Barely over a week ago the federal Fifth Circuit Court of Appeals issued a powerful opinion overturning the state of Texas ban on a telemedicine VCPR. This decision immediately impacts the three states under jurisdiction of the Fifth Circuit: Texas, Louisiana and Mississippi.
But you should expect that the other 10 federal circuits will pay attention to this ruling. The court’s opinion was comprehensive and painstaking in its analysis and dismissal of each argument raised by Texas to defend its ban. The Fifth Circuit repeatedly challenged . . . and then dismissed the claim that animal healthcare was so different from human healthcare which, of course, in all 50 states allows for a virtual formation of the doctor-client relationship.
I have quoted below extensive sections of the Fifth Circuit opinion so you may judge for yourself. You’re invited to put on your “lawyer hat” for a moment and dive in. It’s a lengthy read, but worth it.
Don R. Willett, Circuit Judge, served as author of the opinion:
“Dr. Ronald S. Hines is a retired, physically disabled, Texas-licensed veterinarian who enjoys spending his golden years giving online pet-care advice to animal lovers around the world—often for free. Dr. Hines does not physically examine animals, perform surgeries, apply casts, splints, or bandages, administer vaccinations, or prescribe prescription medication. He merely sends emails. This would be no problem if the patients were people instead of pets. For humans, Texas law allows telemedicine without first requiring a face-to-face examination to establish a physician-patient relationship. Not so with animals, which require an in-person visit. Exam- free telehealth, turns out, is fine for your Uncle Bernard, but not for your Saint Bernard.
“Today, we uphold Dr. Hines’s First Amendment rights. We specifically conclude that the State of Texas is directly regulating Dr. Hines’s speech and that this regulation fails to survive even intermediate scrutiny. We accordingly REVERSE and REMAND with instructions to enter judgment for Dr. Hines.
“In 2012, the Texas State Board of Veterinary Medical Examiners informed Dr. Hines that his wholly electronic veterinary practice violated Texas law. The law at issue requires veterinarians to establish a veterinarian- client-patient relationship (VCPR) before engaging in the practice of veterinary medicine. Under the statute, a VCPR exists if, as relevant here, “the veterinarian . . . possesses sufficient knowledge of the animal to initiate at least a general or preliminary diagnosis of the animal’s medical condition.” A veterinarian can establish the sufficient-knowledge requirement in two ways: “(1) examining the animal; or (2) making medically appropriate and timely visits to the premises on which the animal is kept.” The VCPR “may not be established solely by telephone or electronic means.
“The State concluded that because Dr. Hines’s advice constituted the practice of veterinary medicine, and because Dr. Hines never physically examined the animals that were the subject of his advice—facts that Dr. Hines concedes—he had not established a VCPR and thus violated the law. In response, Dr. Hines put a disclaimer on his website, informing readers that he could not “engage[] in the ‘practice’ of veterinary medicine as defined by Texas law,” meaning that he could not offer “specific diagnosis [or] treatment,” among other things. But this did not satisfy the State. So, in 2013, Dr. Hines and the State entered into an agreed order, “formally reprimanding [Dr. Hines], imposing a year of probation, fining him $500, and forcing him to retake the jurisprudence section of the veterinary licensing exam.”
About two weeks later, Dr. Hines sued the State, alleging that the physical-examination requirement violated his First Amendment rights.
“While we assume that the State’s interests are significant in the abstract, we conclude that the State has failed to show that the harms it seeks to address with the physical-examination requirement are real. And even assuming the State could make this showing, the physical-examination requirement doesn’t alleviate those harms in a “direct and material way. The State asserts four interests: “protecting animal welfare, promoting public confidence in professional licensure, maintaining minimum standards of care, and preventing the spread of zoonotic disease.” Dr. Hines conceded before the district court that these interests are significant—at least in the abstract—and he does not argue that the interests relate to the suppression of speech. So we assume that the State’s interests are significant. But that does not end the inquiry. We must still examine whether the physical-examination requirement “will in fact advance those interests.
“The State’s defense of the physical-examination requirement focuses exclusively on its interest in animal welfare. So we consider whether the alleged harms to animal welfare are real, and if so, whether the statute alleviates those alleged harms. First, the State has failed to show that the alleged harms to animal welfare in the context of the physical-examination requirement are real. The State alleges that the physical-examination requirement protects animal welfare by reducing the risk that veterinarians will misdiagnose—and thereby harm—animals. In other words, the harm the State seeks to address is misdiagnosis by veterinarians who conduct telemedicine without first performing a physical exam.
“To meet its burden to show that the harm it alleges is real, the State may rely on empirical data, anecdotal evidence, and studies.“ The evidence on which it relies need not ‘exist pre-enactment.’ This requirement may also be satisfied with ‘history, consensus, and simple common sense. But it cannot rely on “mere speculation or conjecture.” As evidence of harm, the State presented a literature review, expert testimony, anecdotal evidence, and expert analysis of Dr. Hines’s conduct. Dr. Hines argues that this evidence is little more than conjecture. Although we acknowledge that, in some cases, states may enact prospective regulations, and we acknowledge that the State’s concerns for animal welfare are legitimate, we agree with Dr. Hines that the State has failed to show sufficiently “real” harm as required by our precedents. We address each category of the State’s evidence in turn.
“First consider the State’s expert testimony. The State’s first expert, Dr. Carly Patterson, testified to the general benefits of a physical exam. She explained that “[t]he physical exam is the cornerstone of all veterinary care” because “[w]ithout it, veterinarians are left to aimlessly pursue diagnostics that might be needless and in the worst case scenario, completely circumvent the actual problem at hand, resulting in the death of the patient.” Because, in her view, the physical exam “is what helps [veterinarians] localize the actual nature of the problem,” she testified that “[i]n the absence of a physical exam,” a veterinarian “cannot proceed forward with a logical and defensible plan for [a] veterinary patient.” She also testified that in-person exams are “critical” because “pet owners can’t speak for the pet themselves,” and “even diligent pet owners may miss the subtle clues that only a physical exam can provide.
“The State’s expert testimony at least establishes that a physical exam can detect conditions that may not have otherwise been discovered. But neither expert identified any evidence of actual harm caused by telemedicine without a prior physical examination. Before the district court, the State relied on a literature review conducted by Dr. Teller. The State does not press this evidence before us now, likely because the review didn’t find any evidence of actual harm. It found “no published reports of veterinarians providing inadequate or substandard care via virtual care.” And it found no “studies comparing in clinic visits with telehealth visits to determine if there is concordance between the findings of those exams.” Although it mentions “risks of missed diagnoses” as a “concern[],” a hypothetical concern—even if seemingly significant—is insufficient to identify a “real harm.
“Dr. Patterson’s anecdotes fare no better. We agree with Dr. Hines that these anecdotes are “guesses about what would have happened after telemedicine that never occurred” rather than evidence of real harm. Like Dr. Patterson’s testimony about the benefits of the physical exam, the anecdotes at most establish that a physical exam can help veterinarians detect ailments that they may have missed over a telemedicine appointment. A missed diagnosis does not actively harm the animal; a misdiagnosis, on the other hand, might (neither of which Dr. Hines has done, according to the record).
“The expert testimony about Dr. Hines’s conduct is the least compelling. Dr. Hines has been answering emails for nearly twenty years. And yet, Dr. Teller could not provide a single instance where Dr. Hines’s emails harmed an animal. Indeed, she testified that Dr. Hines only “potentially” or “‘likely’ harmed animals,” and she admitted multiple times that “it is unknown if Dr. Hines’[s] actions caused harm.” This testimony cannot be characterized as anything more than conjecture and speculation. The State has effectively proven that veterinarians believe that a physical exam is helpful and that telemedicine should be used only as a follow up to the in-person exam. Indeed, a physical exam seems to be a plus factor to a veterinarian’s analysis—a check for physical ailments or physical manifestations of ailments that may not be readily apparent to a pet’s owner. These are risks that an individual knowingly chooses to forego by choosing a telemedicine appointment for their animal.
“But proving that a physical examination is helpful is not enough. The State has failed to meet its burden of proving that misdiagnoses from telemedicine are a real harm in this case. The State emphasizes that the physical exam reduces the risk of misdiagnosis from telemedicine without an exam and argues that it can enact prophylactic rules before the harm occurs.
“The first problem with the State’s chosen means is apparent on the face of the statute itself. There are two ways a vet can establish the VCPR, and one of them doesn’t require a physical exam at all. To recap, a veterinarian must first establish a VCPR before practicing veterinary medicine. The VCPR exists “if the veterinarian: . . . possesses sufficient knowledge of the animal.” And “[a] veterinarian possesses sufficient knowledge of the animal…if the veterinarian has recently seen, or is personally acquainted with, the keeping and care of the animal by: (1) examining the animal; or (2) making medically appropriate and timely visits to the premises on which the animal is kept.” But the VCPR cannot “be established solely by telephone or electronic means.
“The State does not explain how the law alleviates the harm of misdiagnoses from telemedicine without a physical exam when the VCPR can also be established by a visit to the premises without a physical exam. Although the State’s experts testified that the premises-visit option is typically used for herd animals, she conceded it is not so limited, testifying that the “premises” visited “could be the premises on which a dog is kept.” Nor does the plain text provide this limitation. And furthermore, the State fails to explain why a “recent[]” physical examination—which has no definition—is sufficient to establish a VCPR. For example, why would a “recent” physical examination in the last year or two provide any better insight into an animal’s condition than a real-time telehealth appointment without a preceding physical examination?
“If that weren’t enough, the State’s looser approach to human welfare undercuts the State’s insistence on a physical exam to advance animal welfare. After all, the State of Texas allows exam-free telemedicine for babies and noncommunicative adults—those who, like animals, cannot communicate with their physicians. How can the State insist a hands-on exam is necessary to protect animals while conceding a hands-on exam is unnecessary to protect humans? Put differently, why does Texas mandate tougher telehealth rules for veterinarians treating animals than for physicians treating people The State does not say.
“If a pediatrician can use telemedicine to treat a three-month old infant—based upon medical records, the parent’s description of external symptoms and a visual examination of the child—the Court cannot adduce why a veterinarian cannot do the same for a dog, cat, or hamster.”
(“Babies and other non-communicative adults were intentional beneficiaries of Texas’s expansion of telemedicine, not the subjects of unwitting overinclusion. Texas has never shown a preference for animals over humans that would support requiring higher standards for animals’ medical treatment. Cf. Strickland v. Medlen, 397 S.W.3d 184, 185 (Tex. 2013) (Willett, J.)
“The State’s contention that “at present, there is no alternative to the physical exam that outweighs the risks of causing animal harm or death from an improper diagnosis and treatment plan” rings hollow because as explained above, the statute itself provides an alternative. The VCPR can be established—and not just maintained—by a visit to the premises without a physical exam. And the veterinarian need never lay eyes on the animal during the visit. Although the law does not have to be the least restrictive means to pass intermediate scrutiny, it must still be a close fit, and the State must show that it doesn’t “regulate expression in such a manner that a substantial portion of the burden on speech does not serve to advance its goals.” If Dr. Hines has never actually harmed any animal—and the State provides zero evidence that he has—then the heavy burden on his speech doesn’t advance the State’s interest in animal welfare.”