Earlier this month, the Second Circuit ruled that Mount Sinai Health System did not violate the Telephone Consumer Protection Act (TCPA) when it sent automated flu shot text message reminders to patients. The three-judge panel in Latner v. Mount Sinai Health Systems, Inc. affirmed the dismissal of the putative class action, finding that the lead plaintiff, Daniel Latner, had consented to receiving the messages.  As companies in the healthcare industry and beyond increasingly rely on automated communication systems, this case highlights the consumer privacy implications of using mass text messages to contact patients and consumers.

In 2003, Latner visited a Mount Sinai facility, West Park Medical Group, P.C., for blood and cholesterol tests. During the visit, he provided his cell phone number and filled out new patient forms, including one authorizing Mount Sinai to use his information for “treatment” purposes, as well as “to recommend possible treatment alternatives or health-related benefits and services.” Latner returned for a routine medical examination in 2011.

In 2014, Mount Sinai sent a mass text message to all patients who had visited the West Park Medical Group Facility within the previous three years, including the plaintiff, which 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.

After receiving this text message, the plaintiff filed a class action lawsuit in federal court claiming that Mount Sinai had violated the Telephone Consumer Protection Act. The TCPA prohibits sending texts or placing calls to cellphones using an automatic dialing system, except under certain exceptions or with the consent of the party called. The Act creates a private right of action and authorizes statutory damages of up to $500 per violation, with treble damages available for willful or knowing violations.

The Federal Communications Commission (FCC), which is empowered with implementing the TCPA, issued a rule in 2012 requiring telemarketers to obtain consumers’ written consent before placing robocalls to them. It carves out an exception, however, for calls and texts to wireless cell numbers that deliver a “health care message.”

The Southern District of New York dismissed the case in December 2016, finding that the flu shot reminders fell within this healthcare exception and thus Mount Sinai did not need to obtain the patients’ consent before sending them.

On appeal, the Second Circuit affirmed the lower court’s dismissal of the claims, but issued a decision interpreting the healthcare exception more narrowly. The three-judge Second Circuit panel agreed that the flu shot reminders were “health care” messages. It held, however, that the healthcare exception eliminates only the FCC’s requirement that the sender obtain written consent; it does not relieve senders of their general obligation under the TCPA to obtain express consent before sending automated messages.

The Second Circuit noted that the district court’s opinion was incomplete, as it had disposed of the TCPA claims without assessing whether prior express consent had been granted for the text messages at issue.

The panel went on to conclude that it had, finding that the flu shot reminder fell within the scope of permission the plaintiff had given to Mount Sinai to use his information to recommend “health related benefits.”

This ruling adds to the evolving case law on healthcare provider liability for using “robotexts” and other automated communication technology to contact patients.

The Second Circuit is not over its bout of flu shot reminder cases yet—oral argument in a similar TCPA case against Rite Aid is scheduled for next month.