The U.S. District Court, Northern District of Illinois recently held that a plaintiff's Telephone Consumer Protection Act ("TCPA") suit survived a motion to dismiss due to a lack of an established patient-provider relationship, when ruling on the health care exemption in the context of phone calls from an eye care provider. The consumer had made an inquiry with the eye care provider but did not receive care, and thus, the exemption may not apply.
In Murtoff v. MyEyeDr. LLC, the Plaintiff sent an email to Defendant asking about the cost of a new pair of eyeglasses. Plaintiff then began receiving automated phone calls from Defendant and its corporate entity regarding scheduling eye exams. Plaintiff asked that the call stop, but they continued.
Plaintiff filed a putative class action, alleging violations of the TCPA. Defendants filed a partial motion to dismiss regarding the part of the claim that relied on the lack of prior express written consent, asserting that the calls were health care messages.
The District Court analyzed that the Federal Communications Commission ("FCC") has issued two health care exemptions for the TCPA, one of which was potentially applicable to this case. Similar to the Federal Trade Commission's ("FTC") health care exception to its Telemarketing Sales Rule, the 2012 exemption covers any call that "Delivers a 'health care' message made by, or on behalf of, a 'covered entity' or its 'business associate." To determine whether the exemption applies, the District Court then analyzed the factors set forth in Zani v. Rite Aid, which includes whether the call: (1) "concerns a product or service that is inarguably health-related"; (2) "was made by or on behalf of a health care provider to a patient with whom she has an established health care treatment relationship"; and (3) "concerns the individual health care needs of the patient recipient."
Significantly, the District Court noted that: (1) for the second factor, Plaintiff only made an inquiry regarding the cost of eyeglasses and thus never consummated a health care treatment relationship and (2) for the third factor, the calls regarding scheduling an eye exam were generic and not individualized as to Plaintiff. Thus, the District Court ruled that – for purposes of a motion to dismiss – Plaintiff stated a claim that the calls were made without express prior written consent.
Lessons: First, merely being a health care business is not, alone, sufficient to invoke the TCPA health care exemption. Second, the exemption may not apply to a generalized message which is not specific to this patient or to this category of patients.
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