanks arises under the West Virginia Health

Care Records Act, which specifically provides for the enforcement of a violation of the Act:

“The provisions of this article may be enforced by a patient, authorized agent or authorized

representative, and any health care provider found to be in violation of this article shall pay

any attorney fees and costs, including court costs incurred in the course of such

enforcement.” W. Va. Code § 16-29-1(d) (2014) (Repl. Vol. 2016). Mr. Crookshanks, a

patient seeking his own medical records, is a proper person to bring this claim, and it is ripe

for consideration by the circuit court because all of the elements giving rise to the cause of

action have occurred: “[a] person requesting records from a provider shall place the request


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in writing and pay a reasonable, cost-based fee, at the time of delivery.” W. Va. Code § 16­

29-2(a) (2014) (Repl. Vol. 2016). In other words, Mr. Crookshanks’ medical records have

been requested, delivered per the request, and a fee was charged and paid for said medical

records. Moreover, if the court withholds consideration of the claim asserted, particularly

until resolution of the underlying medical malpractice action, it is likely that the statute of

limitations could bar Mr. Crookshanks’ claim under the Act or, if such claim is stayed, that

he will incur the financial burden associated with paying sums that were not properly charged

in the first instance.



               Furthermore, assuming arguendo that the majority’s opinion properly

considered and resolved the question of standing, the opinion still is legally wrong.

                      Standing is comprised of three elements: First, the party
               attempting to establish standing must have suffered an “injury­
               in-fact”–an invasion of a legally protected interest which is (a)
               concrete and particularized and (b) actual or imminent and not
               conjectural or hypothetical. Second, there must be a causal
               connection between the injury and the conduct forming the basis
               of the lawsuit. Third, it must be likely that the injury will be
               redressed through a favorable decision of the court.

Syl. pt. 5, Findley v. State Farm Mut. Auto. Ins. Co., 213 W. Va. 80, 576 S.E.2d 807 (2002).

Mr. Crookshanks clearly has standing to pursue a claim under the West Virginia Health Care

Records Act because “a patient” is among the enumerated persons who may bring a claim

under the Act. See W. Va. Code § 16-29-1(d). Additionally, the provision of the Act sought

to be enforced in this case requires a request for medical records, the delivery of such

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records, and payment therefor. See W. Va. Code § 16-29-2(a). This provision does not

specify or require that the patient be the actual person paying for such records; however, even

if it did, payment was made on behalf of Mr. Crookshanks for his medical records, and

HealthPort allegedly charged an excessive fee for such records. It is of no concern to

HealthPort who actually paid for Mr. Crookshanks’ medical records so long as payment was

made therefor. Finally, a favorable decision of the court will redress the injury: the alleged

overpayment for Mr. Crookshanks’ medical records will be cured without further injury to

Mr. Crookshanks if the court decides in his favor at the present time.



              Accordingly, for the foregoing reasons, I respectfully dissent. I am authorized

to state that Justice Workman joins me in this separate opinion.




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