THE SECOND CIRCUIT SAYS SENDING “ROBO” TEXTS DO NOT VIOLATE THE TCPA

1.In Latner v. Mount Sinai Health System, Inc., the Second Circuit Federal Court of Appeals decided that a health care system has the right to send “robo” texts reminding its patients about getting flu shots without violating the TCPA.

Last month, in Latner v.Mount Sinai Health System, Inc, the Second Circuit Federal Court of Appeals in New York City ruled that the Mount Sinai Health System did not violate the Telephone Consumer Protection Act (TCPA) by sending automated flu text messages to its patients within its own health care network. At present, health care systems around the country are becoming increasingly reliant on automated systems in order to relay important messages to their patients particularly where many of these systems currently have thousands of patients. And, when there is a current national health care crisis such as the omnipresent raging flu epidemic sweeping the United States, the need for medical systems to get out information to their network of patients becomes even more critical. The current flu epidemic is in terms of both hospitalizations and deaths one of the highest ever recorded according to the Center for Disease Control.

The basic facts in Latner are as follows: In 2003, Latner had visited a Mount Sinai facility for certain medical treatment. In the course of his treatment, the factual record before the federal trial court indicated that Latner, on his first visit, signed a new patient health form containing certain contact information and other forms as part of the standard intake process. In June of 2011, according to the record of the Court, Mt.Sinai hired a company called “PromptALERT”, Inc. to send mass messages to the patients of Mount Sinai including flu shot reminders. The message went like this: “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).” In this case, there had been no evidence presented by Latner at the trial level suggesting that he had withdrawn his previous consent. To a reasonable person, this would seem like an innocuous message, right? David Latner didn’t think so.

Believing at all times that his federal rights were violated, Latner filed a class action lawsuit against Mt.Sinai for violating his rights under the TCPA. His case was based on only one text message received from Mount Sinai. Briefly, the TCPA is a federal law that makes it unlawful to send texts or place calls to cell phones through automated dialing systems (often called “robo” calls or texts) except when express consent is provided in certain situations. The question of consent is always the first question to be considered when a plaintiff is seeking to get damages under this federal act. In 2012, however, the Federal Communications Commission( FCC) passed further regulations pertaining to the Act which exempted the requirement of prior express consent for those calls or texts placed 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 consistent with the requirements of all HIPPA privacy rules.”

In creating this health care exception, the FCC recognized that automated health messages work to educate patients, promote adherence to treatment plans, lead to better healthcare outcomes and serve the larger public interest, particularly in times, such as the present, when 44 out of 50 states are facing a flu epidemic. Moreover, within a healthcare system already strapped for resources, the FCC recognized that the use of “robo” calls are particularly effective as a vehicle for getting important healthcare information to patients given the fact that 95 percent of the public has a cellphone.

After losing in the Federal District Court, Latner subsequently appealed to the Second Circuit. The Second Circuit held that by Latner giving his cell phone number to Mt.Sinai, in the first instance, and where Latner “consented to Mt.Sinai to use his healthcare information for “payment, treatment, and hospital operations purposes” there was no violation of the TCPA. In anchoring its decision, the Second Circuit found that Latner consented to such texts under the consent section which specified for “treatment” purposes. And, by doing so, Latner did indeed provide express consent to receive a “single text message about a health-related benefit that might have been of interest to him.” The reason behind the rule by the Second Circuit was not to allow every “robo” call to be turned into a lawsuit as Latner unsuccessfully tried to do in this case. The Second Circuit, among other federal courts, seem to be pushing back on plaintiff’s claims particularly where consent exists or where plaintiffs, like Latner, have previously “invited” calls through some kind of writing.

The Latner Case is surely nothing to sneeze at. If anything, it serves to further enforce and perhaps expand the FCC’s 2012 health care exception to the TCPA and the social policies behind those regulations to otherwise encourage valuable calls and text messages providing patients with important health care reminders. To understand your rights as a provider of services and what you need to do in order to avoid liability under the TCPA, please give the Katz Law Group a call at 508-480-8202. By obtaining, maintaining and updating all consent contacts, your business or organization can continue these communications without facing an epidemic of a TCPA based litigation.

View Attorney Profile

David S. Katz

Licensed since 1983

Member at firm Katz Law Group, P.C.

RECENT POSTS

  • HOW TO CREATE A COMPANY CELL PHONE POLICY THAT ACTUALLY WORKS
    Posted on March 6, 2019
    Topic: Business Law

    A. BY HAVING ROBUST WORKPLACE CELL PHONE GUIDELINES YOUR COMPANY CAN BEGIN TO CONTROL THE PROBLEMS ASSOCIATED WITH EXCESS AND IMPROPER USE OF EMPLOYEE CELLPHONES.We have now reached a point where the cell phone is now intricately woven into everything we do. From our social life to business life, the cell phone has found its ... Read more

  • WHAT STEPS A LESSOR MUST TAKE WHEN TENANTS PREMATURELY TERMINATE A LEASE
    Posted on March 6, 2019
    Topic: Landlord and Tenant Law

    A. DEPENDING ON THE CIRCUMSTANCES, A LESSOR MUST TAKE SEVERAL STEPS UNDER ITS LEASE IN ORDER TO EFFECTIVELY RESERVE ITS RIGHTS WHEN A TENANT DECIDES TO LEAVE EARLY.Very recently, I was approached by a small lessor who has rental units in Watertown and Cambridge, Massachusetts. My client had received a notice of termination from two ... Read more

  • WHY YOUR COMPANY NEEDS AN EFFECTIVE CREDIT APPLICATION (PART 2)
    Posted on March 6, 2019
    Topic: Business Law

    A. IF YOU DECIDE TO EXTEND CREDIT, YOU WILL NEED A COMPREHENSIVE CREDIT APPLICATION AND A COMPREHENSIVE CREDIT APPLICATION PROCESS.Having represented many creditors over my many years of practice I can tell you that many business owners are reluctant to run credit applications for trade credit. The main reason in almost every case is based ... Read more

David S. Katz

Licensed since 1983

Member at firm Katz Law Group, P.C.

RECENT POSTS

  • HOW TO CREATE A COMPANY CELL PHONE POLICY THAT ACTUALLY WORKS
    Posted on March 6, 2019
    Topic: Business Law

    A. BY HAVING ROBUST WORKPLACE CELL PHONE GUIDELINES YOUR COMPANY CAN BEGIN TO CONTROL THE PROBLEMS ASSOCIATED WITH EXCESS AND IMPROPER USE OF EMPLOYEE CELLPHONES.We have now reached a point where the cell phone is now intricately woven into everything we do. From our social life to business life, the cell phone has found its ... Read more

  • WHAT STEPS A LESSOR MUST TAKE WHEN TENANTS PREMATURELY TERMINATE A LEASE
    Posted on March 6, 2019
    Topic: Landlord and Tenant Law

    A. DEPENDING ON THE CIRCUMSTANCES, A LESSOR MUST TAKE SEVERAL STEPS UNDER ITS LEASE IN ORDER TO EFFECTIVELY RESERVE ITS RIGHTS WHEN A TENANT DECIDES TO LEAVE EARLY.Very recently, I was approached by a small lessor who has rental units in Watertown and Cambridge, Massachusetts. My client had received a notice of termination from two ... Read more

  • WHY YOUR COMPANY NEEDS AN EFFECTIVE CREDIT APPLICATION (PART 2)
    Posted on March 6, 2019
    Topic: Business Law

    A. IF YOU DECIDE TO EXTEND CREDIT, YOU WILL NEED A COMPREHENSIVE CREDIT APPLICATION AND A COMPREHENSIVE CREDIT APPLICATION PROCESS.Having represented many creditors over my many years of practice I can tell you that many business owners are reluctant to run credit applications for trade credit. The main reason in almost every case is based ... Read more