Companies sometimes struggle with the application of the FCC’s TCPA healthcare exemption. That’s probably because there are two exemptions, and not just one.

One exemption–which is a complete exemption–applies for urgent treatment related messages.

One exemption–which only converts marketing messages into informational message for consent purposes–applies anytime a healthcare related message is sent to a patient.

But that last phrase is quire important, as Murtoff v. My Eye Doctor, LLC 2024 WL 4278033 (N.D. Ill. Sept. 24, 2024) demonstrates, and twice.

In Murtoff the Plaintiff visited an optometrist to obtain a quote on glasses. She provided prescription information (HIPPA protected) but did not end up buying anything. Nonetheless she began receiving calls inviting her to have an annual eye examination.

The Plaintiff argued these were marketing calls that required a level of express written consent that My Eye Doctor simply didn’t have. MED countered that Plaintiff was bling to the FCC’s healthcare exemption, which permitted the calls without PEWC.

The Court agreed with, however, and found the exemption did not apply because Plaintiff was not actually a “patient” of MED’s for the simple reason that it had never provided her any treatment. And no patient means no exemption.

The Court also found the generalized annual eye exam messages were not individualized healthcare messages tailored to Plaintiff but basically a marketing ploy sent to everyone. So even if Plaintiff was a patient, this message would not qualify as an healthcare exempt message.

But Plaintiff wasn’t a patient–which is important for another reason. She tried to represent a class of individuals that received the messages but the Court denied certification finding individualized issues of fact would be required to determine whether the call recipient was a patient or not. If they were– the healthcare exemption might apply. IF they were not, the exemption would not apply. But there was no way to figure out who was who except by a file-by-file review.

This last piece is very important in TCPA class actions. Quite often the only way to prove or disprove the legality of the texts or calls at issue is via file-by-file searches. Anytime that is the case certification should be denied. But the defendant has the burden of demonstrating those issues to raise a question of fact– and here the defense hired Ken Sponslor to conduct a sampling of 400 accounts and he returned results demonstrating a large percentage of the sample population had received treatment.

So, since treatment equals patient and patient equals exemption certification denied.

Really good one for folks to keep in mind.