Second Circuit confirms flu-shot reminder text within scope of TCPA exemption

As medical experts are bracing for one of the worst flu seasons in history, providers can rest assured that they can continue to remind patients via texts or phone calls to get their annual flu-shot as long as the patient previously gave their phone number to the provider.

Affirming the decision of a district court, the Second Circuit ruled on January 3, 2018 that a medical provider’s flu-shot reminder text did not violate the Telephone Consumer Protection Act (TCPA) as it delivered a health care message by a covered entity, and the message fell within the scope of the patient’s prior express consent about a health-related benefit that might have been of interest to him.

The case centered on plaintiff Daniel Latner’s 2003 visit to West Park Medical Group, P.C. (WPMG), a facility owned by Mount Sinai Health Systems, Inc. for a routine health examination. While at WPMG, he provided his contact information and consent to Mt. Sinai and WPMG to use his health information “for payment, treatment and hospital operations purposes.”

In 2011, Mt. Sinai hired a third-party company to send texts on behalf of Mt. Sinai, including transmitting flu-shot reminder texts for WPMG.  In September 2014, Latner received a single text from WPMG that stated:

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. (212-247-8100, WPMG).

Latner did not receive any further texts, but filed a class action lawsuit against Mt. Sinai and WPMG alleging that they violated the TCPA.  

The TCPA prohibits making any non-emergency call to a cell phone or other number for which the called party is charged using an automatic telephone dialing system (ATDS) or prerecorded voice without the prior express consent of the called party.  

Generally, calls that include an advertisement or constitute telemarketing can only be made with prior express written consent.  But the TCPA exempts calls or texts that deliver a health care message made by or on behalf of a covered entity or business associate as those terms are defined in the Health Insurance Portability and Accountability Act (HIPAA).  These calls are permitted if placed with the recipient’s prior express consent. 

Based on the facts of the case, the Second Circuit held that the flu-shot reminder text did not violate the TCPA as it delivered a health care message by a covered entity, and the message fell within the scope of the patient’s prior express consent.

The case is Latner v. Mount Sinai Health Sys., No. 17-99-cv, 2018 U.S. App. LEXIS 114 (2d Cir. Jan. 3, 2018).