Stuart M. Gerson, a Member of the Firm in the Litigation and Health Care & Life Sciences practices, in the firm's Washington, DC, and New York offices, was quoted in MobiHealthNews, in “Teladoc’s Antitrust Suit Against the Texas Medical Board Will Test the Limits of Recent Supreme Court Precedent,” by Jonah Comstock.
Following is an excerpt:
“As we were reminded in the North Carolina Dental Board case, there are two factors that determine the outcome of judicial review where a Board claims antitrust immunity under the so-called ‘state action’ exemption,” Stuart Gerson, a lawyer with Epstein Becker Green and former acting Attorney General of the United States, told MobiHealthNews in an email. “The first is whether the Board’s action is in furtherance of a well-articulated state policy. In the Teladoc case, it would appear that assuring patient safety likely would satisfy that criterion. However, the second, and likely determinative factor – active supervision by the state itself – is far more problematic. One sees no sign in this case that there is any automatic review or veto power in the hands of an official office or person in the state of Texas itself, where the decision maker is not a competitor of the entity that the board would act against. The lack of ‘active supervision’ by the state was the critical factor in the Supreme Court’s reasoning and, to the extent that Teladoc can make the same point, it very well can prevail.”
This article was mentioned in iHealthBeat.
