A customer brought a class action against Rite Aid for negligent and willful violations of the Telephone Consumer Protection Act (TCPA), in connection with a prerecorded, automated call made to his cell phone alerting him to the availability of flu shots at Rite Aid pharmacies. The court held that flu shot reminders fall within the TCPA’s exceptions for health care messages. The Rite Aid customer argued that these calls were not health care messages but advertising made by a commercial party hired by Rite Aid (and not by a healthcare provider).  Nevertheless, the judge held that the exception applies because there was an established relationship between the parties (patient received flu shots at Rite Aid before) and therefore cell phone reminders of flu shots are exempt within the meaning of the TCPA.

This case contradicts a recent case against Walgreens, which was making robocalls to patients’ cellphones about prescription reminders. Walgreens settled this case for $11M and agreed to modify its policies of verifying consent and establish an opt-out process.

TCPA in a nutshell:

 Every business that uses phone, fax, or text messaging to share or gather information, or to market product or services must have the consent of the recipient or face significant fines and damages.

TCPA provides for statutory damages of $500 per call or text or actual damages, whichever is greater, and up to $1,500 per call for willful or knowing violations. Some exceptions apply: emergency notices, messages from service carriers and healthcare messages

As the above case illustrates, healthcare providers are still targets for class action law suits based on using pre-recorded messages to communicate with patients and it is still a sound practice to obtain express written or verbal consents for such calls.