Mount Sinai Health System Defeats TCPA Action for Flu Shot Reminder

By: Michelle Cohen

No one likes being on the receiving end of an immunization shot, but many of us submit to a flu shot each fall or winter.  David Latner, a patient of the Mount Sinai Health System’s West Park Medical facility, apparently found a single text from West Park reminding him about flu shots to be alarming in its own right (and an opportunity to sue). Latner filed a lawsuit under the federal Telephone Consumer Protection Act of 1991 (“TCPA”), on behalf of himself and a putative class of others who received similar West Park texts. (Latner v. Mount Sinai Health System, Inc. (2d Cir., Jan. 3, 2018)). The TCPA, originally intended to provide “Joe Q citizen” with the ability to seek relief in small claims courts for violations of its prohibitions on certain calls (such as prerecorded calls and faxed advertising), has become a favorite of the plaintiffs’ class action bar due to its generous statutory damages. This month, however, the U.S. Court of Appeals for the Second Circuit affirmed a lower court’s dismissal of Latner’s putative class action.  The Second Circuit held that Latner had consented to receive West Park’s 2014 flu reminder text message when he provided his mobile phone number to West Park back in 2003 at the time of his initial visit when he had agreed to certain terms.

Among other restrictions, the TCPA bars calls to cell phones through automated telephone dialing systems (“ATDS”) or with prerecorded messages, absent certain exceptions such as an emergency or with prior express consent.  The Federal Communications Commission (“FCC”), the agency charged with implementing the TCPA, clarified years back that the term “calls” includes texts.  The FCC developed two different standards for obtaining consent to receive autodialed texts or calls. If a message constitutes “telemarketing”-type content, the caller must have “prior express written consent,” which requires FCC-specified language and an affirmative “opt-in” by the called party.  If the message is informational in nature (such as a reminder of an upcoming appointment), the call or text requires “prior express consent,” a more flexible standard, that can be satisfied by a person providing her mobile phone number and agreeing to be contacted at that number.  Over the years, the FCC has created exceptions from the TCPA’s requirements for certain types of calls and texts. The agency exempts from the prior written consent requirements (i.e., those offering goods, products, and services) calls to wireless numbers that deliver a “health care message made by, or on behalf of, a ‘covered entity’ or its ‘business associate’” as those terms are defined in the federal HIPPA law.

The district court dismissed Latner’s complaint, holding that the health care call exemption applied to West Park’s text.  The Second Circuit agreed with the lower court’s ruling, holding that West Park’s flu shot text message delivered a health care message and was made by a “covered entity” or its “business associate.”  However, the appeals court concluded that the lower court’s analysis was incomplete, as the health care exemption only applied to the written consent requirement, and did not address the express consent requirement.  In other words, West Park still needed prior express consent for the autodialed text.

Reviewing the facts, the Second Circuit concluded that Latner had in fact provided prior express consent, dating back to 2003, when Latner first visited a West Park facility.  At that time, Latner provided his cell phone number, and signed a consent form where he agreed West Park could use his information “to recommend possible treatment alternatives or health-related benefits and services.” The court ruled that Latner had therefore consented to receiving the flu shot text message from West Park, since the text concerned a “health-related benefit” (the flu shot) that might be of interest to him.

The Second Circuit reached correct conclusions in dismissing Latner’s complaint.  He provided his mobile phone and agreed to the use of his information in the health care context.  The texts also fell within the health care call exemption. The TCPA is not meant to transform every automated call or text into a lawsuit, and courts are pushing back on plaintiffs’ claims, particularly where consent exists or where plaintiffs have “invited” calls through opportunistic means (such as acquiring cell phone numbers for the purpose of receiving calls).

There are at least two issues worth exploring further, including one which could have changed the outcome of this case. The first is the issue of a reassigned cell phone number.  Hundreds of thousands of mobile phone numbers are reassigned every day.  In 2014, when Latner received the flu shot text, he maintained the same number associated with his 2003 consent form. If Latner’s number had been reassigned to another party and West Park texted the reassigned number, it presumably would have lacked consent.  Second, the Second Circuit referenced a “single text message” being covered by Latner’s consent.  I do not believe the Second Circuit meant to circumscribe Latner’s consent to only allowing a single text, but rather was referencing the fact that he received one text.  Absent Latner’s or a similarly-situated person’s revocation of consent, West Park could continue to send health care-related autodialed text messages based upon the earlier provided consent.  Issues concerning the FCC’s rules on reassigned mobile numbers and revocations of consent are currently under review by the Court of Appeals for the District of Columbia Circuit.

Relying on 2003-obtained consent worked here but could be problematic, as not all companies maintain records as well as West Park did, in addition to the reassigned number issue.  An important, practical lesson here is to review your organization’s consent protocols for mobile calling and texting, and seek to obtain updated contact information with each customer visit or contact. Many consumers welcome service provider notifications– whether it be a text reminding a busy mom that a prescription is ready for pickup, an automated call confirming an upcoming doctor’s appointment, or even a message that the cable provider will be at your home between 2-4 p.m. on Friday.  By obtaining, maintaining, and updating consent contacts, organizations can continue these communications without facing a TCPA backlash.