Yesterday, US District Judge Katherine Hayden dismissed the instant copyright infringement action filed by the American Board of Internal Medicine (ABIM) against defendent Jaime Salas Rushford MD because the action was time-barred by its three-year statute of limitations.
The ruling stems from a December 2009 complaint filed by the ABIM against Rajender K. Arora who conducted a live six-day board review course called the Arora Board Review (ABR) course in May 2009 in Livingston, NJ. Around that time, ABIM discovered test questions on ABR's website that ABIM suspected were copied from its prior examinations. ABIM filed their complaint that Arora, ABR, and an ABR employee, Anise Kachadourian, alleging a scheme through which "ABR unlawfully obtained ABIM's secure examination items by mobilizing course attendees to divuldge contents of the examination to defendents" in violation of federal copyright law. The December 2009 complaint also named 50 John Doe defendents "a presently unknown member of past and/or present candidates for Board Certification who have complied with this requests of defendents Arora and Kachadourian to provide secure, copyrighted examination content to Arora for further dissemination." (Note: the issue of ABIM claiming violations of copyright law are solely those of ABIM and were not addressed by the judge in her opinion, but rather the motion to dismiss was made taking everything the ABIM said was true and giving all the inferences they made in their favor.)
On the same day that it filed the December 2009 complaint, ABIM successfully obtained an ex parte order from the district court authorizing United States Federal Marshal to "break open and/or forcibly enter" the individual defendents' homes and seize, among other things, all communications with ABR's customers relating to infringement of ABIM's copyrighted examination. This action later led to national headlines in June 2010 that claimed "doctors cheated."
According to the ruling: "As a result of the seizure, ABIM obtained a trove of emails between Arora and various course attendees. The lawsuit against Arora was settled in June, 2010, and according to counsel, ABIM began instituting action against individual physicians whom ABIM deemed complicit with Arora and ABR. According to the complaint eventually filed in court, ABIM identified Jaime Salas Rushford in January 2012 as one of ABR's alledgedly complicit customers, when it linked him to an e-correspondence about August 2009 exam questions that was sent from the email address "firstname.lastname@example.org." Salas allegedly began compiling detailed ABIM examination content that he got from colleagues who sat for the examination leading up to his own examination date 20 August 2009 and sent it to Arora using the email@example.com email address."
ABIM then waited until October 2014 to file the current action against him in October 2014, even though they knew the identity of Salas Rushford in January 2012, eight months before the three-year statute of limitations for their action against Arora ended. (ABIM argued that the three-year statute of limitations did not begin until January 2012 when the identified Salas Rushford as the owner of the firstname.lastname@example.org email address.) In fact, the judge noted "ABIM made an intentional decision not to bring suit against Salas within the applicable limitations period when the alledged facts clearly show it was capable of doing so." Judge Hayden goes on to say that "this lawsuit against Salas is a coda to the main thrust of ABIM's litigation efforts, apparently born of a second look at the decision ABIM made not to sue Salas when his name popped up in January 2012."
At the time Salas Rushford was sued by ABIM in 2014, he filed a counterclaim, not only against ABIM, but against Richard Baron, MD, Christine Cassel, MD, Lynn O. Langdon, Eric Holmbie, MD, and members of an alleged ABIM "Hearing Panel" comprised of David Coleman, MD, Joan M. Von Feldt, MD, and Naomi O'Grady, MD. He also included ABIM's insurance companies and Pearson Education Inc. in the counterclaim. That counterclaim now proceeds.
The implications of the decision by the Judge Hayden yesterday are signficiant for a large portion of practicing US physicians and for the the financial solvency of the ABIM. According to its most recently-available Fiscal Year 2015 federal tax forms, the ABIM has a deficit of $50,642,980. Currently, their website lists the ABIM's FY 2016 expenses at $62.5 million, $2.5 million more than their federal tax form disclosed for fiscal year 2015. Legal expenses are signficiantly contributing to these expenses, not just "strategic non-capitalized spending on infrastructure upgrades in anticipation of the launch of a new MOC assessment in 2018" as ABIM claims on its website.
How much higher can these expenses be allowed to go? Who shoulders these expenses?
From 2000 to 2014, the cost of board certification has increased 244% (16.3%/year) from $795 to $1940 for general internists and 257% (17.2%/yr) from $995 to $2560 for specialists. This year, candidates sitting for their initial board certification in cardiac electrophysiology had to pay $2830 to register for their examination.
If things continue the way they are, the countersuit by Salas Rushford will be the least of the ABIM's legal and financial concerns as doctors come together to act collectively on their own behalf.
Disclaimer: I serve as an expert witness for Jaime Salas Rushford, MD and am a co-founder of Practicing Physicians of America, a physician advocacy organization.