William & Mary Business Law Review


Encouraged by technological advancements and favorable provisions within the Affordable Care Act, telemedicine companies that offer online doctor visits are thriving in the health care industry. Online doctor visits are a relatively new and cost-efficient method to provide medical care over long distances that do not require patients to step outside their homes. However, many state medical board scope-of-practice rules prohibit physicians from prescribing medications without an in-person physical examination of the patient, which impedes telemedicine companies from offering their online services in those states. To circumvent this barrier, telemedicine companies may have a prima facie case under § 1 of the Sherman Act to strike down those professional regulations. After the Supreme Court’s 2015 decision in North Carolina State Board of Dental Examiners v. FTC, state medical boards composed of a majority of market participants likely do not enjoy Parker Immunity from the Sherman Act under the state action doctrine because they are active participants in the physician services market. That decision, along with the lessons learned from the district court proceedings in Teladoc v. Texas Medical Board, offers a framework for telemedicine companies to explore future Sherman Act challenges to restrictive state drug prescription rules.