Second Circuit Affirms TCPA Dismissal, Finding Broadly-Worded Consent Provided on Intake Form Sufficient to Show Prior Express Consent

Class Actions  •  Litigation  •  TCPA

On January 3, 2018, the Second Circuit decided Latner v. Mount Sinai Health System, Inc., No. 17-99, affirming the U.S. District Court for the Southern District of New York’s decision to dismiss the Telephone Consumer Protection Act (TCPA) suit, and finding that the plaintiff consented to receive an automated text message from Mt. Sinai’s business affiliate, reminding him that he was due for a flu shot.  Specifically, the plaintiff signed a new patient intake form years before receiving the text message in question, in which he provided Mt. Sinai consent to use his “health information” “for payment, treatment and hospital operations purposes.”  The Second Circuit interpreted that language to be sufficient prior express consent under the TCPA, authorizing Mt. Sinai’s business affiliate to send him the automated text message.

The plaintiff signed a form containing the above-referenced language when he was filling out new patient intake forms in 2003.  In June 2011, Mt. Sinai hired a third party provider, PromptALERT, to send automated text messages to its patients.  PromptALERT sent one of the text messages to the plaintiff on September 19, 2014, stating that “[i]ts [sic] flu season again.  Your PCP at WPMG is thinking of you!  Please call . . . to schedule an appointment for a flu shot.”  The district court granted Mt. Sinai’s motion to dismiss, concluding that the text message fell within the health care exception to the TCPA.  The exception, which is codified in 47 C.F.R. § 64.1200(a)(2), provides that “a ‘health care’ message made by, or on behalf of, a ‘covered entity’ or its ‘business associate’” is exempt from the TCPA’s provision prohibiting entities from sending automated text messages without consumers’ prior written consent.  In its opinion, the district court concluded that the flu shot reminder was a “health care message,” that Mt. Sinai is a “covered entity” and that PromptALERT was Mt. Sinai’s business associate—placing the automated text message squarely within the scope of the exception.

The Second Court agreed with the district court’s reasoning and conclusion, but held that the decision was incomplete because it did not go far enough. The Second Circuit found that it was also necessary to determine whether the call was made with the “prior express consent” of the plaintiff—which is also an element of the TCPA exemption.  The Second Circuit affirmed nevertheless, finding that the “facts of the situation” showed that the plaintiff provided prior express consent within the scope of the initial patient intake forms, which stated that Mt. Sinai could share his information for “treatment” purposes and “to recommend possible treatment alternatives or health-related benefits and services.”

The Latner decision is notable because the Second Circuit found the authorization in the new patient intake form to be sufficient consent, despite its broad scope.  Even though the authorization did not explicitly authorize Mt. Sinai (or its business partner) to contact the patient by text message, or specify what “treatment” recommendations were covered by the authorization, the authorization was still prior express consent sufficient to allow Mt. Sinai and PromptALERT to escape TCPA liability.  It remains to be seen whether this decision will lead other courts to interpret authorizations in other context.  LenderLaw Watch will continue to monitor the latest in TCPA developments and bring you updates as they occur.

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