A Florida man who was a compensated blood plasma donor is suing the firm where he donated blood for sharing his information with a third party firm that sent him text messages urging him to donate again.
DCI Biologicals is an FDA-regulated business that has dozens of blood collection centers around the country. Potential donors provide some personal and medical information and are screened by a physician. They are also tested for HIV status, and are informed that some of their information may be shared, e.g., the HIV testing informed consent form notifies potential donors that positive results may be shared with federal and state donor deferral lists.
It seems that nowhere in the forms that were in use in 2010, however, are potential donors informed that their contact phone number might be shared with a third party who may send them text messages about donating again. Nor were they asked for their express written consent to such text messages.
After receiving such text messages two years after he last donated, Joseph Murphy filed suit in U.S. District Court Middle District of Florida in September 2012.
At the heart of the lawsuit is Murphy’s claim that DCI Biologicals violated the Telephone Consumer Protection Act (TCPA) by not getting his written express consent to such automatically dialed messages. The text messages were delivered by three firms: DoCircle, Inc. (aka Trumpia), Skyy Consulting, Inc., (aka CallFire), and SMSOfficer, Ltd. (aka SMS Officer). None of those firms are named as defendants in the lawsuit, and Murphy claims that those firms even tried to warn DCI Biologicals that they needed express opt-in consent for such messages.
But did DCI Biologicals really need express written consent to share information with the text messaging services under the law as it was in effect when the information sharing and text messages occurred? According to DCI Biological’s motion to dismiss the original complaint, they did not. Murphy claims DCI has that wrong.
Although some blood banks (those that are hospital-affiliated) are HIPAA-covered entities, my understanding is that not all blood banks are HIPAA-covered entities. HHS had considered bringing them all under HIPAA and rejected it, explaining that donors are not receiving health care or treatment, but are doing something to provide treatment for others. As far as I can tell, DCI Biologicals is not itself a HIPAA-covered entity even if their staff provides medical screening tests to potential blood donors. Lawyers representing DCI Biologicals declined to comment on the lawsuit, citing their policy of not commenting on pending litigation, and did not respond to my specific question as to whether DCI Biologicals is a HIPAA-covered entity as well as an FDA-regulated entity.
Given our patchwork quilt of privacy laws, it is not clear to me whether the FTC would consider a complaint, if one were to be made, that DCI Biologicals did not adhere to the written privacy assurances of its donor information and consent forms. It is also not clear to me whether HHS has any authority here, or if the FDA would investigate. Right now, what we have is a complaint alleging violations of Florida law and the TCPA.
Stay tuned.
Update of July 24: Marie-Andree Weiss made me aware of an article by William Baker on the conflicting opinions in TCPA cases. One of them is a recent Florida opinion that would tend to support the plaintiff’s claims in this case.