Lack of Patient-Provider Relationship Dooms Health Care Exemption

TCPA Connect

Ruling on the health care exemption in the context of phone calls from an eye care provider, the U.S. District Court, Northern District of Illinois recently held that a plaintiff’s Telephone Consumer Protection Act (TCPA) suit survived a motion to dismiss due to a lack of an established patient-provider relationship. As discussed in more detail below, the consumer had made an inquiry with the eye care provider but did not receive care, and thus, the exemption may not apply.

Sometime in 2018, Jennifer Murtoff reached out to MyEyeDr. via email, asking about the cost of a new pair of eyeglasses.

Afterward, she began receiving automated phone calls from MyEyeDr. and its corporate entity, Capital Vision Services. Although Murtoff requested in August 2020 that the calls stop, she continued to receive them until at least March 2021.

Murtoff filed a putative class action, alleging violations of the TCPA. The defendants filed a partial motion to dismiss on the part of the claim that relied on the lack of prior express written consent, arguing that the calls were health care messages.

But U.S. District Judge Edmond E. Chang denied the motion.

The Federal Communications Commission (FCC) has issued two health care exemptions from the TCPA, one of which was applicable. Modeled after the Federal Trade Commission’s (FTC) health care exception to its Telemarketing Sales Rule, the 2012 exemption covers any call that “Delivers a ‘health care’ message made by, or on behalf of, a ‘covered entity’ or its ‘business associate,’ as those terms are defined in the HIPAA Privacy Rule,’” he explained.

Judge Chang then followed the three-part test established by a New York federal court in Zani v. Rite Aid Hdqtrs. Corp. to determine whether the exemption applies.

In that case, the court canvassed the relevant text and administrative guidance to arrive at three considerations: first, whether the call “concerns a product or service that is inarguably health-related”; second, whether the call “was made by or on behalf of a health care provider to a patient with whom she has an established health care treatment relationship”; and finally, whether the call “concerns the individual health care needs of the patient recipient.”

Judge Chang wasted little ink on the first factor, finding that an eye exam is a common form of health care.

“Eye exams provide preventative and diagnostic care,” he wrote. “And, as Murtoff herself alleges, MyEyeDr. is a provider of those services. So the alleged eye-exam calls qualify as services that are ‘inarguably health-related’ and ‘provided by … the covered entity making the communication.’”

Turning to the second factor, the court determined that it tipped in favor of Murtoff. Although she emailed MyEyeDr. in 2018 for a quote on a pair of glasses, a single email inquiry—one that was never consummated in any rendering of health care—was insufficient to invoke the health care exemption to TCPA liability, the court said.

“It would be odd indeed, in plain-language terms, for MyEyeDr. to call itself Murtoff’s ‘health care provider’ when all it did was receive a query from Murtoff on the costs of a pair of eyeglasses,” Judge Chang wrote.

As for the third factor, the court found that it too weighed in favor of deeming the calls as falling outside the protection of the health care exemption.

“As far as the complaint goes … there was nothing individualized about the solicitation, ‘according to our records, it’s time for your next eye exam,’” the court said. “What records? How did MyEyeDr. know that it was time for Murtoff’s next eye exam? On what individualized basis did MyEyeDr. target Murtoff with that message? None is apparent on the face of the complaint.”

Reading the complaint in the light most favorable to the plaintiff, Judge Chang concluded that Murtoff adequately stated a claim for the calls made without express prior written consent.

To read the memorandum opinion and order in Murtoff v. MyEyeDr. LLC, click here.

Why it matters: TCPA defendants seeking to rely on the health care exemption cannot rely solely on being in the health care business generally. The exemption may not apply where the message is generalized and capable of being sent to any member of the public rather than a specific patient or set of patients, and likely does not apply during the inquiry but pre-care phase of a consumer’s explorations seeking a provider. Judge Chang also suggested defendants in such matters may sometimes be better served to wait until the summary judgment stage of the proceedings. Murtoff had the better argument at the pleading stage, the court pointed out, and “the consideration of the relationship between the plaintiff and the defendant might very well benefit from a discovery record so that the specifics of the relationship can be fleshed out.”

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