Fla. Doctor Sues Personal Injury Pharmacy in TCPA Class Action

Buena Vista Medical Services solicited Florida physician Marc Sharfman and at least 40 other recipients by fax machine “without compliant opt-out language,” alleged a Monday privacy class action (docket 6:23-cv-01176) in U.S. District Court for Middle Florida in Orlando.

Buena Vista, or a third party on its behalf, sent a fax to Sharfman June 1, pitching the pharmacy for prescriptions for personal injuries in violation of the Telephone Consumer Protection Act (TCPA), said the complaint. The advertisement directed fax recipients to “Activate a Digital Pharmacy Card” for every patient, saying, “It’s free!”

The transmission promoted “$0 Medications for Auto Accidents,” with $0 upfront costs for medications for a patient, $0 activation fees and membership fees, a $0 copay on co-insurance or deductibles and “pay later -- only if you win your case.” The ad promised “24/7 customer support” and lifetime discounts on future medications.

The fax was to “entice” recipients to activate a digital pharmacy card for every patient, “thereby generating revenue and profit for Defendant every time the card is used,” said the complaint. Sharfman didn’t give Buena Vista “prior express invitation or permission” to send the fax, it said.

Plaintiff and class members were harmed by the fax because it violated their statutory right “to be free from unsolicited fax advertisements,” their right to privacy and their interest in seclusion, it said. The fax was also “a nuisance” and interfered with Sharfman’s and class members’ businesses, it said. The transmission occupied fax lines, prevented fax machines from sending and receiving authorized faxes, caused “undue wear and tear on the recipients’ fax machines,” and wasted paper and toner. It also consumed plaintiff’s time that “would have been spent on something else," the complaint said.

Plaintiff seeks for himself and the class a judgment that the defendant violated the TCPA and an award of $500 for each violation; it seeks treble damages of $1,500 per violation if the transmissions are deemed “willful or knowing.” Buena Vista didn’t comment.