We pause for a question: Do these messages put doctors at risk of litigation? The answer: It depends. But the cost of texting patients without their express written consent can crush practices outright. We’re not exaggerating. That’s not to say it shouldn’t be done, or that it cannot be done; it just needs to be done right.

Before we explain why sending a text message can be so destructive, let’s establish a baseline understanding of the TCPA. What is the TCPA?

The acronym TCPA stands for the Telephone Consumer Protection Act. It’s a cash cow for plaintiff’s attorneys. And it’s the second most frequent federal lawsuit after employment law claims.

TCPA litigation is mostly triggered by SMS text message marketing. A business sends offers to its prospects by text message. Text messages are generally opened and read. It is effective. No doubt you’ve received such unsolicited messages on your phone.

Now replace “prospects” with “patients.” Can you count the landmines yet?

The statutory damages for violating TCPA are $500 per text or actual damages, whichever is greater. The statutory damages are up to $1,500 per text for willful or knowing violations. 

It doesn’t take much for this number to get large quickly. Text all of your patients without your permission, and, well, you can do the math. And, there’s typically no insurance to cover TCPA claims.

That’s the crash course. How is this affecting doctors in the present? Let’s turn our attention to the case. 

Dr. Jonathan Patrowicz is a family physician practicing in Maryland. He decided to reduce his caseload and began planning the reconstruction of his practice. He intended to reduce his caseload from nearly 4,000 patients to around 300. His practice contacted his existing patients via email, phone calls, ink-and-paper mail, and text messages. These notices included prerecorded calls asking patients to join what was soon to become a “members-only” style practice 

“Chairs” were filling quickly. If patients wanted a seat, they needed to move fast. 

What happened next? A patient sued him. 

This patient claimed that while she was under the doctor’s care, she signed certain privacy forms. These forms, among other things, allowed the doctor to contact her regarding issues specific to her healthcare. But she claimed she never authorized her doctor to send her marketing messages.  

“She agreed that she could be “contact[ed]” about “health-related … services that may be of interest to [her],” and authorized Dr. Patrowicz to “use and disclose” her contact information “in order to perform the necessary administrative … and business functions of [his] practice.”

The patient complained that the doctor’s message qualified as telemarketing and was unlawful. 

So, how did this play out? In the end, the doctor wasn’t annihilated. Why? The TCPA contains an exception that can be applied to healthcare messaging. The doctor’s legal counsel trusted this exception would protect him from the worst, and in this case, U.S. District Court Judge Deborah K. Chasanow agreed. 

What is this “exception” and why should doctors care?

Our source material elaborates below…

“Under the health care message exception found at § 64.1200(a)(2), a covered entity or its business associate may lawfully place a telemarketing call that delivers a message about health care, as long as the called party provides prior express consent.

The exception applies here because the calls delivered a ‘health care message,’” the court said. “[A] ‘health care message’ is exactly what it sounds like: A message related to an individual’s care or services. … The calls here delivered ‘health care messages’ because they relate to patients’ care and services – indeed, each call discussed impending changes to patients’ primary care.”

While it is reasonable to conclude the doctor’s messages incorporated a marketing angle, the Court Judge determined the exception still applied. The message warned patients they would lose their doctor if they did not sign up for his new practice. The Court Judge stated 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.”

“In sending the prerecorded calls, [Dr. Patrowicz] no doubt also sought to make sales; [he] wanted patients to buy memberships for his new practice,” the court wrote. “But nothing in the TCPA suggests that a health care message cannot also encourage sales. … Thus, when a call ‘delivers a health care message[,]’ it is ‘immaterial’ whether it was ‘sent for a marketing purpose’ – either way, it requires mere prior express consent.”

Let’s pause to broaden our horizons. How have other courts applied this exception? One applied the exception to a hospital that texted patients advertisements specific to flu shot services.

Does that mean doctors and hospitals can count on a free pass? Absolutely not.

As it turns out, the patient’s case was built on a falsehood. The judge found that despite the patient’s claims otherwise, the patient did in fact provide prior express written consent for the calls she received. When the patient shared her phone number with the practice, she signed several forms, including a privacy form granting the practice permission to “use and disclose” her contact information for numerous reasons. The court determined that the calls and texts the patient received fell under that umbrella. The sandbar upon which she planted her case collapsed. 

Dr. Patrowicz motioned for summary judgment, which the court granted. The court’s opinion on the case can be read here.

While the doctor lived to practice another day, the case should serve as an important reminder and a stern warning to doctors everywhere. The fact this was litigated at all is a bad outcome. Savvy plaintiffs will attempt to capitalize on these laws if given a chance. You must consider the content and purpose of your messages before scheduling a blast. Obtain written authorization from your patients before sending such materials – no matter what. Doctors shouldn’t interpret the outcomes of this case as an invitation to act brazenly – the exception won’t always bail you out. 

If you don’t take these rules into consideration, it is only a matter of time before you’re bitten. In this case, the doctor dodged a bullet. That’s good. We argue it is better never to be targeted in the first place. 

What do you think? Let us know your thoughts below.

Jeffrey Segal, MD, JD

Chief Executive Officer and Founder

Dr. Jeffrey Segal, Chief Executive Officer and Founder of Medical Justice, is a board-certified neurosurgeon. Dr. Segal is a Fellow of the American College of Surgeons; the American College of Legal Medicine; and the American Association of Neurological Surgeons. He is also a member of the North American Spine Society. In the process of conceiving, funding, developing, and growing Medical Justice, Dr. Segal has established himself as one of the country’s leading authorities on medical malpractice issues, counterclaims, and internet-based assaults on reputation.

Dr. Segal was a practicing neurosurgeon for approximately ten years, during which time he also played an active role as a participant on various state-sanctioned medical review panels designed to decrease the incidence of meritless medical malpractice cases.

Dr. Segal holds a M.D. from Baylor College of Medicine, where he also completed a neurosurgical residency. Dr. Segal served as a Spinal Surgery Fellow at The University of South Florida Medical School. He is a member of Phi Beta Kappa as well as the AOA Medical Honor Society. Dr. Segal received his B.A. from the University of Texas and graduated with a J.D. from Concord Law School with highest honors.

In 2000, he co-founded and served as CEO of DarPharma, Inc, a biotechnology company in Chapel Hill, NC, focused on the discovery and development of first-of-class pharmaceuticals for neuropsychiatric disorders.

Dr. Segal is also a partner at Byrd Adatto, a national business and health care law firm. Byrd Adatto was selected as a Best Law Firm in the 2023 edition of the “Best Law Firms” list by U.S. News – Best Lawyers. With over 50 combined years of experience in serving doctors, dentists, and other providers, Byrd Adatto has a national pedigree to address most legal issues that arise in the business and practice of medicine.