Robo-calls connecting citizens directly to a hospital's CEO
telephone line do not violate the Telephone Consumer Protection Act
of 1991 (TCPA), the Sixth Circuit Court of Appeals held in Ashland Hospital Corporation v. Service
Employees International Union. This decision adds another
arrow in labor's quiver and may embolden labor unions in their
efforts to place pressure directly on hospital management during
The case arose out of a labor dispute between the Service
Employees International Union (SEIU) and King's Daughters
Medical Center regarding the hospital's proposal to shift some
of the costs of employee health care onto employees. To protest the
proposal, the SEIU launched a robo-call campaign in which people
living within the hospital's service area received calls from
an automated system that played a prerecorded message criticizing
the proposal and targeting the hospital's CEO. The message
Imagine you're at the hospital alone in pain waiting to be
seen; waiting and waiting. What could possibly be taking so long?
King's Daughters Medical Center CEO Fred Jackson laid off over
100 hospital employees, paid hospital executives bonuses worth over
one million dollars, and took over 1.1 million in salary and other
perks for himself. Now Jackson plans to cut health care for
hospital employees. That's just not right.
The message concluded by asking the recipient to press
"1" to be connected directly to the hospital's CEO to
"tell him to stop putting our families' health care at
As a result of the campaign, the CEO received 536 live telephone
calls from area residents in two days. The hospital filed suit to
stop the calls, alleging that the robo-calls violated the TCPA, a
federal law designed "to curb abusive telemarking practices
that threaten the privacy of consumers and businesses." In
addition to general prohibitions, the TCPA provides specific protections for hospitals, making it
unlawful "to make any call . . . using any automatic telephone
dialing system or an artificial or prerecorded voice . . . to any
emergency telephone line . . . [or] to the telephone line of any
guest room or patient room of a hospital, health care facility,
elderly home, or similar establishment . . . ." It also prohibits the use of such systems to
engage two or more phone lines simultaneously. In its lawsuit, the
hospital alleged that the robo-calls violated the TCPA by
interfering with the hospital's emergency lines,
simultaneously engaging multiple hospital lines, initiating calls
to residential lines using a prerecorded message without prior
express consent, and failing to follow the identification and
disclosure requirements of the TCPA. The high volume of calls, the
hospital claimed, overwhelmed its main trunk lines, which support
emergency services, calls to patient rooms, and all other
extensions in the hospital phone system.
The SEIU moved to dismiss the complaint and the federal district
court granted the motion. The Sixth Circuit affirmed, holding that
the calls to the hospital did not violate the TCPA because they
were not made using an automated system. Rather, the court found
there were two calls at issue in each contact: The first call, to
which the TCPA would apply, was between the SEIU's automated
system and an area resident; the second call was a live call from
an area resident to the hospital's CEO, and therefore not
covered by the TCPA. In reaching its holding, the court rejected
the hospital's argument that it was the SEIU's use of
automated calls to residents that caused the disruptive deluge of
live calls to be made, finding "it would give rise to
far-reaching and unforeseen liability" to consider
"making" an automated call the same as using an automated
system to "cause" a live call to be made. Finally, the
court held that, as a tax-exempt labor organization making the
automated calls for a non-commercial purpose, SEIU was exempt from
the consent requirements of the TCPA, and that the statute did not
provide a private right of action for violation of its
identification and disclosure requirements.
Ashland Hospital Corporation could raise the stakes in hospital
labor negotiations and disputes, potentially encouraging unions to
use robo-calls to engage the public and enable individuals to
immediately connect to hospital management directly via telephone
to voice support for the union's position. Hospitals and other
healthcare entities should be aware of this potential and be
prepared if it occurs.
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Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
The American Bar Association Health Law Section’s July 2014 eSource publication includes an article by Dianne Bourque, Kimberly Gold, and me that provides examples of how risk assessments under the Breach Notification Rule have changed since the HIPAA Omnibus Rule went into effect in September 2013.