Opternative Files Lawsuit in South Carolina Seeking to Overturn State Law

By


CHICAGO—Opternative Inc., which developed the first online refractive eye exam, stepped up its battle to offer online exams in South Carolina by filing a lawsuit Thursday in state court against the state’s Department of Labor, Licensing and Regulation and Board of Medical Examiners.

The nonprofit Institute for Justice joined Opternative as a plaintiff in the suit, which seeks to have a recent South Carolina law declared unconstitutional and to permit South Carolina-licensed eyecare professionals to write corrective-lens prescriptions that are based upon Opternative’s technology.

The moves are the latest in the battle between the technology startup Opternative and the American Optometric Association and South Carolina Optometric Association, both of which backed the state legislation. In April, the AOA filed a complaint with the Food and Drug Administration (FDA) that challenged Opternative’s claims about its technology.

Opternative, which offers online eye exams in 39 states, was prohibited from offering the exams in South Carolina by legislation passed earlier this year. The bill survived the governor’s veto after the state Senate and House both voted to override the governor’s decision as reported by VMail.

According to Opternative’s lawsuit, the new law “effectively prohibits South Carolina-licensed ophthalmologists from using [Opternative technology] to issue any prescriptions at all. The purpose of this new law is not to protect the public health or safety but instead to protect the profits of established businesses.”

The lawsuit also states that “traditional refractive eye exams are subjective, in that they rely on an individual’s self-reporting of what they see, as distinct from objective exams that rely on physically measuring an individual’s eyes. An exam conducted using Opternative’s technology relies on exactly the same self-reporting principle as a traditional exam.”

Opternative chief executive and co-founder Aaron Dallek told VMail, the company “care[s] deeply about the health of all of our patients and recommend they get an eye health exam every two years as is recommended by the American Optometric Association.”

He added, “This recommendation is communicated throughout our process and is on every prescription. Our ocular telehealth technology is used by ophthalmologists who should have the choice to use whatever technology they feel is appropriate for their patients and meets the standard of care required by their license. Those doctors who use Opternative's telehealth technology meet the same standard of care as is provide in the doctor’s office for a refractive eye exam.”

The suit drew a swift response from the American Optometric Association (AOA), which, in its statement, characterized the lawsuit as a “special-interest attack from a company attempting to expand their business in spite of patient safety concerns is unfounded and groundless.”

“Illinois-based Opternative and its legal arm, ‘The Institute for Justice,’ are not concerned about the health care needs of the people of South Carolina,” Barbara L. Horn, OD, AOA’s secretary-treasurer and an optometrist in Conway, S.C., said in the AOA statement. “Having lost decisively in our state capital and still lacking any credible research or federal medical device approvals, they’ve come back to try to impose their profit-driven approach to health care on South Carolina. Their questionable legal tactics that will cost the citizens of our state time and money—resources better invested in protecting the health of our patients.”

AOA also noted that it “is disappointed that the Institute of Justice is supporting Opternative in a lawsuit against the state, which is clearly an attempt to expand their business in spite of patient safety concerns.”