Published and Unpublished Decisions for COAKY for May 17, 2013

Click HERE For this week’s COA minutes and decisions
No. 477 – 497;  21 decisions; 3 decisions “To Be Published”
Click here for complete list of all COA minutes that you can download.

This week the following issues were addressed by COAKY:

DNA testing appeal reversing trial court decision based upon recent change in state’s DNA testing statute;  quiet title action; and for those practicing personal injury law a case in which summary judgment was granted against a chiropractor who refused to provide a patient’s attorney his “one free copy” for free and insisted upon charging the lawyer for the records (for the record, the COA said nope).

PUBLISHED DECISIONS –

479. CRIMINAL LAW.  DNA TESTING
VIRGIL VS. COMMONWEALTH OF KENTUCKY
OPINION REVERSING AND REMANDING
VANMETER (PRESIDING JUDGE)
ACREE (CONCURS) AND DIXON (CONCURS)
2011-CA-001673-MR
TO BE PUBLISHED
CAMPBELL

VANMETER, JUDGE: William Virgil appeals from the Campbell Circuit Court’s August 12, 2011, order granting the Commonwealth’s motion to reconsider the court’s May 20, 2011, order which granted Virgil’s motion for DNA testing of certain items of evidence from his criminal trial. In light of a recent amendment to the DNA testing statute, we reverse the August 12, 2011, order and remand with instructions for the trial court to enter an appropriate order.

489. PROPERTY.  QUIET TITLE.
VICK VS. ELLIOTT
OPINION AFFIRMING
VANMETER (PRESIDING JUDGE)
ACREE (CONCURS) AND TAYLOR (CONCURS)
2012-CA-000364-MR
TO BE PUBLISHED
LIVINGSTON

VANMETER, JUDGE: David Vick appeals from the judgment of the Livingston Circuit Court which denied his claim to quiet title and granted the counterclaim of adverse possession asserted by Belinda K. Elliott, et al.1 (hereinafter collectively referred to as the “Doom heirs”). Finding no error, we affirm.

490
ERIKSEN, P.S.C. (WILLIAM C.) VS. GRUNER & SIMMS, PLLC
OPINION AFFIRMING
ACREE (PRESIDING JUDGE)
DIXON (CONCURS) AND THOMPSON (CONCURS)
2012-CA-000563-MR
TO BE PUBLISHED
JEFFERSON

ACREE, CHIEF JUDGE: William C. Eriksen, P.S.C. d/b/a Eriksen Chiropractic Centers, appeals from a summary judgment granted by the Jefferson Circuit Court to Gruner & Simms, PLLC.

This appeal concerns the interpretation of Kentucky Revised Statutes (KRS) 422.317(1), which provides as follows:

Upon a patient’s written request, a hospital licensed under KRS Chapter 216B or a health care provider shall provide, without charge to the patient, a copy of the patient’s medical record. A copying fee, not to exceed one dollar ($1) per page, may be charged by the health care provider for furnishing a second copy of the patient’s medical record upon request either by the patient or the patient’s attorney or the patient’s authorized representative.

Gruner & Simms, PLLC, a law firm, filed a petition for declaratory relief in the Jefferson Circuit Court after Eriksen refused to provide Gruner with a free copy of one of its client’s medical records. Eriksen’s policy is outlined in a letter sent to one of Gruner’s attorneys:

Pursuant to Kentucky statute, we provide our patients one free copy of their medical records. This one free copy of records is provided to our patients in order to enable them to educate themselves with regard to their medical history.

All other persons including attorneys and authorized representatives requesting records on behalf of an Eriksen Chiropractic patient must first notify us in writing by mailed letter that they agree to pay $1.00 per page in copying fees associated with tendering the patent’s records. An invoice for these copying fees will be sent with the records after your letter agreeing to pay these fees for the specified patient is received by our office. Please be advised that due to the large volume of records requests received by our office, we cannot provide total records copying costs in advance.

Please tender a letter to the address above . . . agreeing to pay the copying fees associated with your records request in order to receive the records you desire.

(Emphasis in original.)

Eriksen filed a counter-petition, presenting an alternative interpretation of the statute and also challenging its constitutionality.1 The circuit court granted summary judgment in favor of Gruner on March 2, 2012. This appeal by Eriksen followed.

Furthermore, state government often passes laws that increase the cost of doing business. Whether health care providers factor into their pricing the possibility of incurring expenses associated with statutory compliance is a business decision the government usually does not make for a business. At least it has not in this case. These constitutional arguments, therefore, necessarily fail.

The order granting summary judgment is affirmed. ALL CONCUR.

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