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Flu Shot Reminder Text Doesn't Violate TCPA

By William Vogeler, Esq. on January 12, 2018 | Last updated on March 21, 2019

Daniel Latner got a text message that apparently offended him.

"It's flu season again," his health care provider texted. It invited him to come in for a flu shot.

Instead of getting a shot, he filed a lawsuit. In Latner v. Mount Sinai Health System, it seemed like no good deed goes unpunished.


Latner went to the Mt. Sinai Health System for a routine exam. He signed the usual forms, including a a permission slip for the facility to use his health information "for payment, treatment and hospital operations purposes."

As the flu season approached one year, Mt. Sinai employed a service to send text-message reminders to its patients. Latner got one.

He sued under the Telephone Consumer Protection Act, which makes it unlawful to send texts or place calls to cell phones through automated telephone dialing systems -- except under certain exemptions or with consent.

Citing Latner's consent and an exception for healthcare messages, Mt. Sinai filed a motion for judgment on the pleadings. A trial judge granted the motion, and the U.S. Second Circuit Court of Appeals affirmed.

Healthcare Exception

The appeals court said the Federal Communications Commission does not require written consent for calls to wireless cell numbers if the call "delivers a 'health care' message made by, or on behalf of, a 'covered entity' or its 'business associate' under the "Healthcare Exception."

Not only that, the panel acknowledged, Latner consented to receive the flu-shot message. He signed a consent form acknowledging receipt of various privacy notices.

"Considering the circumstances, we hold that Latner provided his prior express consent to receiving a single text message about a 'health-related benefit' that might have been of interest to him," the judges said.

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