A brief has been filed with the U.S. Supreme Court that, if the court decides to hear the case, could have wide-ranging implications for online medical care and the limits of a physician’s First Amendment right to free speech.
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Explore This IssueOctober 2015
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Medical Advice Via e-Mail
Institute for Justice Senior Attorney Jeff Rowes filed the brief at the end of June on behalf of a Texas veterinarian who was punished by the Texas Board of Veterinary Medical Examiners for giving advice about pets via e-mail. Retired and physically disabled, Ron Hines, DVM, PhD, of Brownsville, Texas, was contacted years ago by missionaries in a remote part of Nigeria who wondered how to help a stray dog suffering from distemper. Dr. Hines advised them to look through their medicine cabinets to see if they happened to have anything that he thought might help the dog recover.
The missionaries had no access to a vet, and they had never met Dr. Hines. Instead, the missionaries contacted him after they came across his online articles about pets—articles on the “Ten Rules for Finding the Right Pet,” “Preventing Dental Problems in Your Cat” and “Ain’t Misbehavin’—Training Your Puppy”—thinking he might be able to give them some advice.
Many people around the world do not live close to a veterinarian. Over a 10-year period, half of Dr. Hines’s clients were not in the U.S. In complex cases when people in North Africa asked him for advice, he often recommended that they take their animal to a Dutch friend and colleague of his practicing in Marbella, Spain. Some complex cases he sent to acquaintances at the veterinary school in Ghent, Belgium. Difficult Middle Eastern cases he referred to friends he trusted at the veterinary school in Bursa, Turkey, Dubai or Irbid, Jordan.
Dr. Hines was not prescribing medicine, but he was giving advice based on his many years of experience. The Texas Board of Veterinary Medical Examiners eventually took notice. The Board “threatened to permanently revoke my veterinary license if I ever provided ‘any opinion related to the health and well-being of any animal anywhere in the world’ through e-mail, telephone or other electronic means unless the animal was presented to me in person.”
The Board also fined him, placed him on probation and made him retake the veterinary jurisprudence portion of the licensure exams as punishment for having done so in the past. Dr. Hines had violated a Texas board regulation stating that a vet cannot give advice about a specific animal unless he has physically examined the animal.
“We need rules,” Dr. Hines says, “but a blanket prohibition of contact between people with knowledge and people seeking it just seems a bit of an over-reaction. Because I was a licensed veterinarian, I could not venture an opinion having to do with animals of any sort, and yet if I had seen that animal 10 years ago, even if I had never touched it, and it had only walked through my office, then I could make any type of claim whatsoever. … You need to have rules, but I don’t think you can just ignore the digital age,” he says.
The Institute for Justice agreed that Dr. Hines should be able to have a conversation with people about their pets on the Internet, even if he has a veterinary license, and the organization decided to take on Dr. Hines’s case. First, the Institute represented Dr. Hines in a lawsuit against the Texas Board and argued that Dr. Hines’s free speech rights had been violated. When the Court sided with Dr. Hines, the Board appealed the decision to the 5th U.S. Circuit Court of Appeals. That court ruled against the vet, saying, “if you are speaking and giving someone individual personal advice, we are going to call that conduct,” Mr. Rowes explains.
Mr. Rowes contends that the vet’s free speech case is essential to the future of telemedicine. “The question is whether that revolution takes place in an environment in which doctors have free speech rights or one in which they don’t. Our case, even though it seems as though it is about something simple—just a veterinarian talking about a cat or a dog—the core constitutional issue is one that applies directly to doctors.” In other words, does a state government that regulates occupations have the right to censor personal advice?
As Mr. Rowes wrote in a column published in USA Today, Dr. Hines’s case is a “First Amendment challenge to the use of a 19th century regulatory model to suppress a 21st century technology that can often disseminate knowledge faster, better and cheaper than a visit to a brick-and-mortar veterinarian.”
Barriers to Telemedicine
Dr. Hines’s problems with the Texas veterinary board illustrate some of the barriers to physicians and patients wanting to participate in telemedicine in certain states. There are 51 licensing jurisdictions in the U.S., a “patchwork of conflicting and disparate requirements for insurance claims and practice standards that prohibit them from fully taking advantage of telemedicine,” according to a report this year from the American Telemedicine Association.1
The report notes that 22 states have a “supportive policy landscape” for telemedicine adoption and usage; 26 plus the District of Columbia have “room for improvement.” Alabama, Arkansas and Texas create the most stringent clinical practice rules for telemedicine providers compared with in-person practice. Every state, however, makes practicing medicine across state lines difficult, whether the care is delivered via telemedicine or not, according to the report.
Another case making its way through the Texas courts centers on the state Medical Board’s regulations on telemedicine. Teladoc, based in Dallas, offers online access to a consultation with a physician for non-emergency care for such conditions as cold and flu symptoms, urinary tract infection, ear infections, poison ivy, bronchitis, etc. Doctors associated with Teladoc can order a short-term prescription for common medications, such as antibiotics and antihistamines, and can advise patients whether they should see a specialist. The organization works with several employer-sponsored insurance plans across the country.
The Texas Medical Board objected to Teladoc’s operation in that state. The board says that it was adopting a rule that would take effect on June 3 requiring that doctors first meet in person with the patient before writing a prescription, according to an article in the Dallas Morning News.² Teladoc filed a lawsuit against the Board in May, alleging the Board was trying to stifle competition. The Texas Tribune reported recently that although the suit is still in the courts, a U.S. District judge has issued a temporary injunction against the rule taking effect until the lawsuit is settled.³
The American Medical Association adopted a new telemedicine policy at its annual meeting last year.4 The new policy, according to AMA President Robert M. Wah, MD, establishes the foundation for physicians to use telemedicine to “help maintain an ongoing relationship with their patients, and as a means to enhance follow-up care, better coordinate care and manage chronic conditions.”
The policy calls for a physician to be licensed within the state where the patient is receiving services and that a valid patient–physician relationship be established before delivery of telemedicine services. This relationship should be established by a face-to-face examination “if the face-to-face encounter would otherwise be required in the provision of the same service not delivered via telemedicine,” or through a consultation with another physician who has an ongoing patient–physician relationship with the patient.
A Cato Institute report by Simon Lester, published in March, outlines barriers to telemedicine in the U.S., including the requirement for licensing in the state where the doctor practices medicine and in the state where the patient is located.5 “With doctors and nurses providing medical advice online, the idea that their advice can or should be restricted to people within their borders seems arbitrary,” Mr. Lester wrote.
The Federation of State Medical Boards (FSMB) has appointed a workgroup to consider the questions concerning appropriate regulation of telemedicine. FSMB’s model policy about telemedicine states that even if there is no existing physician–patient relationship prior to the telemedicine encounter, the physician must be licensed by the medical board of the state where the patient is located.6 The policy also states that the physician–patient relationship may be established using telemedicine technologies.
According to René Quashie, senior counsel at the law firm Epstein, Becker & Green in Washington, D.C., FSMB wrote the model policy hoping to loosen some of the restrictions involved in telemedicine. In a presentation at the Cato Institute in May about removing barriers to online medical care, Mr. Quashie says some state medical boards have adopted some or all of the recommendations of the FSMB, but there has not been enough support to pass the policy.
The Interstate Medical Licensure Compact could help eliminate that barrier in states that choose to participate. In July, the FSMB received an award from the Health Resources and Services Administration to establish the Interstate Medical Licensure Compact Commission, which will create bylaws, rules and processes to be used by participating states when they begin expediting licensure for eligible physicians. The Interstate Compact will establish a voluntary pathway to streamline the licensing process for physicians who want to practice medicine in participating states, thus eliminating one of the significant barriers to multistate practice and telemedicine.
Free Speech Issues
The vet’s case, according to Mr. Rowes at the Institute for Justice, has implications for other free speech issues that are affecting physicians, ones that are “forcing physicians to say certain things or prohibit them from saying certain things that the doctor thinks are useful for the patient to know.”
As an example, some states have passed laws compelling doctors to tell their patients seeking an abortion about the age, size and other details about the fetus. He says there are a number of cases unfolding in the U.S. about whether or not doctors actually have a right just not to do that, not to become spokespeople for the ideological perspective of the government. If the doctor doesn’t feel that it is necessary to provide that information and the patient doesn’t want that information, does the doctor have the right not to say it?
“The outcome of these abortion cases depends on how courts treat the First Amendment rights of doctors in the doctor–patient relationship,” Mr. Rowes says.
The AMA filed an amicus brief in 2012 that opposed Florida’s law prohibiting physicians from asking patients about gun ownership. The law, the AMA says, “infringes on a physician’s right to free speech and puts physicians in the untenable position of risking disciplinary consequences or abandoning ethical obligations.” The AMA asked the 11th U.S. Circuit Court of Appeals to uphold a federal court decision in 2011 that ruled the gun gag law was unconstitutional.
Jeremy A. Lazaurs, MD, then president of the AMA, contended that “lawmakers cannot insert the state into the patient–physician relationship by dictating, prohibiting or threatening the open communication between patient and physician,” and that the AMA would “vigorously defend the patient–physician relationship and the free speech necessary for the practice of medicine.”
The court, however, upheld the Florida law last year.
The AMA subsequently passed a resolution in June opposing “any attempt by local, state or federal governments to interfere with a physician’s right to free speech as a means to improve the health and wellness of patients across the U.S.”
Dr. Hines, regardless of whether the Supreme Court hears his case, says he has plenty to occupy his time, including writing about the vaccination programs suggested in unusual animals, such as hippos and rhinos, and through his work as a licensed rehabilitator for the state of Texas, the only one south of Corpus Christi. He is also federally licensed by the U.S. Fish & Wildlife Service to do so and to supervise subpermittees in remote locations.
In a twist of bureaucratic irony, the Texas Parks & Wildlife Service puts Dr. Hines’s e-mail address and phone number on its website so that people can contact him for help and advice. “A lot of people cannot bring in the animal; they just call me, we correspond by e-mail, and I explain to them how to feed and care for its health needs. So I have one part of Texas sending them to me, and the other part punishing me if I answer. It’s really bizarre,” he says.
“It’s bunny season right now in Texas, so people call or e-mail, and I help them determine the age of the bunny based on size and photographs they e-mail or Skype me. If the bunny is too young to leave the nest, my advice is to put it back in the nest whenever possible. If they can’t do that, then I tell them how to feed and care for it properly.
“So I’m resigned to losing my license. I’m almost 72 now, and I’ve done this almost all my life. If they want to take away my license for the bunnies, that’s their right … unless the court says differently.”
Kathy L. Holliman, MEd, is a medical writer based in Beverly, Mass.
- Federation of State Medical Boards. Model Policy for the Appropriate Use of Telemedicine Technologies in the Practice of Medicine: Report of the State Medical Boards’ Appropriate Regulation of Telemedicine (SMART) Workgroup. April 2014.
- Landers J. Dallas-based Teladoc sues Texas Medical Board over prescription ruling. The Dallas Morning News. April 29, 2015.
- Walter E. Teladoc scores victory in clash with medical board. The Texas Tribune. May 30, 2015.
- American Medical Association. Report 7 of the Council on Medical Service (A-14): Coverage of and Payment for Telemedicine. Executive Summary. June 2014.
- Lester S. Expanding trade in medical care through telemedicine. Policy Analysis. 2015 Mar 24.
- Thomas L, Capistrant G. State Telemedicine Gaps Analysis: Physician Practice Standards & Licensure. American Telemedicine Association. 2015 May.