DOJ & FTC Join Telemedicine Attack on Texas Medical Board

The U.S. Department of Justice and Federal Trade Commission have sided with Teledoc, Inc., one of the country’s biggest telemedicine companies, in its legal battle with the Texas Medical Board.  The two agencies filed a joint amicus brief with a double-barrel argument against the Board’s appeal to the Fifth Circuit.

The first barrel is jurisdictional: that the Board has no right to appeal denial of its motion to dismiss Teledoc’s complaint.  The second barrel is that even if the Fifth Circuit accepts the appeal, it should affirm denial of the motion.

Teledoc filed an antitrust action against the Board and its members for adopting rules that it says unreasonably restrict video consultations, including a rule requiring face-to-face contact for a prescription.  The complaint alleges violation of Sec. 1 of the Sherman Act and notes that 12 of the 14 Board members voting for the face-to-face rule are active physicians.

The Board moved to dismiss on the grounds that its actions were “state actions” immune from federal antitrust law.  The district court denied the motion, ruling that the Board failed to show it was actively supervised by the state.

The amicus brief argues that the Fifth Circuit lacks jurisdiction because denial of the Board’s motion to dismiss is an interlocutory rather than final order and therefore not appealable.  The brief disputes the Board’s argument that the denial is appealable under the “collateral order” exception because, the brief argues, the denial doesn’t present an issue completely separate from the merits of the underlying antitrust action.

The brief argues that if the court does accept the appeal, it should affirm denial of the motion to dismiss because the Board hasn’t shown active state supervision.

The case is Teledoc, Inc. v. Texas Medical Board, No. 16-50017 (5th Cir., 2016, briefs filed Sept. 9, 2016).

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