In an unusual move, the Texas Medical Board has dropped its appeal in its case against Teladoc. The appeal itself was an unusual move, as the board appealed not the lower court's final decision, but its rejection of the state's motion to dismiss the case.
Teladoc, which offers remote medical visits, sued the TMB in state court way back in April 2015, alleging that because the board was made up of practicing doctors with a financial interest in squelching telemedicine, the board's passing of anti-telemedicine legislation constituted a violation of antitrust laws. But the medical board filed a motion asking for the suit to be dismissed on the grounds that there is, in fact, state supervision of the medical board which would make it a state agency under law and therefore immune to suit. When the judge denied the motion, the medical board appealed to the Fifth Circuit court.
The Cato Institute, which broke the news of the dropped appeal in a short blog post, suggested that the reason for the bizarre move was likely the deluge of amicus curie briefs that were filed in Fifth Circuit court, all of which supported Teladoc. These included a brief by the Cato Institute itself, as well as one from the Federal Trade Commission, which we wrote about last month.
"That should be the end of this case," Senior Fellow Ilya Shapiro wrote in the post. "Although I’m sure Teladoc and its fellow plaintiffs would’ve loved to finish litigating the appeal and get a favorable Fifth Circuit ruling, it’ll take this win all the way to the economic-liberty bank."
According to a report in Modern Healthcare, this is a strategic retreat that doesn't signify that TMB is giving up the fight entirely. When it started to look like the board would lose the appeal, it was better to withdraw it then to risk a Fifth Circuit ruling that would could support Teladoc's case in the lower court. But the Texas Medical Board will press on with its defense in the original case.