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Second Circuit Rules That a Flu Shot Reminder Text Massage Does Not Violate the TCPA

We have previously discussed the FCC’s 2012 TCPA exception for automated calls that deliver a “health care message” (the “2012 Health Care Exception”).  Now, for the first time, a federal appellate court has construed the scope of the 2012 Health Care Exception. In Latner v. Mount Sinai Health Sys., No. 17-99-cv (2d Cir. Jan. 3, 2018), the Second Circuit ruled that a healthcare provider did not run afoul of the TCPA by sending a patient a flu shot reminder text message after the patient had given consent to use his information—including his cell phone number—for “treatment” purposes. The decision is a favorable one for healthcare providers who utilize text messaging (or automated calls) to provide treatment reminders to patients. Indeed, the Second Circuit interpreted the 2012 Health Care Exception more broadly than the trial court had done in what was previously the leading decision applying the exception to reject TCPA claims attacking flu shot reminders, Zani v. Rite Aid Headquarters Corp., 246 F. Supp. 3d 835 (S.D.N.Y. 2017). Zani is due to be argued before the Second Circuit on February 7th and the Second Circuit’s decision in Latner obviously bodes well for Rite Aid’s prospects of winning an affirmance on appeal.

The Facts

In Latner, plaintiff brought a putative class action alleging that Mount Sinai Health System, Inc. (“Mt. Sinai”) and one of its facilities, West Park Medical Group, P.C. (“WPMG”), violated the TCPA by sending flu shot reminder text messages. In 2003, plaintiff went to WPMG for a routine exam and filled out certain new patient forms. The documents included a consent to use his health information for certain purposes, including “treatment.” Latner, 2018 WL 265085 at *1. Fast forward to 2011, Mt. Sinai then hired a third party to send certain text messages, including flu shot reminders, on behalf of WPMG. Id. Later in 2011, plaintiff returned to WPMG for an exam but specifically declined any immunizations. Id. Three years later, in 2014, plaintiff received a single flu shot reminder text message from WPMG, which read:

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.

Id. In a case of no good deed going unpunished, plaintiff brought TCPA claims against defendants based on his receipt of this single text. The District Court granted defendants’ motion for judgment on the pleadings. Specifically, the District Court found that the 2012 Healthcare Exception from written consent applied because the text message delivered a “health care” message on behalf of a “covered entity,” as defined by regulation. Id. at *2.

The Second Circuit Decision

Plaintiff appealed. The Second Circuit noted that the District Court had correctly found that the 2012 Healthcare Exception applied and that written consent was not required. Id. But, the District Court’s analysis was “incomplete” because the District Court failed to determine whether plaintiff provided any prior express consent, which was still required under the TCPA’s general consent requirement. Id. Nonetheless, the Second Circuit affirmed. The Court found that, by giving his cell phone number to WPMG and granting consent to use his information for “treatment” purposes, plaintiff had indeed provided prior express consent to receive “a single text message about a health-related benefit that might have been of interest to him.” Id.

The Takeaway

Latner is notable not only as the first appellate decision construing the 2012 Health Care Exception but because the Second Circuit interpreted the exception expansively. Previous flu shot cases (such as Zani) involved calling programs that contacted only patients who had actually received flu shots from the defendant the previous year. In Zani, the court relied in part on the limited nature of that calling program in finding that the calls delivered an individualized health care message and thus came within the 2012 Health Care Exception. The Zani court explained that the “operative question” is “whether a nexus exists between the subject matter of the call and the established health care needs of its recipient.” Zani, 246 F. Supp. 3d at 851. The Zani court concluded that such a nexus was present in part because the calls were made only to patients of Rite Aid who had received prescription flu shots from Rite Aid the previous year, and thus the calls “alerted those patients to the availability of a medication treating the precise medical issue for which they had previously sought care.” Id. at 851-52. But in Latner, the plaintiff had declined to receive a flu shot before receiving the flu shot reminder text. Rather than limiting the texts to recent flu shot recipients, defendants sent flu shot reminder texts to all active patients who had visited the office in the previous three years. Latner, 2018 WL 265085 at *1. Notably, the Second Circuit did not discuss the Zani decision in concluding that the widely broadcast texts at issue in Latner qualified for the 2012 Health Care Exception.

In creating the 2012 Health Care Exception, the FCC recognized that automated health care messages educate patients, promote adherence to treatment plans, lead to better health care outcomes, and serve the public interest. Latner establishes Second Circuit precedent and may well lead other courts to interpret the 2012 Health Care Exception broadly to encourage valuable calls and text messages providing patients with important health care reminders.

© 2020 Faegre Drinker Biddle & Reath LLP. All Rights Reserved.National Law Review, Volume VIII, Number 8


About this Author

Bradley Andreozzi, Litigation Attorney, Complex, Drinker Biddle Law Firm, Chicago

Bradley J. Andreozzi represents clients in complex high-stakes civil litigation, including class action trials and appeals. Brad has represented clients in virtually every federal appellate court, including the Supreme Court, and in many trial courts throughout the country.

Brad defends clients in class actions under various federal and state consumer protection laws, including the Telephone Consumer Protection Act (TCPA), the Fair and Accurate Credit Transaction Act (FACTA) and many state false advertising statutes. His...

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William Wright, Drinker Biddle Law Firm, Floorham Park, Data Management and Litigation Attorney
Senior Attorney

William A. Wright assists clients with complex business disputes, consumer class actions, and emerging e-discovery and data management issues.

Bill’s litigation experience includes a broad range of representative matters, including consumer class actions, complex contract disputes, products liability and wrongful death defense. He defends large institutional clients in complex commercial litigation and routinely manages subject matter experts and consultants. Bill has appeared in numerous state and federal courts and before private arbitration panels.

Bill is a member of the firm’s cross-discipline Data Management and Discovery team and has significant experience counseling clients on cutting edge e-discovery issues. He routinely advises clients on appropriate litigation holds and document collection and retention policies. Bill has also managed numerous large scale electronic document reviews in connection with multimillion-dollar litigation. Bill also serves as a client liaison with technical experts regarding the appropriate format and scope of electronic productions.