On October 17, 2016, the Texas Medical Board (“TMB”) voluntarily dropped its 5th Circuit appeal of a lower court’s refusal to dismiss Teladoc’s case against the TMB. The appeal itself was unique in that it was not an appeal of the District Court’s final ruling, but of the refusal to grant the TMB’s motion to dismiss Teladoc’s suit on the basis that the TMB acts as a state agency under law and is therefore immune to suit.
The TMB’s move follows the recent submission of several amicus briefs to the court, including a joint amicus brief between the Department of Justice and the Federal Trade Commission (“FTC”), in support of Teladoc’s position. The FTC disagreed that the District Court order may be immediately appealed based on the collateral order doctrine, because the collateral order doctrine only applies to a small class of rulings that satisfy stringent conditions, and that the District Court’s refusal to dismiss the suit does not satisfy those conditions. That class consists of rulings that are appropriately deemed final, too important to be denied review and too independent of the cause to require that an appeal wait until final disposition of the case.
The TMB offered no reasoning in its motion to dismiss the appeal, and Teladoc did not oppose the motion. The action restarts the underlying lawsuit in the District Court where Teladoc is challenging the TMB’s rules requiring physicians to perform face-to-face examinations before prescribing certain prescription drugs. Teladoc has asserted that the rule hinders competition by telemedicine providers like Teladoc, in violation of the Sherman Act.