Teladoc's antitrust lawsuit against the Texas Medical Board (TMB) is still in its early stages, but a brief filed recently in the 5th Circuit Court of Appeals shows many support the company's legal efforts, including the U.S. Federal Trade Commission and competitors.

But the drama playing out with Texas telehealth vendor vs. the perhaps the more powerful Texas Medical Board is heating up, and there's a good deal on the line. The storyline continues to grow more dramatic, from its origins dating back to April 2015.

It was then that Teladoc sued the Texas Medical Board in state court, as MobiHealth News reports, "alleging that because the board was made up of practicing doctors with a financial interest in squelching telemedicine, the board's passing of anti-telemedicine legislation constituted a violation of antitrust laws."

Not to be outdone, the TMB filed a motion asking for the suit to be dismissed on the grounds that there is state supervision of the medical board, which would make it a state agency under law and immune to lawsuits. The judge denied the motion, the medical board appealed, and now the 5th Circuit will rule not on the case, but whether to dismiss it.

Earlier this month, too, several other briefs were filed with the 5th Circuit — with one coming from the FTC in support of Teladoc. The FTC argues the appeal was "inappropriate and the circuit court doesn't have jurisdiction over the ruling," but the brief goes further:

"If this Court does find that it has jurisdiction, however, it should hold that the state action doctrine does not shield the TMB's rules from federal antitrust scrutiny because the TMB did not carry its burden to show active supervision. There is no evidence that any disinterested state official reviewed the TMB rules at issue to determine whether they promote state regulatory policy rather than TMB doctors' private interests in excluding telehealth — and its lower prices — from the Texas market."

The brief then was signed by seven federally employed lawyers.

The Texas Tribune reports that the FTC asked the 5thCircuit Court not to give up on the case, arguing that the medical board's rule mandating an in-person meeting prior to any telemedicine consultation was motivated out of concern for "private interests" rather than safety. Teladoc says the 19-member medical board initiated the rule to limit competition.

So far, no briefs have been filed in support of TMB, while others support Teladoc, including competitor MDLive, a group of Texas professors specializing in health law and health policy, and some Teladoc customers.

Teladoc operates its suite of services in every state but Texas and Arkansas, which have both passed rules limiting how telemedicine is delivered. The company sells subscriptions to health plans and employers, and allows patients to see a board-certified physician using telehealth for acute ailments, behavioral health, dermatology and sexually transmitted infections.

The case obviously threatened Teladoc's business since the company virtually connects remote patients to Texas-licensed doctors, some of whom are based out-of-state. The company says its physicians consult patients over the phone for routine medical issues, and patients can upload photos or other information describing their symptoms and medical history.

If the case is tossed, Teladoc wouldn't be able to conduct business in Texas, which it contends is anticompetitive. The Texas Medical Board says the problem with Teladoc is safety. With telephonic consultations, there may be no observation or physical examination of the patient, nor laboratory or other diagnostic work that the physician can use to determine a diagnosis and course of treatment, which can lead to errors.

"Telemedicine offers significant potential benefits to patients, including expanded access to medical care," the Litigation Center of the AMA and State Medical Societies said in a brief. "At the same time, telemedicine is inappropriate for certain medical conditions, and it carries risks. Because a physician treating a patient remotely may be called upon to act with limited information, the quality of care may suffer, and a potential exists for fraud and abuse.

"Given the complex and evolving state of telemedicine," the brief said, "Texas' balance of reliance on the expert board to act in the first instance, with state supervision as needed, is entirely appropriate — and should not be subject to second-guessing under the federal antitrust laws.

"There can be real, material risk of harm from treatment without any physical examination. That risk is amplified where, as in this complaint, treatment is provided to a patient who cannot even communicate his or her own condition but must rely solely on characterizations by a layperson."

Given the rise in telehealth practices, the action again Teladoc may prove to be quite consequential indeed.