A California federal court handed down a decision last Friday that may further influence how healthcare entities should approach the Telephone Consumer Protection Act’s (TCPA) “emergency purpose” exception as applied to calls or texts related to patient health and safety. In St. Clair v. CVS Pharmacy, Inc., No. 16-CV-04911-VC, 2016 WL 7489047, at *1 (N.D. Cal. Dec. 30, 2016), the plaintiff alleged that CVS Pharmacy called him multiple times about his prescriptions after he told a customer representative that he no longer wished to be called. CVS moved to dismiss the lawsuit by claiming that all of the calls at issues fell under the emergency purpose exception contained in the statute, and therefore were not subject to the TCPA.
The court denied the motion to dismiss. In support of its decision, the St. Clair court cited to broad language in the congressional record about “natural disasters” and service outages in interpreting Congress’ intent on the meaning of emergency purpose and held that “[t]hese examples are nothing like the situation presented in this case, namely, automated calls about prescriptions to people who have previously stated they do not wish to receive them.” St. Clair v. CVS Pharmacy, Inc., No. 16-CV-04911-VC, 2016 WL 7489047, at *1 (N.D. Cal. Dec. 30, 2016).
Notably, this same broad language was rejected by a Missouri federal court last summer in favor of a plain language reading of the promulgated regulation. See Roberts v. Medco Health Sols, Inc., No. 4:15-cv-13680CDP, 2016 WL 3997071 (E.D. Mo., July 26, 2016) (interpreting 47 C.F.R. 64.1200(f)(4)).
The St. Clair court also rejected the Roberts decision in the context of a do not call request as follows:
Assuming, for argument’s sake only, that Roberts was correctly decided, it does not stand for the proposition that all prescription-related calls are categorically made for emergency purposes. It stands only for the proposition that five calls, after an analysis of the evidence relating particularly to those five calls, fell within the exemption at the summary judgment stage.”
Id. at *2 (citing Kolinek v. Walgreen Co., No. 13 C 4806 (N.D. Ill. Aug. 11, 2014) (rejecting the argument that prescription-related calls categorically fall within the emergency purposes exemption)).
The St. Clair decision illustrates the continuing uncertainty in the TCPA’s application by courts. Healthcare providers and entities who place calls or texts to patients regarding appointments, prescriptions reminders, and other issues should continue to monitor their outreach programs for compliance and the evolving TCPA case law that continues influence potential liability.