Antitrust Law Daily Wrap Up, PRIVACY—6th Cir.: Hospital patient forms gave consent to calls by debt collector over delinquent accounts, (Feb 16, 2016)

By Linda O’Brien, J.D., LL.M.

Two consumers who provided their cell phone numbers on patient consent forms signed upon admission to a hospital were deemed to have given their consent to be called by a physician group’s collection service for purposes of the Telephone Consumer Protection Act, the U.S. Court of Appeals in Cincinnati has ruled. Thus, a district court’s order granting summary judgment in favor of the debt collector was affirmed (Baisden v. Credit Adjustments, Inc., February 12, 2016, Griffin, R.).

Zachary Baisden and Brenda L. Sissoko received medical care from Mount Carmel Hospital in Columbus, Ohio and were provided anesthesiology services from Consultant Anesthesiologists. Upon admission to the hospital, Baisden and Sissoko signed patient consent and authorization forms, providing that Mount Carmel could use their health information for billing and payment. After Baisden and Sissoko failed to pay those bills, Consultant Anesthesiologists transferred the delinquent accounts to Credit Adjustments, Inc., a health care collection service. Credit Adjustments called Baisden and Sissoko’s cell phone numbers, having received the contact information from Consultant Anesthesiologists, which received it from Mount Carmel Hospital.

Baisden and Sissoko filed a putative class action suit against Credit Adjustments, alleging that the company violated the Telephone Consumer Protection Act (TCPA) by using an automatic telephone dialing system and a pre-recorded voice to place calls to their cell phones when they did not give their numbers to Credit Adjustments. The district court granted the defendant’s motion to summary judgment on the grounds that the plaintiffs gave their “prior express consent” by providing their contact information to Mount Carmel Hospital. The plaintiffs appealed.

Prior express consent. The district court did not err in determining that consent can be conveyed by another party, the appellate court found. According to the court, the Federal Communications Commission (FCC) has provided extensive guidance regarding what constitutes “prior express consent.” The guidance has included a form of implied consent where a person knowingly releases his or her phone number, meaning that they have given permission to be called at that number, absent instructions to the contrary. Further, consent may obtained by and conveyed through an intermediary.

The plaintiffs’ argument that “prior express consent” may be granted only if the wireless number was provided by the consumer to the creditor was rejected as a narrow interpretation of the FCC guidance. The court noted that the TCPA did not prohibit a caller from obtaining consent through an intermediary and a proper analysis turned on whether the called party granted permission, not on whether the creditor received the number directly. If, as in this case, a person provides a cell phone number to a health organization seeking medical treatment and the provider of that organization treats that person, then it is reasonable to interpret the provision of the cell phone number as permission to call for something arising out of that treatment. Therefore, the provision of a cell phone number to a hospital that then provides that number to an affiliated physician group, providing medical services to the consumer arising out of the same occurrence, can constitute “prior express consent,” the court determined.

Health information. Finally, the district court did not err in finding that “health information” on the plaintiffs’ patient consent and authorization forms included their cell phone numbers. Under HIPAA, the court explained, health information includes any information received by a health care provider relating to the past, present, and future payment for the provision of health care to that individual. It also includes a patient’s contact information for billing and payment purposes. Here, the plaintiffs sought medical treatment from Mount Carmel Hospital. In the course of this relationship, they gave their cell phone numbers to the hospital and authorized it to disclose those numbers to others. The debts owed by the plaintiffs arose from the transactions in which they provided their cell phone numbers. Thus, the case fit within the limits set forth by the FCC, the court concluded.

The case is No. 15-3411.

Attorneys: Daniel R. Freytag (Freytab Carpenter LLC) for Zachary Baisden and Brenda L. Sissoko. Brian M. Spiess (Montgomery, Rennie & Jonson) for Credit Adjustment, Inc.

Companies: Credit Adjustments, Inc.

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