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Williams v. National Healthcare Review

United States District Court, D. Nevada

October 24, 2017

CHARLETTA WILLIAMS, Plaintiff,
v.
NATIONAL HEALTHCARE REVIEW et al., Defendants.

          ORDER

          RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE.

         I. INTRODUCTION

         Before the Court are Defendants' Motions for Summary Judgment. ECF Nos. 73, 74. For the reasons stated below, the Motions are granted.

         II. BACKGROUND

         Plaintiff Charletta Williams asserts violations of the Telephone Consumer Protection Act (“TCPA”) section 47 USC § 227(b)(1), Nevada Deceptive Trade Practices Act NRS 41.600, 598.0923(3), and declaratory judgment that the attempted consent was improper and invalid, and that Plaintiff and class members are entitled to $500 per call. The complaint alleges a national class consisting of all persons who received automated calls by or on behalf of defendants and for which defendants had not obtained express written consent.

         On January 12, 2015, Defendants filed a Petition for Removal from the Eighth Judicial District Court Clark County Nevada. ECF No. 2. On February 2, 2015, Defendants filed Motions to Dismiss. ECF Nos. 12, 13. On September 29, 2015, this Court granted the UHS Defendants' Motion to Dismiss with leave to amend, denied the Motion to Dismiss as to Valley Health System Defendants, and denied the Motion to Dismiss as to Adreima Defendants. ECF No. 37. On October 13, 2015, Plaintiff filed an amended complaint. ECF No. 38. On October 27, 2015, Adreima and Valley Health System Defendants filed Motions to Dismiss. ECF Nos. 39, 40. On December 8, 2015, this Court denied both Motions to Dismiss. ECF No. 49. On April 29, 2016, Adreima and Valley Health Systems Defendants filed Motions for Summary Judgment. ECF Nos. 73, 74. On May 23, 2016, Plaintiff filed Responses to Defendants' Motion for Summary Judgment. ECF Nos. 75, 76. On June 9, 2016, Defendants filed Replies to Plaintiff's Response. ECF Nos. 77, 79.

         III. LEGAL STANDARD

         A. Motion for Summary Judgment

         Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); accord Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). When considering the propriety of summary judgment, the court views all facts and draws all inferences in the light most favorable to the nonmoving party. Gonzalez v. City of Anaheim, 747 F.3d 789, 793 (9th Cir. 2014). If the movant has carried its burden, the non-moving party “must do more than simply show that there is some metaphysical doubt as to the material facts . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.” Scott v. Harris, 550 U.S. 372, 380 (2007) (alteration in original) (internal quotation marks omitted). . . .

         IV. UNDISPUTED/DISPUTED FACTS

         A. Undisputed Facts

         The Court finds the following facts to be undisputed. On or about July 17, 2014, Charletta Williams obtained medical care at the emergency room at Desert Springs Hospital, 2075 E. Flamingo Road, Las Vegas, Nevada 89119, which is owned and operated by Defendant Valley Health System, LLC (the “Hospital”). Plaintiff arrived at the Hospital at 7:03 p.m. When Plaintiff arrived at the Hospital, she put her personal information into the Hospital kiosk, including her name, social security number, address, birth date, and phone number. After being seen and treated by a nurse and a doctor, the nurse instructed Charletta to go to the discharge booth, which she did. Plaintiff then went to the discharge booth where she received some papers to sign. Plaintiff recognizes the documents attached as Exhibit 1 (of [73] MSJ) to her deposition as the documents she received at the discharge booth. Plaintiff spent about three minutes skimming and reviewing the form. Plaintiff signed the document which is attached as Exhibit 1 to her deposition at 8:14 p.m., which was after she received treatment.

         The Consent Form also provides an option for the patient to not sign the form, by including a space titled “Reason Patient Did Not Sign.” This space is located directly below where Plaintiff signed. Plaintiff signed the form. The signed form contains the following paragraphs:

“AUTHORIZATION FOR RECEIVING MESSAGES AND AUTOMATED CALLS: I give the Hospital (including its agents and third party collection agents) permission to contact me by telephone at the telephone number or numbers I provided during the registration process, or at any time in the future, including wireless telephone numbers or other numbers that may result in charges to me. … These voice messages and email and text communications may include information required by law (including debt collection laws) related to amounts I owe the Hospital as well as messages related to my continued care and treatment.”
“I also understand that the Hospital and its agents, including debt collection agencies, may use pre-recorded/artificial voice messages and/or use an automatic dialing devise (an autodialer) to deliver messages related to my account and amounts I may owe the Hospital.”
“I also authorize the Hospital and its agents to use the number or numbers provided for such pre-recorded or auto dial messages. If I want to limit these communications to a specific telephone number or numbers, I understand that I must request that only a designated number or numbers may be used for these purposes.”
“RELEASE OF INFORMATION: I authorize the Hospital, physicians and other licensed providers furnishing these services to disclose my Protected Health Information ("PHI") as that term is defined by the federal law referred to as "HIPAA" for purposes of treatment, payment and health care operations to third parties including but not limited to insurance carriers, health plans (including government health programs such as Medicare and Medicaid), or workman's compensation carriers that may be responsible for payment of the services ("Third Party Payors"). The PHI disclosed may include information about my treatment, medical care, medical history, billing information, and other information received or acquired by the Hospital and maintained in any form, including written, oral or electronically maintained information.”
“Upon inquiry the Hospital will describe my condition to callers or the public using one of the following words; undetermined, good, fair, serious or critical. If I do not want this information released I may make a written request for information about my condition to be withheld. I understand I can request a separate form to make this change.”

         Between July 21, 2014 and August 5, 2014, Adreima called Charletta's cell phone approximately five times using a prerecorded voice and an autodialer. Specifically, Adreima's call log indicates that it placed five calls to Charletta's cell phone: July 21, 2014 partial message left; July 22, 2014 message left; July 23, 2014 connected and no answer; July 24, 2014 message left; August 4, 2014 connected and no answer; August 5, 2014 call made and abandoned by receiver. The recorded message transcript is as follows:

Hello This Is Adreima calling on behalf of (Practice Name} Our records Indicate (Patient First I Last Name} had a recent visit to our facility please return our call to the toll free number (PRACTICE PHONE} our hours of operation are Monday through Friday between 6 AM and 3 PM Pacific time We look forward to hearing from you. Thank you.
Charletta listened to the voicemail she received on August 5, 2014, which was a prerecorded message instructing her to call back a certain phone number if she was Charletta Williams. The message stated the call was from Adreima, but Charletta did not know what Adreima was or why Adreima was calling her. The message was the same prerecorded message that Charletta had received several times before. When Charletta called back ...

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