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Judge dismisses case challenging online eye exam ban

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A lawsuit by Chicago-based telehealth company Opternative seeking to allow online eye exams in South Carolina has been dismissed, with a judge ruling the company lacked standing.

Judge DeAndrea Benjamin of the Fifth Judicial Circuit in Columbia ruled last week that the company had not suffered an injury sufficient to bring the suit.

Opternative asked the court to find S.C.’s 2016 ban on online eye exams unconstitutional. Robert McNamara and Joshua Windham, attorneys at the Institute for Justice, argued on Opternative’s behalf during the hearing last October.

“This law was designed to put Opternative out of business in South Carolina, and it worked,” Windham said in a news release. “That is an injury, and that means South Carolina courts have to hear Opternative’s constitutional arguments.”

McNamara told the Columbia Regional Business Report he believes the judge’s ruling was incorrect and he plans to file an appeal within the next 30 days.

Then-Gov. Nikki Haley vetoed the bill creating the ban, writing that “it uses health practice mandates to stifle competition for the benefit of a single industry, putting us on the leading edge of protectionism, not innovation.” The S.C. Legislature overrode the veto.

Opternative, which operates in 39 states but has also seen its online exams banned in Georgia and Indiana, sued, contending that the law curtailed the right of patients and doctors to manage care.

“We plan to continue this fight until we vindicate the basic principle that states cannot use public power to protect private businesses,” McNamara said in a statement. “Patients and doctors, not state legislators, should be managing their own healthcare decisions, and we are determined to put that power back in their hands.”

Opternative says its technology is not a replacement for a comprehensive eye exam but rather a stopgap measure for people who need prescriptions renewed frequently. Lawmakers and optometrists counter that the technology is potentially dangerous.

The American Optometric Association says online vision tests do not include a comprehensive eye exam and do not take into account a patient’s medical history. The organization also said patients might think online vision tests provide more care than is the case.


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