A district court has dismissed a lawsuit levied by a group of physicians against the American Board of Internal Medicine (ABIM) over its maintenance of certification (MOC) program, calling the legal challenge “flawed.”
Dr. Richard J. Baron
In a Sept. 26 decision, U.S. District Court Judge for the Eastern District of Pennsylvania Robert F. Kelly Sr. said the plaintiffs failed to demonstrate sufficient evidence for their antitrust and unjust enrichment claims against ABIM. The doctors also did not establish any showing of anticompetitive conduct by ABIM to support a monopolization claim, the judge ruled.
“We disagree with plaintiffs and find that ABIM’s initial certification and MOC products are part of a single product and do not occupy distinct markets,” Judge Kelly wrote in his decision. “Not only are we unconvinced by plaintiffs’ arguments, we find that plaintiffs’ entire framing of the ABIM certification to be flawed. In essence, plaintiffs are arguing that, in order to purchase ABIM’s initial certification, internists are forced to purchase MOC products as well. However, this is not the case. ... Nowhere in the amended complaint do plaintiffs allege that they were forced to buy MOC products in order to purchase the initial certification.”
The judge dismissed the suit, but allowed the plaintiffs 14 days to submit an amended complaint reoutlining their claims of illegal monopolization and racketeering against the board. If the amended complaint passes legal muster, the judge could revive those claims.
ABIM President Richard J. Baron, MD, expressed satisfaction that the court granted the board’s motion to dismiss the case for failure to state a valid claim.
“ABIM is pleased that the United States District Court for the Eastern District of Pennsylvania dismissed in its entirety a lawsuit that alleged physicians were harmed by the requirements for maintaining ABIM board certification,” Dr. Baron said in a statement.
C. Philip Curley, a Chicago-based attorney for the physician plaintiffs, said the case is far from over.
“The four internists who brought the lawsuit were invited to file amended claims, which is certainly being considered,” Mr. Curley said in an interview. “If necessary, all available appeals will also be pursued to the fullest. No one was under the impression that the fight to bring MOC to an end would be quick or easy.”
The original lawsuit, filed Dec. 6, 2018, in a Pennsylvania district court, claims that ABIM is charging inflated monopoly prices for maintaining certification, that the organization is forcing physicians to purchase MOC, and that ABIM is inducing employers and others to require ABIM certification. On Jan. 23 of this year the legal challenge was amended to include racketeering and unjust enrichment claims.
The four plaintiff-physicians want the court to find ABIM in violation of federal antitrust law and to bar the board from continuing its MOC process. The suit is filed as a class action on behalf of all internists and subspecialists required by ABIM to purchase MOC to maintain their ABIM certifications.
Two other lawsuits challenging MOC, one against the American Board of Psychiatry and Neurology and another against the American Board of Radiology, are ongoing. A fourth lawsuit against the American Board of Medical Specialties, the American Board of Emergency Medicine, and the American Board of Anesthesiology was filed in February.
Chicago-based cardiologist Wes Fisher, MD, and fellow physicians with the Practicing Physicians of America are funding the plaintiffs’ legal efforts through a fundraising campaign that has raised more than $300,000.
In an interview, Dr. Fisher called the legal fight against ABIM “a David versus Goliath effort” and said the battle will continue.
“The ABIM may have won this first round, but ... they have only dodged the antitrust tying claim and unjust enrichment claims,” Dr. Fisher said. “The monopoly claim and racketeering claims are still very much open. Plaintiffs have 14 days to amend their compliant.”
