Academic journal article American Journal of Law & Medicine

Mind the Gap: Antitrust, Health Disparities and Telemedicine

Academic journal article American Journal of Law & Medicine

Mind the Gap: Antitrust, Health Disparities and Telemedicine

Article excerpt


Health inequalities in the United States have been continuously escalating. Numbers speak: In a land of dreams and opportunity, the difference in life expectancy between the wealthy and the poor exceeds close 10 to 15 years.1 Healthcare disparities have become a key concern for both leaders and policymakers. In the 2001 ‘Across the Chasm: Six Aims for Changing the Health Care System,’ the Institute of Medicine identified equity in healthcare as one of the main goals of health care systems aiming to improve their performance.2 Since 2000, the Department of Health and Human Services' Healthy People initiative has also characterized the elimination of health disparities as a central goal. In Healthy People 2020, the stated goal is to “achieve health equity, eliminate disparities, and improve the health of all groups.”3 Considering the high costs of health disparity, this should not come as a surprise. Among others, these include excessive healthcare expenditures, loss of labor productivity and premature deaths.4

Nonetheless, health disparities do not only hurt the economy, but, most importantly, our democracy. This is because a healthy electorate is an essential prerequisite for civic participation in a democratic society. Let us consider, for example, the gap in life expectancy between Blacks and Whites in the United States. Black Americans, on average, “die in higher proportions than [W]hites at all ages before their age of life expectancy.”5 These premature deaths deter them from participating in subsequent elections.6 The effect of early deaths on political disadvantage is cumulative, “increasingly diluting the political voice of Blacks compared with whites.”7 Consequentially, as more Black voters' voices remain unheard, the more the social and economic inequality exacerbates.8

One of the health reforms aiming to eliminate health disparities in the United States, especially in rural and disadvantaged areas, is telemedicine: a technology driven tool for healthcare delivery designed to increase access to healthcare services. This article critiques the theory that an increase in the use of telemedicine would reduce health disparities and improve health outcomes in disadvantaged geographic areas. I raise three crucial concerns. First, although the use of telemedicine may increase access to healthcare services, it may at the same time harm quality of care by unsafely facilitating the exchange of certain health information and also eroding the trust in the doctor–patient relationship. Second, public health research demonstrates that telemedicine is often associated with poor performance for appropriate antibiotic prescribing for certain diseases, such as acute bronchitis compared with in-person physical examination. Third, telemedicine is often used by high income patients, and not the underserved populations that lack access to healthcare services.

Considering the limitations of this novel form of healthcare delivery, I argue that a regulatory intervention is needed to ensure that consumers benefit from this alternative form of diagnosis and treatment. However, some regulatory structures, such as self–regulation, have strengths and competitive weaknesses. Indeed, they may create barriers to the efficient flow of healthcare information and expertise, eliminate competition between healthcare providers and lead to cost increases. In delving into these tradeoffs, this article asks: Can the application of antitrust law in the healthcare sector strike the appropriate balance between the benefits these technology-driven tools bring to society and the need to protect the public safety?

Using the Teladoc antitrust case as an example, this article demonstrates that this question is a complex one. This antitrust dispute concerned a suit brought by Teladoc, a prominent telemedicine company, against the Texas Medical Board over a rule that required a “defined physician-patient relationship” – i. …

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