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Medical Debt Collectors and the Telephone Consumer Protection Act

A court has ruled that a medical debt collector may make automated collection calls to a patient's cell phone notwithstanding the fact that the patient's wife provided the number to the hospital, not the collector.  Specifically, the United States Court of Appeals for the Eleventh Circuit reversed a district court's grant of summary judgment in a Telephone Consumer Protection Act (“TCPA”) action against a medical debt collector under the so-called “prior express consent” exception.  

In Mais v. Gulf Coast Collection Bureau, Inc., Case No. 13-14008 (11th Cir. 2014), the Eleventh Circuit focused upon a 2008 ruling of the Federal Communications Commission (“FCC”), which held that calls to wireless telephone numbers provided in connection with a pre-existing debt are permissible as calls made with the prior express consent of the called party.  23 FCC Rcd. 559, 564.
After receiving radiology treatment, the patient's wife signed hospital admission forms on behalf of the patient and provided the patient's mobile telephone number.  She also acknowledged receipt of the hospital privacy notice, which permitted it to use and disclose health information to bill and collect payment.  The number was eventually provided to Gulf Coast Collection Bureau, which is a debt collector that uses an automatic dialer to call telephone numbers and leave messages.  

The patient sued Gulf Coast, alleging inter alia that such collection practices violate the TCPA because the telephone phone number was provided to the hospital, not Gulf Coast.  The district court granted summary judgment in favor of Mais.  On appeal, the Eleventh Circuit reversed.
The Eleventh Circuit found that the FCC ruling was intended to reach a wide range of creditors and collectors, including medical debt collectors. Therefore, prior express consent was obtained in accordance with the ruling.  Moreover, the court held that there was no practical distinction between the patient providing his telephone number directly and disclosure by an intermediary because the main issue is whether the party gave consent to be contacted, not whether the number was provided directly.

This ruling raises a question as to how attenuated or distant must the connection be between the collector and the debtor before they fall out of the prior express consent exception.  Disputes over tracing such tenuous connections appear ripe for litigation.