Supreme Court Decision in North Carolina State Board of Dental Examiners v. Federal Trade Commission Prompts Legal Challenges to State Professional Boards

Earlier this month a Texas federal district court judge granted a motion by Teladoc, Inc. (Teladoc) for a preliminary injunction enjoining the Texas Medical Board (TMB) “from taking any action to implement, enact, and enforce” a TMB rule requiring doctors to conduct an in-person exam prior to telephonic diagnosis and treatment of patients, regardless of whether the exam is medically necessary. (Background on this and other disputes involving Teladoc and TMB is available here and here.

Despite the much-anticipated ruling in Teladoc, the court did not review the TMB rule under the Supreme Court’s decision in North Carolina State Board of Dental Examiners v. Federal Trade Commission, which provides that professional boards, when comprised primarily of active market participants, are exempt from antitrust claims only if they are actively supervised by the state government.

Why, you may ask? Well, the court found itself in an atypical situation because “TMB declined to assert any immunity defenses” in defense of the challenged rule.

So where does that leave us? Waiting for this and other cases challenging state professional boards in the aftermath of the Dental Examiners decision to play out in the courts.

A rundown of recent litigation, for those of you keeping score, include:

• Ouch! The Mississippi State Board of Medical Licensure is facing an antitrust challenge to its regulations that preclude nonphysicians from owning pain management medical practices.
• Chihuahuas, Terriers, and Spaniels, Oh My! A veterinarian accused of giving small dogs half the recommended rabies dosage is suing the Connecticut Board of Veterinary Medicine and five of its members for “enforcing labeling directions that prohibit the vet’s vaccination protocol to shield themselves from competition.”
• LegalZoom(ed)! The “premier online legal destination for small businesses and consumers” is suing the North Carolina State Bar for allegedly excluding LegalZoom from offering its prepaid legal services plans in North Carolina.

These plaintiffs “ain’t wastin’ time no more” sitting on the antitrust sidelines. More antitrust lawsuits surely will follow.

*By Greg Allman, performed by The Allman Brothers Band