Monday, November 23, 2020

For ABPN: Their Legal Headaches Aren't Over Until They're Over

Today, the first amended class action anti-trust complaint was filed by Drs. Emily Elizabeth Lazarou and Aafaque Akhter against the American Board of Psychiatry and Neurology (ABPN) in the US District Court for the Northern District of Illinois in response to Judge Martha Pacold's 11 Sep 2020 dismissal without prejudice of their earlier complaint. Much of the Amended Complaint is noteworthy, but paragraphs 20 and 21 drive home the true motivation behind Maintenance of Certification (MOC):

20. MOC is not about maintaining standards as ABPN contends. It is a revenue-driven commercial endeavor, motivated by tens of millions of dollars in new MOC fees.  (Emphasis mine) As indicated by the failure of its earlier voluntary CPD product, MOC is financially successful only because it is mandatory and tied to certifications. ABPN’s financial results amply document this. After the launch of MOC, from 2004 through 2018, ABPN’s “Program service revenue” exceeded its total expenses by a yearly average of $4,448,338, as reported in its Forms 990 filed with the Internal Revenue Service (“IRS”). But for its reporting status as a supposed not-for profit organization, this translates into almost $4,500,000 in average annual profits before investment and other income is taken into account.

21. During the same time, ABPN “Net assets or fund balances” skyrocketed over 971%, from $12,610,227 at the beginning of 2004 to $122,470,594 in 2018. In other words, while it took ABPN almost seventy years to accumulate net assets (assets less liabilities) of $12,610,227 from selling certifications, ABPN net assets increased almost ten-fold to $122,470,594 as a result of selling MOC, including $97,169,079 in cash, savings, and securities on hand at year-end 2018. (Emphasis mine)
The Amended Complaint filed today greatly simplifies the case for a better understanding by the judge: the extortion of US physicians for an unproven and falsely marketed educational product must end.


Sunday, October 25, 2020

Thanks to All!

As treasurer of Practicing Physicians of America, it gives me great pleasure to announce that we hit our goal of raising $400,000 in support of the Plaintiff-physicians who filed class action antitrust lawsuits against the American Board of Internal Medicine, American Board of Radiology, and the American Board of Psychiatry and Neurology.

Over 1,800 individuals, the vast majority of whom are working US physicians from a diverse range of subspecialties, contributed to this effort. These contributions were truly voluntary and made by people who felt strongly that the monopoly power these organizations unjustifiably enjoy over us needed to be held accountable for the harms (economically, emotionally, and professionally) they are causing to working physicians and our profession. This milestone proves that physicians can still do incredible things when they put aside their differences and work together.

While the results of the multi-year legal effort remain uncertain, many beneficial results have already occurred. But we should acknowledge that nearly 40% of our contributions were anonymous donations owing to the threat many physicians still feel from these organizations at their workplace. Simply put: our work is not done.

While there is still much to do in this David vs. Goliath effort, on behalf of all of us at Practicing Physicians of America,  thanks to all of our contributors for a job well done.

Westby G. Fisher, MD
Treasurer, Practicing Physicians of America and
Organizer of this legal-support GoFundMe campaign

P.S. Further updates regarding the status of these class action anti-trust cases will continue. Physicians still wanting to contribute are encouraged to do so.

Friday, October 23, 2020

ABIM Stumbles in Appellate Court Arguments

The oral arguments in the appeal of the dismissal at the District Court level of the Kenney et al vs American Board of Internal Medicine (ABIM) class action antitrust, RICO, and unjust enrichment case were heard before the 3rd Circuit Court of Appeals today and are available via audio file here. The following interchange starting at 32:58 in the audio file was interesting (I have added a few personal comments/thoughts in italics):

Judge: "Could I just ask the follow-up there about forcing? How do we conclude that internists aren't forced to buy MOC at this stage in the litigation in light of the allegations that internists can't successfully practice without certification? Isn't the feasibility of practicing without certification ultimately a question of fact?"

ABIM Attorney: "I think you can first look to, um, look to the facts in this case. For instance, Dr. Manolo who, who never, who did purchase initial certification and never purchased Maintenance of Certification. I think that certainly shows that his purchase of initial certification was not contingent on the later purchase of Maintenance of Certification. (Comment: It also shows there are two products). So I think that is one way you can look at it. I think you can also look at it in the way that the Second Circuit indicated in the Smugglers Notch Homeowner's case which is a case where, which looked at, when you're entering in to the transaction and you know that, in fact, you're that going to be required, there are certain components, parts, of that entire transaction, and you know that up front, and you voluntarily nonetheless enter into that contract, that there is no forcing." 

Judge: "But counselor, what I'm talking about is it might not be so voluntary - they want to make a living, are they forced to buy your product? You seem to say no they're not forced to, but is that essentially an issue of fact more appropriate for summary judgement?"

ABIM Attorney: "Um, I would suggest not because I think when courts look to forcing they look at what is the situation at the time of the initial purchase? At the time of the initial purchase here ABIM had a program for certification and aspects of that program were initially passing the initial board certification exam and that that certification would expire after a set period of time - ten years - without unless diplomate passed subsequent examinations. And so when they, up front, bought that product they knew there would be a continuing obligation as part of the certification program, that they would have to demonstrate, in fact, that they possess the requisite knowledge to hold themselves out and say "Yes, I am ABIM, or board certified." So there is no forcing because there is the knowledge up front at the time of purchase of what certification entails, um, and that was the periodic demonstration of knowledge."

Judge: "But I suppose that the most basic form of your argument is, they don't have to go through ABIM to practice." 

ABIM Attorney: "Yes, your Honor. If you look at the Amended Complaint, the Amended Complaint is quite clear that board certification is not required to practice medicine in the United States. That is simply a function of state boards of medicine that license doctors. Um, you only need a license in your state, um, to practice medicine. Board certification is not required. Board certification is more like the "Stamp of Approval" that you can hold yourself out to have special qualifications. (As I have said all along, board certification is actually little more than a marketing accolade.) Some patients and employers look to that, others do not, but it is not a requirement to practice medicine in any state in the United States which is a fact that is pled in the Amended Complaint."

Judge: "But this does go to your market power, I mean, yeah, it's true, you don't need the ABIM certification. But is it really feasible not to have it, in reality? And I think, the allegations, don't they say, a lot of places won't let you practice, your malpractice rates are going to go higher, reimbursement's going to be an issue. So is it really feasible to practice without certification and is that something that should be a subject of discovery as opposed to, you know, at this juncture with a motion to dismiss to resolve?"

ABIM Attorney: "Well. well many, I would submit many internists do, in fact, practice medicine, um, without ABIM certification and there are many things that might affect how much you are paid, what your admitting privileges are - things like where you attended medical school and many other factors. (Comment: And if you believe this, I have some ocean-front property to sell you in Arizona). But it really comes back to, you know, what is at issue in this case and whether, in fact, there is a tying claim and whether or not there is, um, one product or two products and that really goes back to the Supreme Court test in Jefferson Parish about the character of demand and whether there is demand for the tied product in absence of the typing product.  And here, the Appellants want to hold themselves out as being "board certified." There is no separate demand for the tied product in the absence of the tying product. And that is something I think is, is something that, you know, the Court in Jefferson Parish makes clear. Justice O'Connor when she expands on the words in that saying that for products to be treated as distinct, the tied product must, at a minimum, be one that consumers might wish to purchase separately without also purchasing the tying product. And here's.. there's simply... there are no allegations of fact sufficient to move this case along to make a plausible case that there are, in fact, two products here because there is no consumers, there are no allegations showing there is demand to purchase the tied product without also tying the tying product." (Comment: OMG, Seriously?)

Judge: "Alright, thank you counsel."

The judges asked the right questions. Now we have to wait to see if this case is sent back to the District Court for discovery.

I will have additional comments about other aspects of these oral arguments in the days ahead.


P.S.: MedpageToday covered the story as well here.

PPS: If you'd like to help the plaintiff's along their lengthy legal quest to improve the lot for all US physicians regarding MOC, please contribute to the GoFundMe page sponsored by Practicing Physicians of America.

Monday, October 19, 2020

The Important Week Ahead

This Friday, 23 October 2020, oral arguments will be heard before the Third Circuit Court of Appeals regarding Kenney et al vs. the American Board of Internal Medicine (ABIM) class-action antitrust, racketeering, and unjust enrichment lawsuit (Case 20-1007). Some eyes of US physicians and all the eyes of the US certification industry will be on these arguments, even though the oral arguments are, for all intents and purposes, little more than theatre since written arguments have been fully briefed on both sides.

But the stakes for working US physicians and the physician certification industry could not be higher. Since the introduction of Maintenance of Certification® (MOC®) in 1990, ABMS board certification and lifelong re-certification have evolved into a $1 billion enterprise annually in the United States, nearly all of it funded by US physician-paid fees leveraged by coercive tactics and the monopoly on US certification enjoyed by the ABMS and its member boards. 

As this week unfolds, 

  • Let us not forget the accusatory physician sanction letter sent by the ABIM to thousands of vulnerable residents who attended an ACGME-accredited board review course with "concerns about their ethical and professional behavior" and promising to "place a copy of this letter in their file."

  • The unilateral revoking of ABIM board certification for three years that occurs without trial if the ABIM deems a physician does not "maintain moral, ethical, or professional behavior satisfactory to the board."

  • Let us not forget the strong-arming convicted felon who served as the ABIM's Director of Test Security and his work at the shady test security firm Caveon after orchestrating a raid with Federal Marshals on a physicians' home to seize computers and private email lists of physicians.

  • Let us not forget about the young physician who the ABIM pursued and accused of "cheating" - only to lose their case - and whose countersuit continues against the ABIM in Puerto Rico for the past seven years and counting.

  • Let us not forget the numerous tax form discrepancies (fraud?) published by the American Board of Internal Medicine and the Foundation over the years, that included misstated date of origin of the ABIM Foundation, the indulgent purchase of a $2.3 million personal condominium, undisclosed lobbying efforts, and off-shoring of millions in physician testing fees to the Cayman Islands.

  • Let us not forget that the ABIM has never allowed an independent audit of their finances as stipulated by the AMA House of Delegates.

  • Let us not forget the reporting of Kurt Eichenwald of Newsweek on the ABIM and their finances here, here, here, and here.

  • Let us not forget that physicians must agree to an adhesion contract that requires them to be research subjects without their informed consent.

  • Let us not forget that physicians' board data are sold by a subsidiary of ABMS for profit.

  • Let us not forget about the cool $1.426 million dollars paid to the CEO of ABIM and the ABIM Foundation in 2018.

  • And let us not forget that, in the end, this lawsuit is really about the integrity of US Medicine and the justice working US physicians deserve.

Monday, October 12, 2020

The Unjust Enrichment at ABIM

 According to a Medscape survey of US internists in 2018, their average salary was $230,000.

That same year, according to recently-released tax documents, Richard Baron, MD, President and CEO of the American Board of Internal Medicine (ABIM)  and the ABIM Foundation, earned a cool $1,425,605 and non-physician Rebecca Lipner, the Senior Vice President, and Chief Financial Officer (who has never authored a study that wasn't supportive of the certification industry in her tenure with ABIM) earned $758,502:

(It is also notable that ABIM has a former PriceWaterhouseCooper executive serving as Chief Medical Officer that earns over half a million dollars annually as well).

Internists pay these salaries from their testing fees. Those same testing fees also pay "bonuses" that these executives unilaterally decide to bestow upon themselves, including "retention bonuses." But a "retention bonus" from an "early retirement severance package" makes absolutely no sense at all. 
From ABIM's 2018 Form 990:


Salaries to some executives of the ABIM have almost doubled since 2010. These exorbitant salaries and questionable "bonuses" are little more than taxation to physicians without appropriate representation. 

It is time to end this nonsense.


Tuesday, September 29, 2020

With MOC, Will Working Physicians Ever Get Their Day in Court?

For the past seven years, the American Board of Medical Specialties (ABMS) member boards have been under fire regarding their trademarked Maintenance of Certification® (MOC) program that shifted lifetime ABMS board certification to a time-limited US physician credential in 1990. 

Physicians have long argued that before 1990, board certification was an independent and generally-accepted assessment of the quality of their post-graduate specialty training. After 1990, however, ABMS board certification became two separate products: (1) an assessment of their post-graduate training and (2) a "continuous professional development"  (CPD) product tied to their original post-graduate training assessment. 

The logic for this two-product theory is simple. Before January 1, 1990, the CPD product was truly voluntary for physicians to perform. But after a trial run of this voluntary testing, fewer and fewer physicians opted to participate in the program in large part because of its unproven value and expense. To counter the declining enrollment, the American Board of Internal Medicine (ABIM) "Task Force" (and eventually all other ABMS member boards) decided to tie participation in the ABMS CPD product to the validity of a physician's initial assessment of their post-graduate training:

"Thus, the stage was set for the Board to embark on a new era in which its diplomates would be asked, but not required, to renew the validity of their certificates at periodic intervals or face the uncertain circumstances of loss of their status as certified internists, subspecialists, or holders of certificates of added qualifications."(1)
It didn't matter if a physician had participated in other self-directed Continuing Medical Education (CME) on their own accord; unless a physician performed the ABMS-sanctioned CPD program, they would lose their original ABMS board certification credential and the privileges that credential imparts to physicians in terms of academic, professional, and economic value.

This tie between a physician's original post-graduate assessment and lifelong continuous professional development proved remarkably lucrative for the ABMS and their member boards. So much so, that the ABMS CPD program was later trademarked as "Maintenance of Certification®" (MOC®) and had its own profit line on ABMS member board tax forms. The tie was so lucrative, in fact, that the largest member board, the ABIM, created an undisclosed shadow organization, the American Board of Internal Medicine Foundation (later renamed the ABIM Foundation) and secretly funneled tens of millions of dollars for nearly ten years without disclosing its existence to physicians and the public and purchased a $2.3 million condominium for themselves. After its public debut online in 1999, the ABIM Foundation later off-shored millions of those funds to the Cayman Islands in 2015. 

Is it any wonder that physicians would be upset?

Yet here we are.

So far, the ABMS member boards have had exceptionally good fortune protecting their MOC® product in court, arguing before various district court judges that ABMS board certification is not two products that are illegally tied, but rather just one big "board certification" product.  

Last week was no exception. The long-running lawsuit filed by the Association of American Physicians and Surgeons (AAPS) suit against the ABMS was dismissed with prejudice.  In addition, the antitrust suit field by two psychiatrists against the American Board of Psychiatry and Neurology (ABPN) was similarly dismissed (along the same legal lines of the ABIM and ABR lawsuits) but WITHOUT prejudice. (The judge left room here for the original Complaint to be amended - perhaps because the ABR lawsuit was later amended and has been fully briefed but not yet decided). 

It is interesting to this observer that there has been little fanfare in the media regarding these last two rulings in favor of the ABMS member boards. I suspect the ABMS and their associated specialty boards know that all eyes are on the ABIM antitrust lawsuit appeal recently filed. That appeal explains the two-product tie created by the ABIM clearly. Perhaps they'd rather not bring attention to that case that's due for oral arguments on the 23rd of October. So much hinges on the outcome of that case for both them and working physicians.

Irrespective of the cases outcome, however, the credibility and value of ABMS board certification has been tarnished forever. Given the revelation of the conflicts of interests and lucrative nature of ABMS board certification, rhe only way the ABMS brand could redeem itself is for a full accounting of all that has transpired against working physicians by these self-appointed non-representative academic physicians and the non-physicians corporate directors now at the helm of these lucrative ABMS specialty boards.


(1) Richard J. Glassock, MD, John A. Benson, MD, Robert B. Copeland, MD, Herman A. Godwin, MD, et al. Time-Limited Certification and Recertification: The Program of the American Board of Internal Medicine.

P.S.: Working physicians are still encouraged to support these important ongoing legal battles by contributing to the GoFundMe page sponsored by Practicing Physicians of America.

Saturday, September 12, 2020

The Latest Roundup of ABMS Antitrust Lawsuits

Since December 2018, a rash of antitrust lawsuits have been filed against the American Board of Medical Specialties (ABMS) and their member boards. While it might seem that little has transpired since then since there are rarely press releases about the court dealings underway, I thought it would be helpful to bring my physician colleagues up to date on the current status of the many lawsuits in play, as best as I can tell from public record. 

What follows is a roundup of those lawsuits and the current legal activity as confirmed public court dockets at, the legal search engine used by the courts.
Kenney et al. v American Board of Internal Medicine (2:18-cv-05260)
(Filed 12/6/2018)

This case had four claims: (1) allegations that the ABIM unlawfully tied its initial certification, the “tying” product, and its MOC programs, the “tied” product." (2) allegations that the ABIM used “anticompetitive conduct,” including unlawful tying, to obtain and maintain monopoly power over the certification market, (3) the allegation that the ABIM violated Section 1962(c) of the RICO Act by fraudulent misrepresentations that MOC has a beneficial impact on physicians, patients, and the public and finally, (4) unjust enrichment claims.

The first antitrust claim in this case was dismissed with prejudice in part because the court sided with ABIM, stating that "Internists are not buying 'initial certification' or 'maintenance of certification,' but rather ABIM certification. This is made clear by hospitals and other medical service providers requiring ABIM certification, in general. This fundamental misconception about the nature of the entire certification product offered by ABIM undercuts Plaintiffs’ arguments." The court continued: "We are unconvinced by Plaintiffs’ arguments that ABIM’s initial certification and MOC programs are distinct products. Plaintiffs’ failure to establish two products means there can be no unlawful tying arrangement and we need not continue our analysis."

The second monopoly and third RICO claim were dismissed without prejudice, in part because the court felt the Plaintiffs lacked "standing" and failed to document their monetary damages. The fourth unjust enrichment claim was also dismissed with prejudice, despite some agreement with the plaintiffs: "Clearly, the first two elements of unjust enrichment are met for Plaintiffs that purchased MOC. However, the third element is not met because it is not inequitable for ABIM to keep the benefit since it did not “force” Plaintiffs to purchase MOC. Plaintiffs were, of course, free to decide to no longer be certified by ABIM and to, therefore, not purchase MOC." (To this physician, it appears the court did not fully understand the consequences to physicians who fail to purchase MOC in terms of insurability, employability, and legal and professional reputation.)


On 4 May 2020, this entire case was appealed (Case 20-1007) to the 3rd Circuit Appellate Court on the grounds that "The district court assumed there is one product without any basis other than its unsupported conclusion that internists are “actually buying” ABIM certification rather than certifications and MOC. In doing so it arrogated to itself determination of the ultimate factual issue, and simply took as true ABIM’s arguments rather than Plaintiffs’ factual allegations to the contrary. A proper reading of the Complaint taking all well-pled allegations as true and construing all inferences in their favor confirms Plaintiffs have alleged facts showing certifications and MOC are separate products and have also alleged all other elements of a per se tying claim. Thus, dismissal was erroneous and should be reversed."

In addition, regarding the RICO claim, the amended complaint states: "The RICO scheme here is simple and plausible. ABIM’s first CPD product, its voluntary 'Continuous Professional Development Program,' failed due to lack of sales. ABIM realized its new CPD product, MOC, could generate the fees desired by ABIM only if internists were forced to buy MOC to keep their certifications from being revoked. Knowing MOC could not succeed on its own merits, ABIM waged a campaign, “to deceive the public, including but not limited to hospitals and related entities, insurance companies, medical corporations and other employers, and the media, that MOC, among other things, benefits physicians, patients and the public and constitutes self-regulation by internists.”

At present, it appears oral arguments from both sides will be heard before the Appellate Court 23 Oct 2020.

Mannis et al. v American Board of Medical Specialties, American Board of Emergency Medicine, and the American Board of Anesthesia (3:19-cv-00341)
(Filed 2/19/2019)

This is another class action antitrust case that claims the following: "Defendants conduct alleged herein constitutes illegal tying of the purchase of MOC to defendants’ initial medical specialty certifications, as well as the creation and maintenance of a monopoly in the MOC market. During the relevant period, defendants and co-conspirators engaged in a continuing combination or conspiracy to unreasonably restrain trade and commerce in violation of the Sherman Act by the conduct alleged herein, artificially reducing or eliminating competition in the MOC market, and artificially fixing, raising, and/or maintaining the costs of MOC in the United States. Such conduct constitutes a per se violation of the Sherman Act."

There was an attempt to consolidate this antitrust case with the former ABIM case, but that attempt failed. Each case will be tried individually.


There have been multiple entries on for changes of lawyers but no activity documented on the court docket since June 2020.
Siva v American Board of Radiology (1:19-cv-01407)
(Filed 2/26/2019)

This is another class action antitrust lawsuit with three claims: (1) that the American Board of Radiology (ABR) engaged in illegal tying of MOC to initial certification in violation of Section 1 of the Sherman Act, (2) that ABR was involved in illegal monopolization and monopoly maintenance in Violation of Section 2 of the Sherman Act, and that ABR's activities resulted in its unjust enrichment.

This case was initially dismissed by the judge, largely on grounds based on precedent created by the ruling of the similar antitrust case filed earlier against the ABIM. However unlike the ABIM case, the plaintiff opted to amend his complaint with much more evidence to support his claims.

Since that amended complaint was filed, there has been a legal back and forth between the Plaintiff and the ABR. ABR moved to dismiss the amended complaint, the Plaintiff opposed their motion to dismiss the amended complaint, the ABR replied in support of their motion to dismiss, the the Plaintiff offered a surreply to the ABR's motion to dismiss.


The case now awaits the decision of the judge on whether the Plaintiff's Amended complaint merits moving the case forward or dismisses the Plaintiffs complaints. The timing of that decision is uncertain given the pandemic and court back-log but may come before the end of the year.
Lazarou et al v American Board of Psychaitry and Neurology (1:19-cv-01614)
(Filed 3/6/2019)

This is another class action antitrust lawsuit with three claims: (1) that the American Board of Psychiatry and Neurology (ABPN) engaged in illegal tying of MOC to initial certification in violation of Section 1 of the Sherman Act, (2) that ABPN was involved in illegal monopolization and monopoly maintenance in Violation of Section 2 of the Sherman Act, and (3) that ABPN's activities resulted in its unjust enrichment.

A ruling has yet to be made in this case, since the case was referred to a new District Judge with many other cases to review. As expected, the ABPN filed a brief moving to dismiss the Complaint which the Plaintiffs opposed. The Plaintiffs then supplemented their complaint with information from the ABIM and ABR cases underway. ABPN then filed a brief the those amendments again moving to dismiss the latest Complaint. More recently, the Plaintiffs brought to the attention of the court a recent decision by the 7th Circuit Court of Appeals Viamedia, Inc. v. Comcast Corp. and Comcast Cable Comm. Mgmt., Inc., No. 18-2852 that may have bearing in their case against the ABPN.


The case now awaits the decision of the judge on whether the Plaintiff's Amended Complaint merits moving the case forward or dismisses the Plaintiffs complaints. The timing of that decision is uncertain given the pandemic situation and the judge's case docket.
I hope this brings the US physician community up to date regarding the many class action antitrust lawsuits underway against the American Board of Medical Specialties and its member boards.


Physicians wishing to support the ongoing legal efforts of the physician Plaintiffs are encouraged to contribute to the GoFundMe page set up by Practicing Physicians of America for these efforts.