A Boca Raton dental practice has sued five medical service providers over claims they violated a federal law that restricts unsolicited telephone communications.
But the dental practice, Kawa Orthodontics, didn’t accuse the suppliers of making unsolicited phone calls to the dental office.
Kawa accused them of sending unsolicited messages by fax machine.
“Junk faxes,” they are called. Companies shouldn’t send them to Kawa if they don’t want to get sued.
A fax machine, for those who might have forgotten, is kind of a hybrid between a telephone, a scanner and printer.
Office workers in the 1980s and 1990s used them to quickly relay printed messages to each other.
It works like this: A sheet of paper is fed into a machine in one office. The machine converts what’s on the paper into data and sends it across the phone line as a signal. And then the machine at the other end reproduces the printed page.
In most offices, fax machines have long been replaced by email and .pdfs because it’s quicker and doesn’t require ink or paper. There are even online fax services that eliminate fax machines while using encryption to prevent hacking.
But under the radar, fax machines remain popular among a narrow set of industries, such as health care, real estate, the legal field and banking.
Faxes are seen as more secure by these industries because they are transmitted across dedicated phone lines, and not the internet. Signatures sent via fax are recognized as legal. And faxes comply with privacy requirements of the Health Insurance Portability and Accountability Act (HIPAA).
Fax machines are still used by a majority of health care providers, insurance payers and pharmacies to transfer and receive patient records or order prescriptions, according to a February 2021 data brief by the Office of the National Coordinator for Health Information Technology.
Such frequent use would make unsolicited faxes more disruptive for industries that still rely on fax machines than for a typical company that has moved onto email and internet communications.
“Junk faxes” were once considered a major problem, similar to how robocalls are regarded today.
But as fax machine use has waned generally, their continued prevalence among high-dollar industries such as pharmaceutical companies and medical services has provided an ongoing source of revenue for some plaintiffs and their attorneys.
Filed in U.S. District Court in West Palm Beach on Oct. 26, the latest “junk fax” lawsuit by Kawa Orthodontics complains that it received a lone unsolicited fax from a mobile lab service provider on Sept. 18.
Kawa’s owner declined to discuss the lawsuit.
The suit, and four others by Kawa, was filed by attorney Ryan Kelley of Anderson + Wanca, a law firm in Rolling Meadows, Illinois, that specializes in suing over junk faxes.
An image of the fax, included with the lawsuit as an exhibit, announces that Apex Laboratory is now LabFly Mobile Lab Services, coordinator of “patient-centered care for your homebound patients.”
The suit names Apex/LabFly’s owners as defendants: Northwell Health Laboratories Corporation, Northwell Healthcare, Inc., Northwell Laboratories Apex Personnel LLC, and Northwell Health Medical Inc.
It accuses Northwell of violating the Telephone Consumer Protection Act of 1991, as amended by the Junk Fax Protection Act of 2005, which makes it unlawful for any person to “use any telephone facsimile machine, computer or other device to send, to a telephone facsimile machine, an unsolicited advertisement.”
A Northwell spokeswoman reached Wednesday said she could not comment on pending litigation.
The suit seeks to create a class of at least 40 other recipients who all “suffered a concrete injury,” have had their rights under the TCPA violated, and have a claim under the TCPA. Names of other fax recipients can be found in the logs of the server that sent the faxes, the suit says.
The lawsuit seeks $500 per violation and treble awards of $1,500 if the violations are deemed willful and knowing.
The unsolicited faxes violated Kawa’s and the class’s right to privacy, are a nuisance and interfere with interstate commerce, the suit said.
In addition, the faxes occupy fax lines, prevent fax machines from receiving authorized faxes, prevent their use for authorized outgoing faxes, cause undue wear and tear on the recipients’ fax machines, use paper and ink toner if the fax was printed, waste time that would have been spent on something else, and require additional labor and effort to discern the source and purpose of the unsolicited message, the suit states.
“Defendants’ unsolicited fax advertisements were not based on an established business relationship, and the fax does not display a proper opt-out notice as required by (the TCPA),” according to the lawsuit.
In addition, the company did not obtain an invitation or permission from Kawa or the proposed class to send unsolicited fax advertisements, the suit says.
Similar arguments were made by Kawa and Anderson + Wanca attorney Ryan Kelly in 2019 against Laboratory Corporation of America, in 2020 against MedCox LLC, in 2021 against Keystone Dental, and in a separate lawsuit that year, against Unicare Life & Health, and in 2022, against Faliam, a financial operations platform for health care providers.
In a motion to dismiss, Keystone Dental argued that the unsolicited fax that was the subject of Kawa’s complaint wasn’t delivered by fax machine, but as a .pdf file emailed by an online fax service.
Laboratory Corporation of America argued that its fax stating that LabCorp was now the exclusive in-network provider for testing services for patients insured by WellCare Health Plans Inc. was informational, and not advertising.
Nevertheless, Keystone Dental, Laboratory Corporation, Faliam, and UniCare all settled with Kawa Orthodontics, court records show. Kawa dropped its case against MedCox and it was dismissed with prejudice. Terms of the settlements were not disclosed.
Ron Hurtibise covers business and consumer issues for the South Florida Sun Sentinel. He can be reached by phone at 954-356-4071, on Twitter @ronhurtibise or by email at rhurtibise@sunsentinel.com.