THE STATE OF SOUTH CAROLINA 

In The Court of Appeals 

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. 

Appellate Case No. 2018-000326 

Appeal From Richland County 

DeAndrea G. Benjamin, Circuit Court Judge 

Opinion No. 5818 

Heard November 2, 2020 – Filed May 5, 2021 

REVERSED AND REMANDED 

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. 

WILLIAMS, J.: 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. 

FACTS/PROCEDURAL HISTORY 

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 

1

 The refractive error relates to how light bends within the eye. The patient's 

refractive error can be determined by different methods, but one method involves 

asking the patient whether certain lenses placed in front of his or her eye make a 

projected image better or worse. 
 

 

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. 

ISSUE ON APPEAL 

Did the trial court err in finding that Opternative lacked standing to challenge the 

validity of the Act? 

STANDARD OF REVIEW 

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 

2

 The Association worked with legislators to draft the Act and lobbied for the Act. 

The Association moved to intervene because optometrists are subject to the Act's 

provisions. 
 

 

 

 

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. "[A] scintilla is a perceptible amount. 

There still must be a verifiable spark, not something conjured by shadows." 

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) ("A legislative act will not be declared unconstitutional 

unless its repugnance to the constitution is clear and beyond a reasonable doubt."). 

LAW/ANALYSIS 

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. 
 

 

I. Injury in Fact 

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 

3

 Doctor Michael W. Zolman, a South Carolina-licensed optometrist, stated in his 

deposition that "ocular health" is an anatomical assessment and "visual status" is an 

assessment of visual accuracy, accommodation of amplitudes, and ocular 

alignment. 
 

ophthalmologists from relying solely on Opternative's Technology when issuing 

prescriptions. See § 40-24-10(3). 

However, we find the trial court erred in ruling the Act's prohibition of 

Opternative's chosen business model was not an injury in fact. An injury in fact is 

"an invasion of a legally protected interest which is (a) concrete and particularized, 

and (b) 'actual or imminent'" rather than conjectural or hypothetical. ATC S., Inc. 

v. Charleston County, 380 S.C. 191, 195, 669 S.E.2d 337, 339 (2008) (quoting 

Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)). An economic interest is a 

legally protected interest. See Toussaint v. State Bd. of Med. Exam'rs, 285 S.C. 

266, 268, 329 S.E.2d 433, 434–35 (1985) ("[The a]ppellant's 'interest in his own 

reputation and in his economic well-being' clearly give him a personal stake in the 

outcome of the controversy." (quoting Jenkins v. McKeithen, 395 U.S. 411, 423 

(1969))). 

In Joseph, our supreme court held a physical therapist and two doctors suffered an 

injury and had standing to challenge a particular law. 417 S.C. at 449–50, 790 

S.E.2d at 770. The law precluded physical therapists from being employed by a 

doctor and treating patients referred to them by the doctor. Id. at 443–44, 790 

S.E.2d at 766–67. However, the law did not prohibit doctors from employing other 

healthcare professionals and referring patients to them. Id. at 442, 790 S.E.2d at 

766. The law also did not prohibit a physical therapist from being employed in a 

physical therapist group practice and treating patients referred by another therapist 

in the practice. Id. at 445, 790 S.E.2d at 767–68. The court held this was 

sufficient to find the appellants had suffered an injury because the law prohibited 

the appellants from pursuing their profession under the arrangement they desired. 

Id. at 449–50, 790 S.E.2d at 770. 

We find Opternative suffered an injury in fact. Opternative's affidavits provide 

evidence that Opternative suffered an actual and particularized injury: Opternative 

previously conducted business in South Carolina, but it no longer does. Similar to 

the physical therapists and physicians in Joseph, Opternative is prohibited from 

engaging in business under the business model it desires. See id. Pursuant to 

Joseph, the fact that the Act would allow Opternative to operate under a different 

model does not eliminate Opternative's ability to challenge the Act. See id. 

Although the State can regulate businesses and business models in pursuit of 

protecting the public, those affected by such laws have the right to challenge their 

validity. Compare Denene, Inc. v. City of Charleston, 359 S.C. 85, 97, 596 S.E.2d 

917, 923 (2004) (stating the government can regulate and restrict businesses in 

pursuit of preserving public health, safety, and welfare), with Joytime, 338 S.C. at 
639–40, 528 S.E.2d at 649–50 (finding the appellant had standing to challenge a 

statute regulating its business). Therefore, we hold the trial court erred in finding 

Opternative had not suffered an injury in fact because it could change its business 

model to comply with the Act. 

II. Causation 

Opternative argues the trial court erred in finding there was no causal connection 

between its injury and the Act. We agree. 

The second element of standing is establishing a causal connection between the 

injury and the challenged conduct. See Joseph, 417 S.C. at 467, 790 S.E.2d at 779. 

A causal connection exists if the injury is "fairly . . . trace[able] to the challenged 

action of the defendant, and not . . . th[e] result [of] the independent action of some 

third party not before the court." Sea Pines, 345 S.C. at 601, 550 S.E.2d at 291 

(omissions and alterations in original) (quoting Lujan, 504 U.S. at 560). 

Establishing a "but for" causal connection or showing a substantial likelihood that 

the challenged action caused the injury is sufficient. Duke Power Co. v. Carolina 

Envtl. Study Grp., Inc., 438 U.S. 59, 74–78 (1978); see also Bailey v. S.C. Dep't of 

Health & Envtl. Control, 388 S.C. 1, 7, 693 S.E.2d 426, 429 (Ct. App. 2010) 

(finding no causal connection existed when the conduct causing the appellant's 

alleged injury existed before the challenged state action). 

We find the trial court erred in holding there was no causal connection between 

Opternative's injury and the Act. The trial court reasoned Opternative's injury was 

caused by ophthalmologists declining to use the Technology, which was "an act 

from a third party not before the court." We disagree. The ophthalmologists' 

decision to stop using the Technology was not an independent action because it is 

fairly traceable to the Act. See Sea Pines, 345 S.C. at 601, 550 S.E.2d at 291 

("[T]he injury has to be 'fairly . . . trace[able] to the challenged action of the 

defendant . . . .'" (first omission and second alteration in original) (quoting Lujan, 

504 U.S. at 560)). Opternative's affidavits presented evidence that 

ophthalmologists stopped using the Technology because the Act prohibited 

Opternative's business model. See Joseph, 417 S.C. at 449–50, 790 S.E.2d at 770 

(stating there was a causal connection between the doctors and physical therapist's 

injury of not being able to work in an employer-employee arrangement and the 

laws precluding such an employment arrangement). The record does not contain 

any evidence that ophthalmologists stopped using the Technology for any other 

reason. Accordingly, the evidence, when viewed in the light most favorable to 

Opternative, shows a "substantial likelihood" that the Act caused Opternative's 
injury. See Duke Power, 438 U.S. at 77 (stating a showing of substantial 

likelihood satisfies the causal connection requirement); cf. Bailey, 388 S.C. at 7, 

693 S.E.2d at 429 (finding no causal connection existed when the conduct causing 

the appellant's alleged injury existed before the challenged state action). 

The Department and the Board assert Opternative also failed to show a causal 

connection because (1) they have not had an occasion to enforce the Act, (2) they 

do not have any authority over Opternative, and (3) Opternative has not 

complained of any conduct by the Department or the Board. See Sea Pines, 345 

S.C. at 601, 550 S.E.2d at 291 ("[T]here must be a causal connection between the 

injury and the conduct complained of—the injury has to be 'fairly . . . trace[able] to 

the challenged action of the defendant . . . .'" (first omission and second alteration 

in original) (quoting Lujan, 504 U.S. at 560)). We disagree. 

The Department and the Board are responsible for enforcing violations of the Act. 

See S.C. Code Ann. § 40-1-40(B) (2011) (stating the Department oversees the 

Board); S.C. Code Ann. § 40-47-10(I) (2011 & Supp. 2020) (providing the Board 

with the powers and duties of regulating the practice of medicine); S.C. Code Ann. 

§40-47-110 (2011 & Supp. 2020) (providing the Board with the authority to take 

disciplinary action for misconduct by licensed professionals); § 40-24-20(D) 

(stating violation of the Act constitutes misconduct as provided in section 

40-47-110). The Department's and the Board's future enforcement of the Act 

against ophthalmologists using the Technology affects Opternative. Also, the fact 

that the Department and the Board have not taken any action against Opternative or 

to enforce the Act does not affect Opternative's standing. Opternative seeks 

declaratory judgment of the Act's validity, and a party does not have to first violate 

a statute to challenge its validity. See Joseph, 417 S.C. at 450, 790 S.C. at 770 

("The Declaratory Judgment Act should be liberally construed to accomplish its 

intended purpose of affording a speedy and inexpensive method of deciding legal 

disputes and of settling legal rights and relationships, without awaiting a violation 

of the rights or a disturbance of the relationships." (quoting Pond Place Partners, 

Inc. v. Poole, 351 S.C. 1, 16, 567 S.E.2d 881, 888–89 (Ct. App. 2002))). Finally, 

because Opternative provides a service to the public and ophthalmologists, the 

Department's and the Board's lack of regulatory authority over Opternative is 

irrelevant. See Quality Towing, Inc. v. City of Myrtle Beach, 340 S.C. 29, 34, 530 

S.E.2d 369, 371 (2000) ("[V]endors and those in like positions have been 

uniformly permitted to resist efforts at restricting their operations by acting as 

advocates of the rights of third parties who seek access to their market or function." 

(alteration in original) (quoting Craig v. Boren, 429 U.S. 190, 195, (1976))). 
 

 

Accordingly, we hold the trial court erred in finding there was no causal 

connection between Opternative's injury and the Act. 

III. Redressability 

Opternative argues the trial court erred in finding a lack of redressability. We 

agree. 

To satisfy the third element of standing, "it must be 'likely,' as opposed to merely 

'speculative,' that the injury will be 'redressed by a favorable decision.'" Hoyler v. 

State, 428 S.C. 279, 305, 833 S.E.2d 845, 859 (Ct. App. 2019) (quoting Sea Pines, 

354 S.C. at 601, 550 S.E.2d at 291). When summary judgment would be 

appropriate under Rule 56, the nonmoving party cannot solely rely on allegations 

or denials asserted in his pleadings but must respond, such as through an affidavit, 

and show there is a genuine issue of fact for trial. Rule 56(e). "Supporting and 

opposing affidavits shall be made on personal knowledge, shall set forth such facts 

as would be admissible in evidence, and shall show affirmatively that the affiant is 

competent to testify to the matters stated therein." Id. 

The trial court erred in finding Opternative failed to show a favorable decision 

would redress its injury. The trial court referred only to Opternative's complaint 

when discussing redressability and did not address Bodde's affidavit. In his 

affidavit, Bodde stated that based on his personal knowledge and experience, 

Opternative was in contact with ophthalmologists who indicated they would 

resume use of the Technology if the Act was struck down. See Rule 56(e) 

("Supporting and opposing affidavits shall be made on personal knowledge . . . ."). 

When viewed in the light most favorable to Opternative, this is evidence that a 

favorable decision would redress Opternative's injury. See Hancock, 381 S.C. at 

329–30, 673 S.E.2d at 802 (stating all the evidence and all inferences therefrom are 

viewed in the light most favorable to the nonmoving party). Accordingly, we 

reverse this finding. 

CONCLUSION 

Based on the foregoing, we hold the trial court erred in finding Opternative lacked 

standing, and we reverse. Because the trial court ruled only on the issue of 

standing and did not rule on the merits of Opternative's constitutional challenge to 

the Act, we decline to address the merits on appeal. Therefore, we remand this 

case for further consideration. 
Accordingly, the trial court's order is 

REVERSED AND REMANDED. 

HUFF and GEATHERS, JJ., concur.