Opternative, Inc. v. S.C. Bd. of Med. Exam'rs
| Decision Date | 05 May 2021 |
| Docket Number | Appellate Case No. 2018-000326,Opinion No. 5818 |
| Citation | 433 S.C. 405,859 S.E.2d 263 |
| Court | South Carolina Court of Appeals |
| Parties | OPTERNATIVE, INC., Appellant, v. SOUTH CAROLINA BOARD OF MEDICAL EXAMINERS and the South Carolina Department of Labor, Licensing & Regulation, Respondents, And South Carolina Optometric Physicians Association, Respondent. |
Miles Edward Coleman, of Greenville, and William C. Wood, Jr., of Columbia, both of Nelson Mullins Riley & Scarborough, LLP; and Robert J. McNamara and Joshua A. Windham, of the Institute for Justice, of Arlington, Virginia, admitted pro hac vice, all for Appellant.
Eugene Hamilton Matthews, of Richardson Plowden & Robinson, P.A., of Columbia, for Respondents South Carolina Board of Medical Examiners and South Carolina Department of Labor, Licensing and Regulation.
Kirby Darr Shealy, III, of Adams and Reese, LLP, of Columbia, for Respondent South Carolina Optometric Physicians Association.
This appeal arises from Opternative, Inc.’s (Opternative) action challenging the constitutionality of sections 40-24-10 and 40-24-20 of the South Carolina Code (Supp. 2020). The trial court found Opternative lacked standing to challenge the statutes and granted summary judgment to the South Carolina Department of Labor, Licensing and Regulation (the Department), the South Carolina Board of Medical Examiners (the Board), and the South Carolina Optometric Physicians Association (the Association) (collectively, Respondents). We reverse and remand.
Opternative developed technology (Technology) that would allow an individual to determine the refractive error1
of his or her eyesight without going to an optometrist or ophthalmologist for an examination. With the Technology, the individual answers a series of questions relating to his or her medical history and uses a computer and a smart phone to complete the examination to determine his or her refractive error. The results are then reviewed by a South Carolina-licensed ophthalmologist, and if the ophthalmologist determines the individual needs a prescription for corrective lenses, the ophthalmologist writes a prescription. According to Opternative, the Technology is available to the public for free and Opternative only charges the patient for the ophthalmologist's review.
In 2016, the General Assembly enacted the Eye Care Consumer Protection Law (the Act). See §§ 40-24-10 to -20. Following the Act's implementation, ophthalmologists stopped using the Technology, believing the Act prohibited its use. Opternative filed an action against the Department and the Board, seeking a declaratory judgment finding the Act violated its rights under the South Carolina Constitution and an injunction prohibiting enforcement of the Act. The Association moved to intervene, and the trial court granted the motion following Opternative's conditional consent. 2
Opternative submitted two affidavits to the trial court—one by Daniel Bodde, its Chief Marketing Officer, and one by Doctor Edward Chaum, an ophthalmologist. Bodde stated in his affidavit that Opternative was successfully operating in South Carolina to provide prescriptions to state residents through an ophthalmologist. But, Opternative's operations in the state ended once the Act was passed because ophthalmologists stopped using its Technology to provide prescriptions. Bodde stated Opternative was in contact with ophthalmologists who would resume use of the Technology to write corrective-lens prescriptions if the Act was struck down. In his affidavit, Dr. Chaum stated he used the Technology to write prescriptions for South Carolina residents but stopped doing so when the Act went into effect.
The Department and the Board moved for summary judgment, asserting Opternative lacked standing and the Act was constitutional. Opternative opposed the motion and requested summary judgment in its favor. The Association filed a memorandum of law joining the Department and the Board's motion and providing additional arguments regarding the Act's validity. Following a hearing on the motions, the trial court granted summary judgment in favor of Respondents, finding Opternative lacked standing because the Act only prohibited Opternative's chosen business model. The court expressly declined to address the issue of the Act's validity. This appeal followed.
Did the trial court err in finding that Opternative lacked standing to challenge the validity of the Act?
This court reviews a grant of summary judgment under the same standard applied by the trial court under Rule 56(c), SCRCP. Loflin v. BMP Dev., LP , 427 S.C. 580, 588, 832 S.E.2d 294, 298 (Ct. App. 2019). Pursuant to Rule 56(c), summary judgment is proper if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." "In determining whether any triable issues of fact exist, the evidence and all inferences which can be reasonably drawn from the evidence must be viewed in the light most favorable to the nonmoving party." Hancock v. Mid-S. Mgmt. Co. , 381 S.C. 326, 329–30, 673 S.E.2d 801, 802 (2009). To withstand a summary judgment motion in cases applying a heightened burden of proof, the nonmoving party must provide "more than a mere scintilla of evidence." Id. at 330–31, 673 S.E.2d at 803. Gibson v. Epting , 426 S.C. 346, 352, 827 S.E.2d 178, 181 (Ct. App. 2019). Because a statute will not be declared unconstitutional unless it is clearly proven beyond a reasonable doubt, more than a mere scintilla of evidence is required to defeat a summary judgment motion in cases questioning a statute's validity. See Joytime Distribs. & Amusement Co. v. State , 338 S.C. 634, 640, 528 S.E.2d 647, 650 (1999) (per curiam) ().
Under South Carolina law, standing can be established in three ways: (1) by statute, (2) by constitutional standing, and (3) under the public importance exception. Bodman v. State , 403 S.C. 60, 66–67, 742 S.E.2d 363, 366 (2013). Opternative's arguments at trial and on appeal are limited to constitutional standing. Accordingly, we review standing only under this theory.
Constitutional standing consists of three elements: "(1) the plaintiff must have suffered an ‘injury in fact;’ (2) there must be a causal connection between the injury and the conduct complained of; and (3) it must be likely, as opposed to merely speculative, that the injury will be ‘redressed by a favorable decision.’ " Joseph v. S.C. Dep't of Labor, Licensing & Regulation , 417 S.C. 436, 449, 790 S.E.2d 763, 770 (2016) (plurality opinion) (quoting Sea Pines Ass'n for Prot. of Wildlife, Inc. v. S.C. Dep't of Nat. Res. , 345 S.C. 594, 601, 550 S.E.2d 287, 291 (2001) ). "A party seeking to establish standing carries the burden of demonstrating each element." Id.
Opternative argues the trial court erred in granting Respondents summary judgment. Specifically, Opternative asserts it satisfied the three elements of standing and therefore requests that this court remand the matter for a determination on its motion for summary judgment as to the Act's constitutionality.
Opternative argues the trial court erred in finding it had not suffered an injury as a result of the Act's enactment because the Act only prohibited Opternative's chosen business model. We agree.
Opternative asserts it was injured when its operations in South Carolina ended and that the Act was the source of its injury because the Act prohibits ophthalmologists from using its Technology to prescribe corrective lenses. Because this theory of injury depends on an interpretation of the Act, we must first interpret the Act to determine whether it actually causes Opternative an injury in fact. See Jowers v. S.C. Dep't of Health & Envtl. Control , 423 S.C. 343, 354, 815 S.E.2d 446, 452 (2018). Statutory interpretation is an issue of law that this court reviews de novo. S.C. Dep't of Soc. Servs. v. Boulware , 422 S.C. 1, 6, 809 S.E.2d 223, 226 (2018).
The Act requires that a prescription written by an optometrist or an ophthalmologist to correct refractive error
be "based on an eye examination." § 40-24-10(6). "Eye examination" is defined as an assessment of the patient's ocular health and must include an assessment of the patient's "visual status." 3 § 40-24-10(3). The patient's visual status assessment cannot "be based solely on objective refractive data or information generated by an automated testing device ... to provide a medical diagnosis or to establish a refractive error for a patient as part of an eye examination." § 40-24-10(9). Additionally, the Act states a prescription "may not be based solely on the refractive eye error of the human eye or be generated by a kiosk." § 40-24-20(C). The Act defines "kiosk" as "automated equipment or an automated application, which is designed to be used on a phone, computer, or Internet-based device that can be used in person or remotely to provide refractive data or information." § 40-24-10(4).
We agree with the trial court that the Act prohibits Opternative's current business model. Under its model, ophthalmologists review only the information provided by the Technology and do not interact with the patient or conduct any other type of examination or assessment before writing a prescription. Because a prescription cannot be based solely on the patient's refractive error
but also requires medical findings regarding the patient's ocular health and visual status, the Act precludes...
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