Derossett v. Patrowicz: A Doctor's Prerecorded Calls About Moving to a Membership Practice Were Health Care Messages

The Calls

The physician had nearly 4,000 patients and decided to cut his practice to 300 members paying an annual fee. A consultant helped draft the announcement and two prerecorded calls from templates, and placed the calls using patient contact information he supplied. The first call invited patients to a webinar about the changes. The second said the practice was about two thirds full and urged undecided patients to call.

The plaintiff had been a patient for about a decade, provided her number, and signed a privacy form allowing the practice to contact her about "health-related . . . services that may be of interest" and to use her information for "necessary administrative . . . and business functions." Years earlier she had asked to transfer her records elsewhere.

Telemarketing That Delivers a Health Care Message

Prerecorded telemarketing calls to cell phones generally require prior express written consent. The defendants effectively conceded they lacked it. But under 47 C.F.R. § 64.1200(a)(2), a telemarketing call by a covered entity or business associate under the Health Insurance Portability and Accountability Act (HIPAA) that "delivers a 'health care' message" needs only prior express consent.

The court held:

• The physician was a covered entity, and the consultant was his business associate.
• The calls concerned impending changes to patients' primary care. "It is hard to imagine a message more related to 'health care' than one that notifies a patient that she may soon lose her doctor." If a flu shot reminder qualifies, as in Latner v. Mount Sinai, so does this.
• A sales purpose is immaterial. The exception expressly includes calls that "constitute[] telemarketing." The court doubted the Second Circuit's suggestion in Zani v. Rite Aid that marketing-laden calls might fall outside it, and held these calls, which mentioned no prices or deals, were nowhere near that line.

The plaintiff's reliance on the separate exigent healthcare treatment exception, which bars telemarketing content, was misplaced because the defendants never invoked it. The court also rejected the defense argument that HIPAA compliance eliminated any consent requirement. That blanket exemption covers residential lines, and health care messages to cell phones still need prior express consent.

Consent, Third Parties, and Revocation

• Consent. By providing her number and signing the privacy form, the plaintiff consented to contact about health-related services and practice business functions.
• The consultant. Under Mais v. Gulf Coast Collection Bureau, consent can flow through an intermediary. Because she authorized disclosure for these purposes, the consultant needed no direct consent.
• No revocation. Asking to transfer records did not "clearly express" a desire to stop receiving calls. Under Van Patten, she had to tell the practice to stop contacting her, and she never did.

The court did not reach the emergency purposes defense, and class certification was denied as moot.

Takeaways

• Health care messages can sell. Promotion does not defeat the exception if the message is genuinely about the recipient's care.
• Privacy forms matter. Contact authorizations in intake paperwork can supply consent and apply to vendors.

Read the court's memorandum opinion.