Equal Protection: Veterinarians Must Physically Examine Animals before Telemedicine Advice, But Doctors Have no such Requirement for Patients

Equal Protection: Veterinarians Must Physically Examine Animals before Telemedicine Advice, But Doctors Have no such Requirement for Patients

Hines v. Quillivan, no. 19-40605  (5th Cir. Dec. 2, 2020).

Reversing and remanding on the dismissal of a First Amendment claim but affirming dismissal of an Equal Protection claim, the Fifth Circuit finds Texas’ prohibition against veterinarians providing telemedicine advice unless they have actually seen the animal in question-even though medical doctors are not bound by that restriction-is supported by rational basis.

This opinion opens with the question presented: “Does a veterinarian have a right to engage in telemedicine for a pet he has not physically examined?

Dr. Ronald Hines (Hines), a licensed veterinarian in Texas, stopped practicing in 2002 due to his age and physical limitations.  Soon thereafter, he began using his website to write articles about pet health, and people around the world began emailing him for advice about their pets.  Hines offered individualized advice over email and phone, and in 2003 added to his website a flat fee for veterinary advice.

Under Texas law, to practice lawfully, the veterinarian must have “sufficient knowledge of the animal,” which is defined as either having recently examined the animal or having visited the “premises on which the animal is kept,”  and a client-patient relationship “may not be established solely by telephone or electronic means.”  Violations of these limitations are criminal offenses.

In 2012, the Texas State Board of Veterinary Medical Examiners found that Hines had violated state law and ordered him to cease providing advice electronically without physically examining the animal.  Hines filed suit in 2013, arguing that Texas’s physical-examination requirement violated his First Amendment, equal-protection, and substantive-due-process rights.  Ultimately all of Hines claims were dismissed at the Fifth Circuit on Rule 12(b)(6) grounds.

As the Circuit now puts it “Some things have changed since our 2015 opinion.” In 2017, Texas revised its laws, allowing medical doctors–but not veterinarians–to engage in some forms of telemedicine, removing the need for face-to-face consultations to establish a physician-patient relationship before engaging in any telemedical services.  And in 2018, the Supreme Court decided National Institute of Family & Life Advocates v. Becerra (NIFLA), 138 S. Ct. 2361 (2018), which overruled the Ninth Circuit and found that a state requirement that pregnancy counseling centers must advise clients about the availability of abortion services could not be justified as regulations of “professional speech.”

Hines filed the present suit in October 2, 2018, citing the change in Texas’s telemedicine law to support  a new equal-protection claim and asserting that because NIFLA abrogated the professional-speech doctrine, his First Amendment claims were newly validated. The district court again dismissed.

First Amendment:  Unless NIFLA abrogated Hines’ earlier defeat, his new First Amendment claims were foreclosed.  The  “mode of analysis” test would govern that determination: under the rule of orderliness, “one panel may not overrule [a prior] decision, right or wrong” unless there is an intervening change of authority. Therefore, “Fifth Circuit precedent is implicitly overruled if a subsequent Supreme Court opinion establishes a rule of law inconsistent with that precedent.”  The question was whether NIFLA effected such a change.  The Circuit had its own recent precedent (Vizaline) that might shed light: in a case involving regulation of professional speech in the context of surveyors, the Circuit had concluded that “the relevant question is whether” the state’s “licensing requirements regulate only speech, restrict speech only incidentally to their regulation of non-expressive professional conduct, or regulate only non-expressive conduct.”  Based on that decision, the Circuit reversed the denial of Hines’ First Amendment claim and remanded so the district court could make the initial evaluation of whether conduct or speech is being regulated.

Equal Protection:  Hines’ original equal protection claim had been based on differential treatment for veterinarians engaging in telemedicine than those with on-site practices. That claim had failed, with the court seeing a rational basis “to conclude that the quality of care will be higher, and the risk of misdiagnosis and improper treatment lower, if the veterinarian physically examines the animal in question before treating it.” The new claim rested on treating medical doctors differently than veterinarians as to their right to engage in telemedicine.  The State did not challenge Hines’ assertion that he was similarly situated to medical doctors for equal protection purposes, requiring the court to analyze the rational basis for the medical-veterinarian distinction.  The lower court had found several reasons for the differential treatment:   “[H]umans ordinarily can communicate about their own symptoms with a doctor via electronic means, whereas animals cannot.”  Additionally, “humans typically understand human physiology better than animal physiology.”  Hines rejected these reasons by identifying inconsistencies such as the fact that some humans, like infants, are also unable to speak.

But as the Circuit noted, a classification may be underinclusive or overinclusive and yet survive rational-basis review.  “When a legislature has a choice of means, each rationally related to its legislative purpose, it may constitutionally choose any of them.  Its choice of one does not render the others irrational.”  The majority agreed with the State here that it is rational to distinguish between humans and animals based on the species’ differing capabilities, and affirmed dismissal of he equal protection claim.

DISSENT: Judge Jennifer Elrod disagreed in part, finding that Hines had presented at least enough evidence on the equal protection issue to survive a motion to dismiss:

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. As Dr. Hines argues, “[i]t simply is not rational to allow telemedicine without a physical examination for babies but deny the same form of telemedicine for puppies on the ground that puppies cannot speak.”

As she put it in closing, “although the rational basis test is deferential, it does not require us to accept ‘nonsensical explanations for regulation.'”