A case before a United States Court of Appeals could restrict a state medical board from protecting patient safety through the regulation of telemedicine in that state.
At stake in Teladoc, Inc. v. Texas Medical Board is whether the Texas Medical Board has demonstrated immunity from federal antitrust laws.
The Court of Appeals is being asked to determine whether the Board may be held liable under the antitrust laws for its rule requiring a “defined physician-patient relationship to exist before a physician may prescribe dangerous or addictive medications. The necessary relationship is defined as established through either an in-person examination or an examination by electronic means with a health care professional present with the patient.
Teladoc, which uses telecommunications to connect patients and physicians, provides services in a way that would allow physicians to prescribe medications without the establishment of the required patient-physician relationship. Teladoc alleges that if the Board’s rule is valid, Teladoc would be limited in the way it could carry on business in Texas. It contends that this rule is anticompetitive and seeks to hold the Board liable under federal antitrust laws.
Telemedicine is advancing rapidly as a tool to improve access to care and reduce the growth in health care spending. Last month the AMA House of Delegates adopted new ethical ground rules for telemedicine. But the telemedicine standards of care and practice guidelines are constantly evolving and vary based on specialty and the services provided. It is important that state medical boards remain free to regulate the practice of medicine to ensure patient safety and appropriate prescribing.
“Telemedicine offers significant potential benefits to patients, including expanded access to medical care,” the Litigation Center of the AMA and State Medical Societies said in an amicus brief (log in). “At the same time, telemedicine is inappropriate for certain medical conditions, and it carries risks. Because a physician treating a patient remotely may be called upon to act with limited information, the quality of care may suffer, and a potential exists for fraud and abuse.”
“Given the complex and evolving state of telemedicine,” the brief said, “Texas’ balance of reliance on the expert board to act in the first instance, with state supervision as needed, is entirely appropriate—and should not be subject to second-guessing under the federal antitrust laws.”
Why telemedicine regulation matters
Patient safety is the guiding force behind the Texas Board’s rule. With telephonic consultations, there may be no observation or physical examination of the patient, and there may be no laboratory or other diagnostic work that the physician can use to determine a diagnosis and course of treatment.
One patient case detailed in the brief offers an example of how telephonic consultation, without an in-person examination to establish a patient-physician relationship, led to treatment errors.
“There can be real, material risk of harm from treatment without any physical examination,” the brief said. “That risk is amplified where, as in this complaint, treatment is provided to a patient who cannot even communicate his or her own condition but must rely solely on characterizations by a layperson.”
