Blank Rome Represents Mount Sinai Health System and West Park Medical Group in Obtaining Dismissal of Nationwide Class Action Pursuant to TCPADecember 21, 2016
A Blank Rome team obtained a complete dismissal of a putative nationwide class action brought pursuant to the Telephone Consumer Protection Act (“TCPA”) of 1991, for its clients Mount Sinai Health System, Inc. (“MSHS”) and West Park Medical Group, P.C. (“WPMG”).
The plaintiff, Daniel Latner—a patient of WPMG, a group practice affiliated with MSHS—claimed that he received an unsolicited telemarketing text message from WPMG in violation of the TCPA. According to the complaint, WPMG sent the plaintiff a single text message reminding him to get a flu shot in 2014, which, despite the plaintiff having provided his cell phone number to WPMG in 2003, and later returning to WPMG for a routine medical examination in 2011, was sent without his prior express permission. The defendants’ Motion for Judgment on the Pleadings contended that the single text message was not telemarketing, and was instead a permissible “healthcare” message under HIPAA that did not require prior express permission.
In a case of first impression, Judge Alvin K. Hellerstein of the United States District Court for the Southern District of New York agreed with the defendants. Judge Hellerstein held that that “the [flu shot reminder] message at issue here falls within HIPAA’s broad definition of ‘healthcare’ and therefore constitutes a ‘healthcare message’ under the FCC regulations,” which further “provide that immunization reminders are healthcare messages, and are therefore exempt from the written consent requirement.” Accordingly, the court granted judgment in the defendants’ favor, and dismissed the class action as moot.