Second Circuit Takes Sting out of Flu Shot Suit

TCPA Connect

The U.S. Court of Appeals for the Second Circuit ruled that the Healthcare Exception to the TCPA applied to a case involving a healthcare provider that sent a text message with a flu shot reminder to a patient who provided his cellphone number for “treatment” purposes.

Daniel Latner went to West Park Medical Group (WPMG), a Mt. Sinai Health System facility, in 2003 for a routine overall health examination. He filled out various forms and provided his cellphone number, granting consent to Mt. Sinai to use his health information “for payment, treatment and hospital operations purposes.”

In 2011, Mt. Sinai hired a third party to send mass messages on its behalf, including transmitting flu shot reminder texts. Latner returned to WPMG in 2011 and declined any immunizations.

On September 19, 2014, he received the following text message from WPMG: “Its flu season again. Your PCP at WPMG is thinking of you! Please call us at 212-247-8100 to schedule an appointment for a flu shot.” During discovery, Mt. Sinai stated that it instructed the third party to send flu shot reminder texts to all active patients of WPMG who had visited the office during the prior three years. Latner’s 2011 visit fell within this timeline.

Instead of getting a flu shot, Latner filed suit alleging that the text violated the TCPA. A federal district court granted Mt. Sinai’s motion for judgment on the pleadings and dismissed the case. The plaintiff appealed, and the federal appellate panel affirmed.

Tasked with issuing regulations under the TCPA, the Federal Communications Commission (FCC) devised a Telemarketing Rule in 2012 requiring “prior written consent for autodialed or prerecorded telemarketing calls.”

However, the FCC exempts from written consent calls to wireless cell numbers if the call “delivers a ‘health care’ message made by, or on behalf of, a ‘covered entity’ or its ‘business associate,’ as those are defined in the Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule.” The agency also limited the definition of marketing to exclude all communications made “[f]or treatment of an individual by a health care provider … or to direct or recommend alternative treatments” to the individual.

The Second Circuit agreed with the district court that the Healthcare Exception applied to the text received by Latner. But the lower court forgot the next step, the federal appellate panel said: determining whether Latner provided his prior express consent to receive the text message.

“Nonetheless, we affirm the District Court’s judgment on the grounds that, considering ‘the facts of the situation,’ the text message did indeed fall within ‘the scope of [Latner’s] prior express consent,’” the court wrote.

Latner provided his cellphone number when he first visited WPMG in 2003 and signed a consent form acknowledging receipt of various privacy notices. These documents provided his agreement that Mt. Sinai could share his information for “treatment” purposes and use it “to recommend possible treatment alternatives or health-related benefits and services.”

“Considering the circumstances, we hold that Latner provided his prior express consent to receiving a single text message about a ‘health-related benefit[]’ that might have been of interest to him,” the panel said.

The court noted that the district court may also have based its holding on the TCPA’s Healthcare Treatment Exemption, which exempts companies from receiving consent from consumers before making health-related communications to them. But the FCC introduced this exemption in 2015, after Latner received his flu shot reminder text message, the Second Circuit said, and included no language suggesting an intent to make the exemption retroactive.

To read the opinion in Latner v. Mount Sinai Health System, Inc., click here.

Why it matters: As the first federal appellate panel to consider application of the FCC’s 2015 Healthcare Exception to the TCPA, the Second Circuit had no difficulty finding that a text message from a doctor’s office providing a reminder to get a flu shot fell within the exemption. Further, the court found that by providing his cellphone number in 2003, the plaintiff consented to receive texts for “treatment” purposes and “health-related benefits” 11 years later. The court’s decision also emphasizes the importance of scope when determining whether one provided prior express written consent, demonstrating again that companies should be mindful of this even when sending non-marketing, and even healthcare, messages.



pursuant to New York DR 2-101(f)

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