2nd Circuit Finds Flu Shot Texts Are Health Care Messages

and don’t violate TCPA when you have prior express consent

Latner v. Mount Sinai
Affirmed – Mount Sinai allegedly sent unsolicited (ATDS) text messages promoting flu shots. The texts 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.((212)247-8100, WPMG)

Plaintiff claimed he received the texts despite the fact he declined flu shots during his last treatment visit (and therefore had not consented to the texts).

The district court found that the texts were not telemarketing since they were intended to “direct or recommend alternative treatment,” thus required only prior express consent. Plaintiff consented to the texts when he voluntarily provided his number on intake forms prior to treatment, including a Notice of Privacy Practices (NPP) stating that information provided may be used to treat plaintiff’s condition, collect payment for that treatment, or run business operations.

The appellate court ruled that although the district court’s analysis was incomplete, it still reached the correct decision. The message was indeed a “health care message,” that was initiated by a “covered entity” and its “business associate,” thus required only prior express consent. The appellate court addressed the shortcoming in the district court’s ruling by clarifying that the messages fell within the scope of consent provided through the intake forms, as the message was for treatment purposes. Since plaintiff agreed to be contacted about health-related benefits, he consented to the texts.
[2nd Circ.; 17-99 (Orig: S.D. N. Y.; 1:16-cv-00683)]
jbho: the courts continue to clarify the definition of a “health care message” – at least in the 2nd. The appellate court did not address whether the reminder texts were telemarketing, but that proved irrelevant since the texts qualified for the health care exemption. Note that in Zani v. Rite Aid (S.D. N.Y.; 1:14-cv-097010), the district court did find flu shot reminders to be telemarketing, but prior express consent was sufficient for the covered entity making the “health care message” calls.

However, there are limits. Remember that in Sullivan v. All Web Leads (N.D. Ill; 1:17-cv-01307) the court ruled that insurance sales calls were not “health care messages”.


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