Opternative Inc vs South Carolina Board of Medical Examiners et al (Opinion No. 28310, Sup. Ct. SC. Decided Jan 21, 2016) is a case with a fact pattern near and dear to the hearts and pocketbooks of orthodontists. Opternative developed an eye test by which people can, by using a computer or a smartphone, perform an eye test on themselves, determine a refractive error in their eyesight, and construct a prescription for corrective lenses. The test is Food and Drug Administration–approved, and the technology is available in 35 states.
When a prospective patient wants to take the self-directed eye exam, they must first access the company’s website and complete a medical history form, which includes a place to supply information about any previously received lens prescriptions. One then takes an eye chart reading exam and answers the questions contained in a vision test. The test is free, but to take advantage of the technology, one must be between the ages of 18-55 years, and one must have previously worn corrective lenses. Once the test is completed and paid for, $35.00, the results are sent to an in-state licensed optometrist or ophthalmologist who determines if it is medically appropriate to write a prescription for corrective lenses. If, in their opinion, it was appropriate to write the prescription, they do so; and, within 24 hours, the patient receives their lenses in the mail. Sound familiar?
In 2016, South Carolina enacted a statute, the Eye Care Consumer Protection Law, Act No. 173 of the 2016 S.C. Acts 1372 Section 40-24-20 (A)(B)(C). Subsection C states that “…a prescription for spectacles or contact lenses may not be based solely on the refractive eye error of the human eye or be generated by a kiosk.” In other words, a prescription for glasses or contact lenses could not be generated without a licensed practitioner taking into consideration any medical findings attributed to discovery from a clinical exam and review of the medical history and any refractive errors discovered during an eye examination.
Once the law was enacted, Opternative ceased doing business in South Carolina because practitioners in the state were unwilling to practice their profession remotely using only Opternative’s digital platform. This resulted in Opternative suing the South Carolina Board of Medical Examiners, the state’s licensing authorities, and the state’s Optometric Association, claiming that the statute as written was unconstitutional. The Trial Court dismissed the case on technical grounds, the Appellate Court reversed and told the lower court to retry the case on its merits. The case was then directly appealed to the state’s Supreme Court.
The court began its analysis by noting that when statutes are challenged on due process grounds, a rational basis test is used to determine whether the state has any legitimate interest in controlling the area of law under consideration. Therefore, the first question was whether the act furthered a legitimate government interest. Opternative argued that the law merely served the interests of the medical side by encouraging economic protectionism through significantly limiting their presence in the marketplace. The state argued that its interest lies in “…protecting public health by ensuring a patient’s corrective lenses are prescribed only after an appropriate in-person eye exam.” For example, the medical side argued that when an optometrist conducts a comprehensive exam, one may find evidence of “…glaucoma, cataracts, macular degeneration, binocular vision disorders, and corneal dystrophy. They can also detect diabetes, hypertension, hypercholesterolemia, autoimmune disorders, and other systemic diseases.” Their argument concluded with the admonition that these diseases may go unnoticed if a patient were to merely go to a kiosk and get scanned. In addition, lens fitting problems resulting in eye injury cannot be picked up remotely. Quoting another case, the Supreme Court stated that “The protection of the public health is an object of such vital importance to the welfare of the state that any rational means to that end must be upheld.” (Cit. Omit.)
Deciding that the statute bore a legitimate governmental interest in the protection of the public’s health, the court next turned to whether the statute bears a reasonable relationship to that interest. Opternative argued that one does not need an eye exam every time corrective lenses are prescribed. However, the other side’s expert testimony at trial, which the court accepted and relied on, revealed the following:
“While a comprehensive, in-person eye exam may not always be medically necessary, in practice, most eye doctors conduct such exams before prescribing corrective lenses to detect potential diseases or conditions. Given this standard practice, the General Assembly could reasonably conclude that frequent in-person exams are necessary to protect the public from eye and systemic health issues”.
The court next had to adjudicate an equal protection argument. The court noted that equal protections are met via a rational basis test when the classification bears a reasonable relationship to the legislative purpose sought to be affected, when the members of the class are treated alike under similar circumstances, and when the classification rests on some reasonable basis. Answering the first question, the court noted that those being affected by the statute are those seeking to be allowed to offer prescription lenses without first performing an adequate clinical examination using only an automated application—an act the court already found unpersuasive. Regarding the second prong, the court noted that under the act, all practitioners prescribing corrective lenses would now be held to the same standard of care. As to the third point, the reasonable basis argument, the court noted that Opternative’s argument that the telemedicine act allows some doctors to prescribe some therapies but not others proves disparate treatment; however, the court was unpersuaded. It noted that under the Telemedicine Act No. 210, 2016 S.C. Acts 1502 Section 40-47-37 (Supp. 2025)
“…doctors could treat patients using electronic information technology that sends information “between a licensee in one location and a patient in another location” if the doctors could still “adhere to the same standard of care as in-person medical care.”
The act also established that doctors could not prescribe medication “when an in-person physical examination is necessary for diagnosis.” All in all, the court held once again that the law was not discriminatory.
The court noted that many other areas of medicine would be enhanced by a requirement that in-person examinations are necessary before prescribing a course of treatment or pharmaceutical therapeutics. The court stated, “It is not a requirement of equal protection that all evils of the same genus be eradicated or none at all.” The court next addressed the state of the art of modern medicine. The court was quick to admit that certain medical visits and tasks are amenable to telemedicine practice, such as “…reviewing photographs, videos, or live consultations…” that allow practitioners to visually assess a patient’s condition. Even then, the court pointed out that this usage of technology still requires the health practitioner to directly evaluate the patient’s symptoms, progress, and some clinical needs, interventions, or adjustments; some of these needs can be accomplished by the patient remotely, whereas others require the patient to present themselves to the office.
The court upheld the constitutionality of the statute.
