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There are reportedly 1082 atoms in the universe. I have no idea how that estimate was made. To me, there are an equal number of stories of people/entities who try to do the right thing, only to later get burned.

Like CVS Pharmacy.

“A federal judge has approved a $15 million settlement in a class action accusing CVS of improperly using a robocalling system to contact customers about flu shots.” The article says, “In an order filed Jan. 30, U.S. District Judge John Lee signed off on the agreement, which ends a lawsuit that originated in 2014.” The plaintiffs had “accused CVS and its Minute Clinic of violating the federal Telephone Consumer Protection Act (TCPA) and the Illinois Automatic Telephone Dialers Act by allegedly using an automated system to place unsolicited, prerecorded calls to tell people a new round of flu shots were available, often as part of a message advising them their prescription medications were ready to be picked up.”

We have written about TCPA and liability before. We wrote about a medical spa is in the cross hairs for a TCPA violation related to its marketing campaign via text messages.

Some background.

TCPA is a cash cow for plaintiff’s attorneys. It is the second most common case filed in federal courts after employment law cases. Most insurance policies do not cover TCPA claims.

TCPA originated in the 1990s in response to telemarketing calls to land lines interrupting family dinners. That was a time when people had land lines and families actually ate dinner together at 6PM. TCPA also took aim at junk faxes clogging up machines causing recipients to spend extra money on ink and paper. That was a time when people had fax machines.

The rule was if you received a telemarketing call or junk fax (that marketed to you), you needed to have provided prior express written consent to the company seeking your attention. Fast forward to today, those rules have been modernized so that marketing text messages delivered through an automated dialing system also requires your prior express written consent.

Prior express written consent is not trivial. In some ways, it is as burdensome as obtaining a HIPAA authorization. Lots of i’s need to be dotted and t’s crossed to comply.

If YOU market to patients using an automated dialing system, here’s what that laundry list looks like for compliance.

 Identify each specific seller to whom consent is being provided
 Identify the consumer’s phone number
 Indicate an affirmative agreement (i.e., I agree/ consent)
 Disclose that the consumer is authorizing the seller to engage in advertising or telemarketing (i.e., offers for products/services)
 Disclose that the calls will be made using automated technology
 Disclose that the consumer is not required to provide consent as a condition of purchasing goods or services
 Obtain a written signature from the consumer (either electronically through E-SIGN or handwritten)

You also need to give instructions on how to stop receiving text messages (such as responding to a text by typing STOP). And you need to notify recipients they may be charged by their carrier per text message.

Prior express written consent requires MUCH more than merely asking for the patient’s phone number.
What’s the price for getting it wrong?

$500 to $1,500 per text message that did not have the proper prior express written consent.

Let’s do some math here. $500 per marketing text message for a campaign targeting 2,000 patients. That’s $1M. All it takes is one enterprising patient to receive this message to set the stage for a class action suit, bringing in all the other patients. Walla. Class action settlement. Just like CVS experienced.

To be clear, informational text messages do not require such a burdensome notification/consent process. Informational text messages using an automated system only require the customer/patient voluntarily gave you their mobile number. When the text contains marketing information the bar gets much higher.

So, CVS sent prescription pickup reminders via text messaging. That’s informational. No problem there. Then, that text message included a message about flu vaccines being available at CVS. That was perceived a marketing message. Information text plus marketing message = marketing message. Without the prior express written consent from each customer, CVS never had a chance.

Different appellate circuits treat the rules of TCPA differently and at some point, this will be adjudicated by the Supreme Court to harmonize the rules across the US and provide proper notice/guidance. Until then, I strongly urge all doctor/healthcare entities to err on the side of caution. It’s OK to use texting to market to patients. But be religious about following the rules. This includes using text messages for capturing online reviews about your practice. Getting nailed with a TCPA lawsuit can be the death knell for a practice.

Luckily, solutions exist. To help doctors manage these risks and take control of their online reputations, Medical Justice developed eMerit – our online reputation marketing platform. eMerit gives doctors the power to survey patients at their practice. It is fully compliant with TCPA. Repeat. Fully compliant with TCPA. So, none of the TCPA worries expressed above. Reviews are uploaded to the top sites patients trust – sites like Healthgrades, Vitals, Facebook, Google, and many more. We also provide our members with HIPAA compliant responses to negative reviews. 99% of patient reviews collected with eMerit are posted online.

To learn how the eMerit platform works, follow the links 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. 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.

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