Judge affirms dismissal of TCPA lawsuit over patient survey calls

By Amanda Thomas | Apr 11, 2018

SAN FRANCISCO – A federal judge has affirmed the dismissal of a putative class action lawsuit accusing a California marketing company of violating the Telephone Consumer Protection Act (TCPA) by repeatedly calling a medical group's patients.

U.S. 9th Circuit Court of Appeals Judge Susan P. Graber ruled March 29 that Audrey Fober, a member of the Health Net of California insurance plan, consented to receive quality assurance calls when she signed an enrollment form.

Fober sued Management and Technology Consultants (MTC) after allegedly receiving several calls through an automatic telephone dialing system asking about the quality of her experience with a doctor who is part of the Heritage Provider Network. The network has a contract with MTC, which conducts patient satisfaction surveys and quality-of-care analysis.

The TCPA bars "any person within the United States" from using an "automatic telephone dialing system or artificial or prerecorded voice" to call a consumer's cellphone number unless the calls are made with the recipient's "prior expressed consent," the ruling states. Congress enacted the statute to protect telephone users by placing restrictions on "unsolicited automated telephone calls."


During a Feb. 18 hearing, Graber noted consent is the main issue in the case, citing the enrollment form. In her ruling, she held that Fober gave "prior expressed consent" by completing and submitting the enrollment form.

"In completing the Enrollment Form, plaintiff agreed to receive calls meant to improve the quality of her health plan," Graber said in her opinion.

But Fober argued that her consent extended only to calls about the quality of her health plan's services, not to those concerning her doctor.

"We disagree because the text in the Enrollment Form sweeps broadly," Graber said.

She noted that the calls at issue were intended to measure whether Fober's experience with a doctor Health Net assigned through her health plan was satisfactory.

"It takes little imagination to see how that feedback might assist in improving the quality of plaintiff's health plan generally," Graber said.

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