January 4, 2018 | less than a minute read

Flu Shot Reminder Text Message Didn't Violate TCPA

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Terri Seligman

Partner

Get in touch

Terri Seligman

Partner

In the continuing battle between would-be class action plaintiffs and entities relying on text messaging to communicate with consumers (and, here, patients), the Second Circuit has stopped an action accusing the Mount Sinai Health System and an affiliate of violating the TCPA by sending flu shot reminder text messages. The court found that not only did the text messages qualify for the healthcare exception to the TCPA's prior written consent requirement (as found by the lower court), but that the named plaintiff did in fact provide his express consent by signing new patient forms three years earlier that granted the hospital permission to his health information for "payment, treated and hospital operations purpose[s]".

In an eight-page published decision authored by Circuit Judge Jose A. Cabranes, the three-judge appellate panel affirmed the toss of TCPA claims that plaintiff Daniel Latner brought against Mount Sinai and its affiliate West Park Medical Group PC after he received a text message in 2014 encouraging him to make an appointment for a flu shot, although the panel found the lower court's analysis to be "incomplete" and relied on different, expanded reasoning for its dismissal.

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