A doctor’s calls to his patients informing them of his plans to reduce his caseload and encouraging them to join his new, limited practice fell under the “health care messages” exception to the Telephone Consumer Protection Act (TCPA), a Maryland federal court found, granting the doctor’s motion for summary judgment.
When Maryland doctor Jonathan Patrowicz decided to restructure his practice and reduce the number of patients from roughly 4,000 to 300, he emailed, called and sent letters to his existing patients.
The two phone calls featured a prerecorded message reminding patients about the change in his practice and encouraging them to sign up because membership in the new program was filling up quickly.
Kimberly Derosset filed a TCPA suit over the phone calls. As a patient, she had visited the practice more than 30 times starting in 2005. While receiving care from Dr. Patrowicz, she signed a privacy form that authorized the practice to “use and disclose” her phone number in several ways.
She agreed that she could be “contact[ed]” about “health-related … services that may be of interest to [her],” and authorized Dr. Patrowicz to “use and disclose” her contact information “in order to perform the necessary administrative … and business functions of [his] practice.”
In her complaint, she contended that because Dr. Patrowicz sought to sell memberships to his new practice, his calls involved telemarketing and were unlawful without prior express consent pursuant to the TCPA. Derosset told the court she never provided such consent because she never expressly allowed him to send prerecorded messages. In response, Dr. Patrowicz relied on the “health care message” exception to the TCPA, and U.S. District Court Judge Deborah K. Chasanow agreed.
Under the health care message exception found at § 64.1200(a)(2), a covered entity or its business associate may lawfully place a telemarketing call that delivers a message about health care, as long as the called party provides prior express consent.
“The exception applies here because the calls delivered a ‘health care message,’” the court said. “[A] ‘health care message’ is exactly what it sounds like: A message related to an individual’s care or services. … The calls here delivered ‘health care messages’ because they relate to patients’ care and services – indeed, each call discussed impending changes to patients’ primary care.”
Dr. Patrowicz called his patients to warn them that they would soon lose their doctor if they did not sign up for his new practice, Judge Chasanow explained, and it “is hard to imagine a message more related to ‘health care’ than one that notifies a patient that she may soon lose her doctor.”
Other courts have applied the health care message exception to communications “that had a far less intimate link to a patient’s care,” the court noted, citing a Second U.S. Circuit Court of Appeals decision in Latner v. Mount Sinai Health System, where a hospital texted patients to advertise its flu shot services.
“In sending the prerecorded calls, [Dr. Patrowicz] no doubt also sought to make sales; [he] wanted patients to buy memberships for his new practice,” the court wrote. “But nothing in the TCPA suggests that a health care message cannot also encourage sales. … Thus, when a call ‘delivers a health care message[,]’ it is ‘immaterial’ whether it was ‘sent for a marketing purpose’ – either way, it requires mere prior express consent.”
Further, Judge Chasanow determined that Derosset provided prior express consent for the calls she received. When she gave her phone number to the practice, she signed a privacy form allowing it to “use and disclose” her contact information for various reasons, several of which cover the calls at issue. She also did not revoke her consent by asking Dr. Patrowicz’s practice to transfer her medical records to another doctor, the court said. To revoke consent, an individual must “plainly” tell the defendant to cease further contact.
On the above facts and analysis, the court granted Dr. Patrowicz’s motion for summary judgment.
To read the opinion in Derosset v. Patrowicz, click here.
Why it matters: The court’s conclusion in Derosset serves as an important reminder that “health care” related messages often are exempted under the TCPA. Moreover, the case critically notes that even if there is some marketing intention behind the health care-related message, the fact that the message predominately relates to an individual’s health care allows the exemption to apply.