Mind the Gap: Antitrust,Health Disparities and Telemedicine

A. The Value of Telemedicine: Can It Improve Health Outcomes and Increase Access?

Telemedicine in the United States has grown rapidly in the last few years. However, telemedicine is not a new thing. ¹⁵ Although most patients always received and still receive medical treatment through in person examination, medical treatment has always been provided over distance, that is with the patient and the healthcare professional in different places. ¹⁶ Recent advancements, though, in information technology services have extended the possibilities of remote consultation, diagnosis, and treatment. ¹⁷ The term “telemedicine” has been adopted to describe the new forms of healthcare delivery these new technologies and services have brought.

In that sense, the term “telemedicine” is a broadly defined one. It means “healing at a distance.” ¹⁸ Although there are more narrow definitions for this notion, telemedicine means “the use of technology to deliver health care services and information at a distance in order to improve access, quality, and cost.” ¹⁹ The American Telemedicine Association has also defined telemedicine as, “the remote delivery of health care services and clinical information using telecommunications technology.” ²⁰ This includes a wide range of clinical services “using internet, wireless, satellite and telephone media.” ²¹

This broader term is further classified on the basis of 1) the type of interaction that actually takes place between the patient and the medical professional and 2) the type of information being transmitted. ²² The interaction can be either prerecorded or “real time.” ²³ When it is prerecorded, the relevant information is saved in some format, before being sent for further interpretation and examination by the medical expert. ²⁴ On the opposite, when interactions are “real time” there is no time distance between the information being collected, sent, and assessed by the expert. ²⁵ A videoconference, for example, is a common type of “real time interaction.” The type of information transmitted between the two sites can also take many forms. These include “data and text, audio, still images and video pictures.” ²⁶

Telemedicine physicians make diagnoses, propose appropriate treatment, and, often prescribe drugs. ²⁷ Importantly, in most cases, there is no established relationship between patients and telemedicine physicians, and the latter often lack access to the patient's electronic medical record. ²⁸ Despite these limitations, the belief that telemedicine can actually improve health outcomes, reduce healthcare costs and limit health inequities by increasing access to healthcare especially for the underserved populations that live in rural and disadvantaged communities is rarely questioned. How can telemedicine achieve these goals?

In principle, telemedicine can increase access to healthcare especially for rural populations that lack access to physicians' services, by substantially decreasing travel distance, travel time, and some appointment delay to care. ²⁹ Telemedicine ensures access to both specialty and primary care irrespective of where the patients live. ³⁰ Considering these essential benefits, health insurers and employers frequently provide telemedicine services as a means of improving access for rural populations that lack access to healthcare resources. ³¹

Telemedicine also ensures access to healthcare services for vulnerable groups, such as inmates in need of behavioral health treatment. While the United States struggles with an overall shortage of mental health specialists, so do prisons, where the demand for mental healthcare services is extremely high. “Of the 2.2 million people currently in prison in the United States, 26% of those in jail and 14% of those in prison met the Bureau of Justice Statistics' threshold for serious psychological distress, compared to just 5% in the general population.” ³² Despite the high demand for mental health services in prisons, doctors in several States are often deterred from treating patients in correctional facilities. ³³ Potential threats to safety, the high transportation costs, and the opportunity cost of not seeing additional patients in hospitals are the main factors that prevent physicians from offering their services to inmates. ³⁴

Obviously, if the people in correctional facilities lack any access to mental health services, not only will their mental condition deteriorate, but also their actual opportunity to integrate later in society as healthy and productive members will diminish. Considering these risks, Texas, for example, since 1994, has adopted a telemedicine program for its correctional facilities. ³⁵ Other states, such as California have also adopted similar programs. ³⁶ The results are positive. “We've found that, in many cases, it's saved institutions from the brink of disaster,” said Dr. Edward Kaftarian, former statewide Chief of Telepsychiatry for California Correctional Health Care Services. ³⁷

Telemedicine can also reduce costs. In principle, telemedicine is expected to reduce healthcare expenditures for employers, insurers, and patients “by substituting cheaper virtual visits (approximately $40 dollars per visit) for more costly visits to emergency departments or physician offices.” ³⁸ By limiting patients' need to travel, telemedicine also substantially decreases patients' time off from work. ³⁹ Telemedicine is also shown to improve quality of care especially for chronic diseases. Effective management of chronic illness necessitates “frequent check-ins by patients for monitoring of symptoms,” medical tests, and “adjustment of medications.” ⁴⁰ Very often such check-ins can be extremely quick. Therefore, “travelling to, and waiting in, a clinic for these check-ins often requires a significant amount of a patient's time.” ⁴¹ For this reason, “chronic illness care,” Professor Mehrotra says, “is suboptimal for many patients.” ⁴² As in many cases, check – ins for symptoms do not require physical examination, telemedicine can improve compliance and management of chronic illnesses by reducing costly and unnecessary in –person visits. ⁴³

But, does telemedicine always deliver its promised gifts? I believe that the answer can neither be a strong yes nor a strong no. To start, the assumption that telemedicine will necessarily improve access, especially for underserved populations should not remain unchallenged. Although telemedicine can potentially increase access, whether it achieves this goal in practice is not clear. ⁴⁴ Telemedicine requires patients to use technologies that they may not be familiar by receiving care in an alternative way. ⁴⁵ Hence, patients that may not belong to a technology–savvy group of consumers may be deterred from using telemedicine.

Additionally, very often telemedicine necessitates patients' participation, since doctors are unable to perform the type of physical examination that they could in the context of an in person visit. ⁴⁶ This means that the elderly, disabled, or those with low health literacy might face substantial difficulties even in accurately expressing their health conditions, symptoms or needs. This issue can become even more complex when patients may have to check their own health conditions, such as using a blood pressure machine as part of their examination. ⁴⁷ This may also prevent some patients from using telemedicine as a means of seeking medical advice and treatment.

Recent studies confirm that telemedicine is not in fact utilized by the populations that need it the most - namely the underserved. Indeed, a national survey has shown that the majority of telemedicine users live in urban areas, have higher incomes and, higher levels of education. ⁴⁸ The study found that “while 11% of Internet users with family incomes of $100,000 or more engaged in telemedicine activities, only 4 % of those in the under $25,000 bracket reported such activities.” ⁴⁹ It further demonstrated that 10% of telemedicine users had college degree and only 2% of them had no high school diploma. ⁵⁰

Furthermore, a recent study conducted by George Washington University Health Workforce Institute also reached similar conclusions. ⁵¹ This study raised the question of whether and to what extent the underserved populations use telehealth and more specifically online video communication as a means of receiving medical advice or treatment. ⁵² The results showed that the use of telemedicine “is most dominant among working age and higher income respondents and those who may have more difficulty leaving the home because of physical and mental limitations.” ⁵³ The study also demonstrated that while the use of telemedicine aims to increase access to healthcare services for rural populations, it is used least by Medicaid beneficiaries, rural populations and those earning less than $25.000 on an annual basis. ⁵⁴ In attempting to identify the reasons why underserved populations do not utilize the benefits telemedicine can offer, the study also looked at the impact of state telehealth policies on the use of telemedicine, assuming that less restrictive state policies may lead to increased utilization. ⁵⁵ Surprisingly, the study did not find a strong correlation between less restrictive policies and increased use of telehealth services. ⁵⁶ Therefore, this study concludes that state efforts alone to limit telehealth barriers may not lead to increased utilization. ⁵⁷ On the other hand, it highlights that the limited use of telemedicine by rural populations mainly relates to the shortage of healthcare providers that offer this service. ⁵⁸ According to this study, only 38% of community health centers, which are the main healthcare providers for rural populations, offer telemedicine services. ⁵⁹ This study also suggests that “offering financial incentives for providers to adopt telehealth” and removing copayments for virtual visits, may increase utilization by underserved, rural populations. ⁶⁰

Similar conclusions can be reached if we take into consideration a 2017 study that attempted to interpret trends in the recent use of telemedicine for mental healthcare, also known as “telemental health.” ⁶¹ The study showed that the use of telemedicine in this field could increase access to mental healthcare especially in rural areas where the shortages of mental health specialists deprives patients of the opportunity to receive mental care. ⁶² In addition, it could also increase quality. Indeed, as numerous randomized trials show, treating patients with poor mental health conditions via telemedicine can be even superior to in-person care. ⁶³

Nonetheless, again, as this study demonstrates, theory does not always meet reality. The study found that although telemedicine has been promoted as a means of extending access to mental care to patients that are unable to receive it in rural communities, unfortunately, only a small percentage of rural telemental health recipients solely receive mental health services via telemedicine. ⁶⁴ This in fact indicates that telemental health seems to complement in –person care. ⁶⁵ While this may improve the mental conditions of the patients that already have access to mental healthcare services, telemental health use does not seem to increase “the number of rural beneficiaries who receive any mental healthcare specialty care.” ⁶⁶ Because the main way through which people acquire access to tele-psychiatry is via an established local mental health provider, many people that do not receive any in person care are unable to access telemental care. ⁶⁷ In this light, the study concludes that the question of whether, and if so, how, the expansion of telemental health improves access to specialty mental healthcare remains unclear. ⁶⁸

Furthermore, the assumption that telemedicine may decrease healthcare costs can also be questioned. Direct-to-consumer telehealth may increase access by making care more convenient, but at the same time, it may lead to an in increase in health care expenditures. ⁶⁹ This is because patients often use telemedicine services in addition to in-person visits, not as a substitute. ⁷⁰ The convenience of direct-to-consumer telehealth or else the “Uber–ization of health care” ⁷¹ may drive many patients to seek care in cases where they would not have sought care if telehealth had not been available. ⁷² Instead of reducing costs by substitution, direct–to-consumer telehealth may even increase healthcare expenses as a result of increased utilization. ⁷³

But, the notion that access to telemedicine will also improve health outcomes can also be challenged. Telemedicine expert, Ateev Mehrotra, who has substantially examined whether and to what extent the use of telemedicine improves health outcomes, is skeptical. Mehrotra says, “While I think that there's a lot of evidence that telemedicine can be equal quality in many circumstances, I think people have expanded that too far, and at least in some work that we have ongoing we've documented that in direct to consumer telemedicine there are serious quality gaps in terms of antibiotic prescribing. There are circumstances where it isn't working, so we need to identify what are those circumstances.” ⁷⁴

A study that compares the quality of care at Teladoc, a large direct to consumer telemedicine company, with the level of care provided at physicians' offices and compared access to care for Teladoc users and non-users reveals that telemedicine can in certain cases lead to lower quality of care. ⁷⁵ For example, this study indicated “poorer performance on appropriate antibiotic prescribing for acute bronchitis compared with physician offices.” ⁷⁶ More specifically, Teladoc had higher rates of antibiotic prescribing for acute bronchitis. ⁷⁷ Considering, however, that bronchitis “is classified as diagnosis for which antibiotics are never appropriate,” it can be argued that to the extent telemedicine leads to higher rates of antibiotic prescribing for types of diagnosis, such as bronchitis, for which the medical profession insists that it is not appropriate, ⁷⁸ telemedicine can, in certain cases, even harm quality of care. Absent face to face contact, research shows that doctors tend to overprescribe medicines. ⁷⁹ However, prescribing medicines in cases where this is inappropriate may not only increase healthcare costs without improving quality, but, more importantly, it may lead to increased antibiotic resistance. ⁸⁰

The risk of overprescribing is not the only reason why telemedicine may not improve quality. Telephone only diagnosis can actually decrease quality of care by harming the doctor–patient relationship, an essential dimension of healthcare quality. This can be exactly the case especially when telemedicine is used for improving access to care to underserved populations or the minorities living in rural areas that lack any access to healthcare services. ⁸¹ Telemedicine may harm the therapeutic relationship in several ways. Some researchers have expressed the concern that “telemedicine may be mechanistic and interfere with the development of a personal physician–patient relationship” or that providers may lack the ability to develop empathy for patients that meet behind a screen. ⁸² Some also have expressed the concern that by “dehumanizing, dissocializing and depersonalizing” human contact telemedicine may damage the provider–patient relationship. ⁸³ Others have taken the view that “the absence of laying on the hands” deprives doctors and their patients of the opportunity to connect both emotionally and psychologically or that the “lack of access to tactile or olfactory information” weakens physicians' ability to make a diagnosis. ⁸⁴

A study that examined how the use of telemedicine in rural and underserved populations in Hawai and Alaska affects the doctor patient relationship concluded that telemedicine may inhibit effective communication between doctors and patients. ⁸⁵ Although study participants both in Alaska and Hawai acknowledged the benefit of using telemedicine technology “to bridge the physical distance between primary care providers and rural patients” ⁸⁶ and reduce costs, ⁸⁷ they emphasized that something was missing. Patients felt that they could not easily develop a personal connection with their telemedicine physician ⁸⁸ and that technology cannot sufficiently address the “social distances” between patients and providers, “especially in the presence of differences in cultures, languages and ways of interpreting and evaluating concepts of health and wellness.” ⁸⁹ In both the Alaska and Hawaii groups, participants also mentioned that indigenous people were being treated “in a condescending manner,” by providers that did not belong to their communities. ⁹⁰ Some participants specifically pointed to the language barriers that affected the consultation process and the difficulties they faced in translating medical terms into clear messages. ⁹¹ Other patients and providers articulated some discomfort about the lack of any “physical contact and hands-on interaction” during the consultation process. ⁹² Providers also admitted that they often cannot trust a diagnosis that is made remotely and does not involve physical contact. ⁹³ Considering the potential risks to healthcare quality such barriers may create, both patients and providers proposed that (a) The initial patient–provider interaction should be face-to-face; and (b) patients should see the same provider on follow-up visits. ⁹⁴ Such improvements could nurture the human element in the doctor – patient relationship and the continuity in care, essential dimensions of healthcare quality. ⁹⁵

A different study suggests that the barriers to effective communication between the doctor and the patient may be surpassed if a doctor, nurse, or another healthcare professional was present during the consultation process. ⁹⁶ A third party, this study claims, can compensate for the lack of human contact and communication between the doctor and the patient, for example by consoling patients through difficult consultations (e.g. failure of chemotherapy treatment). ⁹⁷ They can also help patients better comprehend medical terms and therefore further trust the medical process and the quality of care they receive. ⁹⁸

In light of the above concerns, some regulatory intervention in the use of telemedicine deems necessary. Such intervention may safeguard that telemedicine is used in a way that takes into consideration the limits of this technology driven form of medical treatment and enhances the human interaction between doctors and patients. In case telemedicine applied in a way that completely disregards its limits, patients would distrust this form of healthcare delivery. As a result, the benefits of this revolutionary form of treatment would not reach their full potential. Nonetheless, some forms of regulatory intervention, such as self–regulation aiming to protect patients from low-quality medical treatment, ⁹⁹ may inevitably catch the attention of the antitrust enforcers. This is because while medical professionals generally consider that health outcomes are improved through the attributes of professionalism, such as altruism, respect, and the notion of trust in the doctor–patient relationship, antitrust authorities mainly believe that vigorous competition and not professionalism ensure health improvements. ¹⁰⁰ Therefore, any form of regulatory intervention that may limit healthcare providers' freedom to offer their services through telemedicine, may violate one of the main assumptions of antitrust law, which is that quality is improved only to the extent competition is enhanced and choices are maximized. These opposing views between medical providers and antitrust enforcers about quality of care may inevitably lead to totally different directions on how care is improved, with both antitrust enforcers and medical professionals supporting their positions in the name of quality. ¹⁰¹

In light of the discussion above, the last part of this article raises an important question: Can the application of antitrust law in the healthcare services sector strike the appropriate balance between telemedicine benefits and the need to protect the public's safety and health? Before delving into this question, a brief introduction to the Teladoc antitrust case, ¹⁰² follows.

B. The Need for Regulatory Intervention: How did the Court miss the point in the Teladoc case?

The Teladoc case concerned the antitrust proceedings brought by Teladoc against the Medical Board of Texas over a rule ¹⁰³ that prohibited “prescription of any dangerous drug or controlled substance without first establishing a defined physician–patient relationship.” This, essentially, included a physical examination that should be performed “either by face-to-face visit or in-person evaluation elsewhere defined as requiring the provider and patient to be in the same physical location or medical site.” ¹⁰⁴ In brief, the plaintiffs argued that the rule under scrutiny violated the antitrust principles by limiting price competition, access to healthcare and restricting the overall supply of healthcare services. ¹⁰⁵

The Board attempted to justify the rule by raising a public safety concern. By taking the view that all diseases cannot effectively be treated through virtual examination and that absent any form of regulatory intervention, the use of telemedicine may harm, instead of improving, health outcomes, the Board essentially alleged that its challenged rule did nothing more than protect the public from unsafe forms of medical treatment. ¹⁰⁶

In substantiating its claim, the Texas Medical Board cited affidavit testimonies from medical professionals explaining the limitations and weaknesses of a telephone–only diagnosis. ¹⁰⁷ These testimonies, the Board claimed, demonstrated that in certain cases remote diagnosis may lead to lower quality of care. ¹⁰⁸ More than that, Teladoc's model, the Board claimed, may harm quality of care by contributing to the fragmentation of healthcare, and by “leading to misdiagnosis and higher rates of follow-up care-findings.”

The Board also questioned Teladoc's argument that telemedicine improves access to patients, who lack access to healthcare services. ¹⁰⁹ The Board insisted that telemedicine users are higher income patients that have fewer access needs “than people living in areas characterized by shortage of primary care or socio-economic disadvantage.” ¹¹⁰ Therefore, the Board underlined, “further research is needed to understand whether Teladoc might be improving access for patients with lower income and those in rural areas.” ¹¹¹

The Court was not sympathetic to the Medical Board's quality concerns. Taking the view that Teladoc successfully presented significant evidence that questioned the Board's argument that its regulation aimed to secure quality, the Court rejected the Board's safety concerns. In reaching this conclusion, the Court particularly considered that the Medical Board attempted to prove its quality claim by submitting anecdotal reports and not “statistically reliable evidentiary studies.” ¹¹² The Court also took the view that the scientific evidence submitted by the Medical Board, were rebutted by plaintiff's expert testimonies and affidavits. ¹¹³ Highlighting that Teladoc's business model led to increased supply of physician services and lower healthcare costs ¹¹⁴ it concluded that the Medical Board's challenged rule harmed competition and consumers.

The Board also claimed that according to the Supreme Court's ruling in National Society of Professional Engineers v. United States, ¹¹⁵ ‘‘Certain practices by members of a learned profession might survive scrutiny under the rule of reason even though they would be viewed as a violation of the Sherman Act in another context.’’ ¹¹⁶ The Court also disregarded this claim. The Supreme Court has not embraced the idea that the promotion of public safety and health can justify a violation of antitrust law, and that an alternative approach would amount to nothing less than a “frontal assault to the Sherman Act” the Court easily rejected this argument. ¹¹⁷

As a result, the Board appealed. However, the Board dropped the appeal due to the influx of amicus curie briefs that were filed with the Court, most of which supported Teladoc's position. ¹¹⁸ One significant brief was submitted by the Federal Trade Commission (The “FTC”) and the Department of Justice (the “Agencies”). ¹¹⁹ In this brief, the Agencies asked the Court to ignore the Board's appeal because the Court did not have jurisdiction and the rule should be thrown out. ¹²⁰

In spite of this, the American Medical Association and the Texas Medical Association (the “Associations”) jointly filed a brief in support of Board's appeal. ¹²¹ Their goal was to inform the Court about the current state of telemedicine in healthcare and explain why public safety would be harmed if telemedicine use was left to market forces.

The Associations did not question whether telemedicine could improve patients' welfare by increasing access to healthcare services. ¹²² Instead, they highlighted that telemedicine “is inappropriate for certain medical conditions and it carries risks.” ¹²³ They illustrated that a physician treating a patient solely on the basis of a remote diagnosis “may be called upon to act with limited information.” ¹²⁴ This could not only lead to lower quality of care, but it could also increase the opportunity for fraud and abuse. ¹²⁵ Absent any form of physical examination, they claimed, “Treating physicians risk misdiagnosing or mistreating patients especially through over prescription of antibiotics and other medications.” ¹²⁶

In substantiating their medical concerns, the Associations submitted studies indicating that in cases where physicians lacked any physical contact with their patients, “they may either use a conservative approach or propose the use of antibiotics in cases where the benefit of antibiotics therapy is actually unclear.” ¹²⁷ They emphasized that by identifying both benefits and risks, medical associations and state medical boards across the United States, could work in tandem to determine how increasing the use of technology driven tools as a means of improving health outcomes may “best serve patients and the public.” ¹²⁸ By relying on research indicating that allowing the prescription of dangerous drugs without requiring physical examination by any medical professional may harm quality of care, some regulation aiming to protect public health may be necessary. ¹²⁹ Such regulation, they held, is precisely what the Texas Medical Board undertook with the rules that Teladoc challenged. ¹³⁰ To the Board, since the challenged telemedicine regulation was promulgated to fulfill the Medical Board's statutory duty to protect public safety, its actions should not be subjected “to plenary review, by non-physicians, under federal antitrust laws.” ¹³¹ In other words, the Board alleged that the pursuit of antitrust goals by the United States should not compromise the pursuit of public safety and health. As the Board dropped the appeal, unfortunately, their arguments remained unexamined.

But, both the Medical Board and the Associations could have tried to rebut Teladoc's claims by raising some additional safety concerns. For instance, in line with the research findings the previous section discussed, they could have challenged Teladoc's argument that telemedicine leads to lower costs by raising the claim that although the cost of a virtual visit may be lower than an in person visit, telemedicine, may increase healthcare costs as it leads to overutilization of healthcare services and overprescribing. ¹³²

They also could have raised the claim that if telemedicine was left to market forces, the human element in the doctor would be lost and patient relationship could be harmed. For example, research shows that doctors may have difficulty in developing empathy when they consult patients that they first meet behind a screen, or that telemedicine may harm the continuity of care. Doctors have also expressed the concern that the lack of physical contact “may compromise their ability to make the diagnosis” or that they tend to trust less a diagnosis that does not involve any physical examination. ¹³³ Arguably, such risks would be reduced if the doctor examined the patient in-person before she offered her medical advice behind the screen. In that sense, the challenged regulation reduced the risk of a misdiagnosis and protected the therapeutic relationship. How would the antitrust enforcers and the courts respond to these quality concerns? Does the current antitrust framework allow the antitrust enforcers and the courts to take into account healthcare quality claims?

To answer these questions, we must first examine National Society of Professional Engineers v. United States. ¹³⁴ This antitrust case centered around the Professional Engineers' code of ethics, which prevented “its members from submitting competitive bids for engineering services.” ¹³⁵ In Sherman Act's parlance, that was an illegal restraint of trade. ¹³⁶ The defendant expressed a different view. Implying that competition does not always improve consumer welfare, the defendant claimed that its code of ethics served a public safety purpose. It minimized the risk “that competition would produce inferior engineering work endangering the public safety.” ¹³⁷ The District Court rejected this justification without even delving into the question of whether competition had actually diminished quality or public safety. ¹³⁸ To the Court, this inquiry was neither useful nor necessary. ¹³⁹ Taking the view that “the ban clearly impeded the ordinary give and take of the market place and operated on its face (as) tampering with the price structure of engineering fee,” ¹⁴⁰ the District Court easily dismissed the defendant's public safety claim. ¹⁴¹ The Appellate Court and the Supreme Court were unwilling to challenge the lower court's wisdom. In its famous ruling, the Supreme Court underlined that “the Sherman Act reflects a legislative judgment that, ultimately, competition will produce not only lower prices but also better goods and services.” ¹⁴² Therefore, “the statutory policy precludes inquiry into the question of whether competition is good or bad.” ¹⁴³ In this light, the Court clarified that any procompetitive justification that reflects the belief “that competition itself is unreasonable” cannot be assessed under a rule of reason analysis. ¹⁴⁴ Adopting a different approach, the Court explained, it would undoubtedly create the “sea of doubt.” ¹⁴⁵

A similar approach was adopted by the Supreme Court in Indiana Federation of Dentists. ¹⁴⁶ In this case, the Supreme Court examined whether the FTC correctly assessed that “a conspiracy among dentists to refuse to submit x-rays to dental insurers for use in benefits determinations' constituted an antitrust violation.” In defending its strategy, the Federation of Dentists alleged that its ethical policy “was reasonable because the provision of x-rays might lead the insurers to make inaccurate determinations of the proper level of care,” and thus injure the health of the insured patients. ¹⁴⁷ Citing the National Society of Professional Engineers, the Court held that “claiming that an unrestrained market in which consumers are given access to the information they believe to be relevant to their choices, will lead them to make unwise and even dangerous choices amounts to nothing less than a frontal assault on the basic policy of the Sherman Act.” ¹⁴⁸

In North Carolina Teeth Whitening, ¹⁴⁹ a case which mainly concerned the expelling strategy the North Carolina State Board of Dental Examiners (the “Board”) employed in order to deter non-dentists from offering teeth whitening services in North Carolina, the antitrust enforcers adopted a similar approach. ¹⁵⁰ In defending its strategy, the Board first claimed that its activity was subject to the state action doctrine. By submitting four anecdotal reports of harm, the Board also claimed that non-dentists providing teeth whitening services creates risks to public safety and health. ¹⁵¹ Therefore, their strategy was necessary for the protection of public health.

The FTC was not convinced. Recalling the Professional Engineers, the FTC, noted that “a public safety defense is extraneous to an analysis of competitive effects.” ¹⁵² The Court of Appeals fully aligned with this position. Nonetheless, Judge Keenan, who wrote separately, noted that the record confirmed the Board's core quality claim that “there is a safety risk inherent in allowing certain individuals who are not licensed dentists to perform teeth whitening services.” ¹⁵³ Considering, though, that only North Carolina “is entitled to make the legislative judgment that the benefits of deterring non-dentists from performing dental services outweigh the harm to competition, and not a private consortium,”Judge Keenan joined the majority opinion. ¹⁵⁴ In other words, although Judge Keenan acknowledged that in this specific case, probably less competition may bring quality improvements, she also acknowledged that such claims cannot justify an anticompetitive strategy employed by private market players.

What does the courts' and FTC's approach in these cases reveal? To what extent do they allow public safety concerns to enter the antitrust analysis? Arguably, the FTC and the courts examine Medical Board's quality claims. Nonetheless, when they have to assess defendants' argument that in a specific case less competition might be necessary for the protection of healthcare quality, their main point is that “antitrust knows better.” Therefore, when they are asked to examine whether a restriction of competition is necessary for the protection of healthcare quality, their main response is that the notion that in a free market where consumers have choices and adequate information, they may make choices that harm their welfare, amounts to a “frontal assault to the Sherman Act.” By remaining faithful to their view that that the more the healthcare providers, the better the outcomes, and that the more intensely these providers compete, the more quality will be improved, the antitrust enforcers and the courts miss some crucial points.

To start with, by insisting that the goal of public safety cannot be balanced against harm to competition, the courts may disregard the medical component of quality. In examining, for example, the Associations' claims, if the antitrust enforcers rely on the notion that free markets ensure quality and therefore any restriction to competition cannot be justified on the basis of public safety concerns, they may run the risk of underestimating medical research indicating that although telemedicine may improve health outcomes, absent any form of regulatory intervention, it may even harm quality of care either by leading to overutilization of care and overprescribing or by harming the notion of trust in the doctor – patient relationship, essential dimension of healthcare quality. Indeed, the notion of trust is crucial in the case of medical treatment, where the stakes are as dear as life itself. ¹⁵⁵ Patients that trust their physicians are more likely to seek care in a timely manner, share sensitive information and conform to their medical advice. ¹⁵⁶ All these of course are important determinants in health outcomes. However, as the antitrust enforcers examined the Associations' quality claims through the lens that risks to healthcare quality and public safety cannot surpass harm to competition, any quality justification claiming that a specific competitive restraint imposed by a self–regulation is necessary for the protection of healthcare quality, would be simply disregarded.

In addition, by taking the view that competition is the right remedy for quality improvements, these entities may disregard that unregulated healthcare markets are characterized by negative externalities and that the effects of low-quality care fall beyond those who receive medical treatment. As physicians stressed in Teladoc, “Repercussions of poor care are felt from emergency rooms and inner-city clinics to schools and the workplace – not to mention on government agencies that may themselves have to pay for the bad outcomes”. ¹⁵⁷

This has important implications. First, if telemedicine is left to market forces it may harm the safety not only of the people that receive it, but the safety of the society as a whole. Second, that to the extent the recipients of low-quality virtual diagnosis and treatment are the lower-income citizens that live in rural and isolated areas that lack access to adequate healthcare resources, health disparities between different social groups would increase. This is because the rural populations would receive lower quality care than the urban populations that have access to alternative forms of treatment.

Clarifying, I am not arguing that the use of telemedicine fails to improve health outcomes or that public policies should discourage virtual forms of diagnosis or treatment. I only claim that when the antitrust enforcers and the courts assess the anticompetitive effects of self-regulation adopted by medical boards claiming that some competitive restrictions are necessary for the protection of healthcare quality, the antitrust enforcers should not shut their ears to physicians' medical concerns. Instead, they should assess their healthcare quality justifications in a way that is in line with the medical research indicating that telemedicine may improve care in some cases but harm the quality of care in others. Such an approach would allow them not only to integrate the medical component of healthcare quality into their competition assessment, but it would also ensure that they do not apply competition law in a way that reflects the notion that the pursuit of antitrust goals necessarily outweigh the pursuit of health policy goals.

To fulfill these objectives, they should balance the potential harm to competition, choice, or innovation against the protection of public safety and health. They could achieve this goal by widening the notion of healthcare quality when they apply competition law to healthcare. More specifically, they should adopt a definition that embraces the notion that quality in healthcare does not only encompass the goals of choice and competition, but it also encompasses other non–economic objectives such as effectiveness, safety, and the notion of trust in the therapeutic relationship. Such a definition would actually be in line with the concept of quality introduced by Avedis Donabedian, the father of research on healthcare quality. Donabedian conceives quality as a multidimensional concept whose main attributes are effectiveness, efficacy, efficiency, acceptability, optimality, equity, legitimacy. ¹⁵⁸ To Donabedian, these quality dimensions, when measured, reflect healthcare quality's magnitude. ¹⁵⁹ Other major key players in the field of healthcare, have also recognized the multidimensional nature of the healthcare quality notion. The Institute of Medicine, for instance, sees quality as a multidimensional concept embodying the notions of effectiveness, efficiency, safety, equity, and timelessness. ¹⁶⁰ In an analogous way, the OECD in its Health Care Quality Indicator (“HCQI”) Project ¹⁶¹ has also recognized the notion's multiple facets. These are: effectiveness, safety, responsiveness, accessibility, equity and efficiency. ¹⁶²

Adopting a wider notion of healthcare quality would allow the FTC and the courts to create an analytical framework under which conflicting goals between antitrust and medicine could in fact be balanced. ¹⁶³ This is because if the antitrust enforcers adopted a more holistic approach when they examine how a specific competitive restraint may impact healthcare quality, they would be able to balance different components of quality against harm to competition. They would be able, for example, to balance safety and effectiveness versus choice and competition, and acceptability and trust versus choice and competition. ¹⁶⁴ This approach would not only ensure that antitrust enforcers apply antitrust law in a way that is in line with medical research, noting that the use of technology driven tools in healthcare may create risks to healthcare quality under certain conditions. More than that, it would ensure that antitrust enforcers do not apply antitrust law in a way that may contribute to the health inequalities between different social groups. For example, the type of self–regulation that was adopted by the Texas Medical Board aimed to protect patients from unregulated harmful choices. However, if antitrust enforcers applied antitrust law in a way that reflects the notion that the anticompetitive effects of a self–regulation aiming to protect quality, cannot be outweighed by public safety considerations, the people that lack alternatives, or else the rural populations, may end up receiving lower level of care than the urban populations that do not lack alternatives. In this light, it may be argued that the health disparity between different social groups may be increased. As explained, health inequality hurts not only our economy but also our democracy. This is an additional cost that antitrust enforcers may also consider when they apply competition law in the healthcare services sector.