NO EXEMPTION: Inquiry to Healthcare Provider Not Sufficient to Trigger Healthcare Provider TCPA Exemption, Court Holds

The TCPA’s healthcare-related exemptions can sometimes prove confusing.

Back in 2012 the FCC established that healthcare related messages by HIPAA covered entities may be sent without express written consent–even if they would have normally qualified as marketing messages.

In 2015, the FCC went further and established that certain kinds of free to the end user healthcare treatment messages may be sent with no consent at all.

Owing to the large number of restrictions on the 2015 ruling, most healthcare providers focus on the 2012 ruling to exempt their outreach to patients that need updates on their care and the availability of related products of services.

There are always questions, however, about the limits of the 2012 ruling. Some courts have observed, for instance, that a message that contains heavy marketing content might be subject to the TCPA, even if the remaining components of the 2012 ruling are met.

And another issue–does the healthcare provider have to actually be providing healthcare to the specific call recipient to take advantage of the exemption? Or does the mere fact that the caller is sending a HIPAA governed entity sending a healthcare related message enable the caller to claim the exemption?

Well in Murtoff v. My Eye Doctor, LLC, No. 1:21-CV-02607, 2022 U.S. Dist. LEXIS 54760 (N.D. Ill.  March 26, 2022) the court held directly that only messages being sent related to individualized care of an actual patient of the healthcare provider are subject to the exemption.

In Murtoff the Plaintiff had emailed the defendant about the cost of eye glasses. Relying on that inquiry, the Defendant had made outbound calls years later advising the Plaintiff that it was “time for your next eye exam.”

The Defendant argued that the calls were subject to the 2012 exemption for healthcare related calls. The Court determined there are three prongs to the exemption: i) the messages had to be healthcare related; ii) they had to be sent by a healthcare provider; and iii) the messages had to relate to the individual healthcare needs of the plaintiff.

The Court had little trouble finding the first prong was met–an eye exam is healthcare related.

However, the court found that the Defendant was not Plaintiff’s healthcare provider. A mere email inquiry did not create a patient-healthcare provider relationship. And the Court was quite clear that the relationship had to be a specific care relationship with the called party to trigger the exemption–an important rule to keep in mind.

Last, the court found that the messages were not specific enough to the care needs of the Plaintiff. As the Court put it:

[T]here was nothing individualized about the solicitation, “according to our records, it’s time for your next eye exam.” What records? How did MyEyeDr. know that it was time for Murtoff’s next eye exam? On what individualized basis did MyEyeDr. target Murtoff with that message?

So there you go. Healthcare providers who receive an inquiry from a potential patient may not make use of the 2012 exemption to make unsolicited calls/texts to the patient without express written consent.


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