The state of California's doctor licensing rules, which forbid patients from using telemedicine to receive care from out-of-state physicians, unconstitutionally trespass upon both interstate commerce and the rights of patients to discuss matters of their own health with the physicians of their choice, a new federal lawsuit alleges.
On May 16, a woman, identified as a resident of a "remote small town in northern California" and a New York doctor, filed suit against the president of the California Medical Board, challenging California's so-called telehealth licensure rules.
Under California law, doctors who provide telehealth services directly to patients in California must be licensed to practice medicine in the state by the state's Medical Board.
If not, those doctors could face criminal prosecution and the risk of fines of up to $10,000 or jail time.
The restrictions do not apply to out-of-state doctors who use telehealth services to consult with licensed California doctors on patient cases.
However, as both medical technology and communications tech have advanced in the 21st Century, the ability of doctors to provide certain kinds of medical care to patients remotely has expanded exponentially. This was on display amid the societal restrictions imposed during the Covid pandemic, when doctors were urged to limit direct patient interactions, and states eased past restrictions on remote health care.
However, those restrictions remain in place in California, according to the new lawsuit.
Filed in federal court in the Eastern District of California in Sacramento, the lawsuit asserts California's rules violate the U.S. Constitution on several fronts, including serving as improper limits on interstate commerce; unconstitutional restrictions on the ability of doctors to practice medicine and provide care to patients across state lines; and the First Amendment rights of doctors and patients to discuss health care, as they wish.
“Limiting access to medical specialists benefits no one,” said Caleb Trotter, an attorney at Pacific Legal Foundation, who is representing the plaintiffs in the case. “There is no excuse for Californians — or anyone — to suffer simply because a member of their care team is in another state.”
The lawsuit was filed by plaintiffs Shellye Horowitz, of northern California, who allegedly has a rare condition known as hemophilia A, which impacts her body's ability to clot blood properly, and Dr. Sean McBride, a New York radiation oncologist at Memorial Sloan Kettering Cancer Center.
According to the complaint, California's telehealth licensing restrictions force Horowitz to choose between driving 14 hours to see hemophilia specialists in Portland, Oregon, or go without potentially lifesaving medical care.
According to the complaint, Horowitz had received telehealth care from those specialists in Oregon. But that remote care was terminated, allegedly out of fear by the doctors of prosecution under California's rules.
According to the complaint, there are only 10 federally funded hemophilia treatment centers in the U.S. with the ability to treat Horowitz's condition. One such clinic is in southern California, but also would require Horowitz to travel 11 hours from her home, which the complaint said make that option "infeasible for Shellye due to the length of travel and time off work needed to seek treatment there, even if some telehealth visits were available."
According to the complaint, the clinic in Portland was the first on the West Coast to specialize in "treating women and girls with bleeding disorders."
According to the complaint, the level of care Horowitz has received from the Oregon clinic has "dramatically increased" her quality of life, as her "annual bleed rate has decreased" and her "condition is currently well-controlled."
"The availability of telehealth makes it possible for Shellye to be cared for by the most qualified specialists for her rare condition while remaining at her distant home," the complaint said. "Increasingly, her Oregon specialists are unable or unwilling to speak with her over the phone due to concerns about California’s telehealth licensure rule. If she is required to travel to Oregon every time she needs to consult with her specialists, she would have to decide between disrupting her life, missing multiple days of work, and spending considerable time and money to maintain her life-changing care or return to the days when she was not properly cared for."
According to the complaint, McBride is a nationally recognized cancer specialist practicing at one of the top specialty cancer hospitals in New York and the nation. According to the complaint, McBride frequently consults with patients remotely, to discuss treatment plans and to determine if they should travel to New York to see him in person.
"With the use of telehealth, it is no longer necessary for patients to have to incur costly and time-consuming travel to consult with specialists. Patients can forward their medical records for specialized expert review, and upon meeting for a consultation using telehealth, they can easily discuss treatment options," the lawsuit said.
However, the plaintiffs said, "... without the ability to consult before traveling, patients cannot know whether the specialist will be able to treat them or offer novel clinical trials particular to their condition. As a result, some patients are unable, or unwilling, to travel and therefore never receive treatment from or learn about trials led by specialists like Dr. McBride."
According to the complaint, McBride believes California's licensing rules place him at an unconstitutional risk of prosecution for providing care remotely to California patients.
The plaintiffs are seeking court orders declaring California's telehealth licensing restrictions unconstitutional and blocking the state from enforcing them against out-of-state doctors.
The plaintiffs are represented by attorneys Trotter and Haley S. Dutch, of the Pacific Legal Foundation, of Sacramento and Arlington, Virginia.
The Pacific Legal Foundation is a nonprofit legal organization specializing in litigation over allegations of constitutional overreach and abuse by American governments at all levels. The PLF has won 18 of 20 cases it has argued before the U.S. Supreme Court.