Some people really do not like being told to get a flu shot and, in Latner v. Mount Sinai Health System, Inc., 2018 WL 265085 (2d Cir. amended decision Jan. 9, 2018), a man sued his hospital over it. Well, not exactly. Plaintiff Daniel Latner claimed that a text message sent by a third party telemarketer for Mt. Sinai Health System reminding him to get a flu shot violated his rights under the Telephone Consumer Protection Act (TCPA). Among other things, the TCPA allows individuals to file lawsuits and collect statutory damages for receiving autodialed text messages without the recipient’s prior express consent. Latner addressed the scope of consent required for a healthcare message made by a covered entity or its business associate, as those terms are defined by the Health Insurance Portability and Accountability Act of 1996 (HIPAA).

The Second Circuit ruled in favor of Mt. Sinai and found that, by signing the hospital’s release forms 11 years earlier and providing his contact information, Plaintiff gave sufficient consent under the TCPA. Most of the opinion focuses on the level of consent necessary in this context. An FCC Order from 2012 requires prior express written consent for an autodialed call or text, but the court found that, as a healthcare message, the text was exempt from this requirement. The text qualified as a healthcare message because Mt. Sinai is a covered entity and the flu is a matter of public health. The court went on, however, to find that some form of consent is still necessary under the TCPA. Healthcare messages are exempt from the written requirement set forth in the FCC’s 2012 Order, but, to avoid TCPA liability, prior express consent is still required. The Second Circuit found that the district court’s ruling, which ended its consent analysis after determining the text was a healthcare message, had not gone far enough. In this case, the court found that, by voluntarily providing his cell phone number to the hospital in 2003, Latner had given the hospital, and its calling agent, sufficient consent to contact him about getting a flu shot in 2014.

So there’s good news and bad news. A covered entity under HIPPA cannot send health-related calls or texts without prior consent, but odds are, if the patient gave his or her number to the hospital or health clinic (hint, he or she likely will have), then the entity already has it.

We continue to monitor developments in TCPA litigation. Please see this list of recent TCPA actions.