Thursday, May 02, 2019

Physician Plaintiffs Counter ABIM's Motion to Dismiss

Following the Dec 6 2018 filing of a class action antitrust lawsuit against the American Board of Internal Medicine (ABIM) by four internal medicine physicians (that was later amended to include fraud, RICO and unjust enrichment claims), the ABIM filed a motion to dismiss the physicians' Complaint. Much of their argument hinged on the ABIM's supposition that
"... plaintiffs cannot establish that initial certification and MOC are two separate products capable of being tied; plaintiffs’ own allegations demonstrate that initial certification and MOC comprise complementary, continuous components of ABIM’s certification. They are not separate products. For that reason as well, plaintiffs’ claims that ABIM has unlawfully created and maintained monopoly power in violation of Section 2 of the Sherman Act fails. Because they have not met their burden of plausibly alleging the tying of two products, they cannot point to any unlawful (i.e., anticompetitive) conduct.
In defense of their argument, the ABIM attorneys attempted to use two franchise analogies citing Krehl v. Baskin-Robbins Ice Cream Co. and the rejection of a tying claim brought by a Subway franchisee to plead the case that initial certification and MOC are not separate products, but rather one product.

On 30 April 2019, the plaintiffs' opposition to ABIM's Motion to Dismiss was filed. The plaintiffs' attorneys wasted no time countering ABIM's motion to dismiss (starting on page 2 with references removed):
"ABIM relies mostly on franchise cases to argue MOC is not a separate product. Putting aside for the moment that all of the cases it cites were decided on a fully developed factual record at summary judgment or after trial, ABIM’s franchise analogy misses the mark. Physician care is not Baskins Robbins ice cream, and patient treatment is not a Subway sandwich. Hence, the notion that ABIM can force MOC on internists in service of an illusory nationwide standard unilaterally imposed by ABIM offends the free market principles that are the hallmark of medical care in this country. Plain and simple, MOC is a failed and extremely costly product that ABIM, using its undisputed market power, forces internists to buy. Its exploitation of internists is further aggravated because while ABIM deceptively wraps itself in the mantle of self-regulation, it has no legislative, regulatory, or administrative authority at all and answers to no one, and certainly not to the internist community it misleadingly claims to be self-regulating."
Read the whole rebuttal.

-Wes

P.S.: Unless you feel your medical practice is  just a fast food franchise, please support the physician-plaintiffs in this important legal effort to end MOC nationwide for all subspecialties. 

15 comments:

Anonymous said...

Strong rebuttal. I',m looking forward to the trial and getting the ABIM leadership on the stand. Hopefully the ABIM crumbles and then comes the indictments of them, present and past.

Anonymous said...

Physicians need to morph from whiners to winners.
Suggest all who read, comment or lurk on this issue go here: https://www.gofundme.com/practicing-physicians-of-america

You know what to do. We CAN win this.

Anonymous said...

Let the blowout commence!

IndependentPhysician said...

I am stymied how we have outsourced Governmental Functions to Private Corporations layering a Profit over the activity, with no mechanism to ensure representation of the forced "members" (think Prisons and Border Detention Centers and Tent Cities as well). At the same time they gain Tax advantages. Midwives and Nurse Practitioners and Providers clarly are not Obstetricians or Gynecolgists.

That such requirement and membership extracts large financial payments by a Physician to even practice at all, and that such "Guidelines" promulgated continually impact viability for Independent Physicians, transforms it from a Professional to Economic activity.

A study in the Journal of the American College of Obstetricians and Gyencologists states (to paraphrase a logically equivalent conclusion they stated):
https://journals.lww.com/greenjournal/Pages/articleviewer.aspx?year=2011&issue=09000&article=00003&type=Fulltext#pdf-link

So, basically they make it up.

That Board Certification is now required at many Hospitals to privilege for Vaginal Deliveries speaks to the contradiction which equates: online Midwife courses, passing a National Test created by the benefactors of such Certification (Midwives), and 5 proctored deliveries to be hired and paid performing Prenatal Care in a Rural Health clinic which collects $250 per Prenatal visit for Medicaid; to $30-70 collected by a Board Certified Physicians for a visit.

Legislatures allowing Corporations to dictate Medical Practice proscripts Independent Physicians from challenging inaccurate, irrelevant or even capricious rulings.

Anonymous said...

MOC is BS! Everything needs to be investigated involving the ABMS/ACGME/NCQA quality assurance/testing cartel and all their corporate/NGO sponsors/proxies.

Anonymous said...

Yes, they do make it up! All of it. From ABMS MOC science to the (outside) executive decisions that led to the monetization and politicization of every one of these once "non-profit", "charitable", "apolitical" corporations.
That is if you believe the AMA and ACP could ever have created such idealistic "non-pecuniary" organizations such as the ABIM that claims to work for the profession and the public. There is no vote by the profession on anything (never has been and never will be) and the public has been misinformed about the MOC debacle through tax-benefited corporate propaganda.

Corporate Temples of Doom said...

Not only do the ABMS and their ministries of (MOC) propaganda force doctors into "take it or leave it" coercive labor contracts, but we must not forget that 350-400 million unwitting and duped patients/consumers in America must also prostrate in front of these 24 highly-monetized corporate data temples.

Property Rights and the Dispossession of Physicians said...

The Willy-Nilly "Self" and the Illegal Seizure of Property and Rights

Is certification a property right that has been taken away by the ABMS and 24 medical boards acting in concert with powerful corporate forces?

Physicians paid/pay for that property (certification). How can it be legally taken away, especially in a milieu/culture where the ABMS medical boards all claim "self-regulation"?

Where is the self (physician) in certification and where is the property (certification) paid for and arbitrarily repossessed/seized?

The "self" took an oath to do no harm, which must also include that same "self", which is harming itself. How can such dispossession/harm of "self" and "profession" be legally and morally justified?

How could the introduction of a new product like MOC be allowed to turn the tables on lifelong certification?

Medical specialty certification was never tied to employment or reimbursement in the past. It was never intended to be a coerced product. Certification was never intended to be tied to employability or reimbursement by payers.

But now it is. Specialty certification was promised and sold as voluntary. It was to be voluntary and to be a voluntary certification for life. This was a pact/contract that was gradually sold over time. Nobody would buy in otherwise.

The ABMS along with the ABIM violated their pact in taking away lifelong certification. This is a substantial violation and breach of contract/trust. ABMS'/ABIM's word is obviously not any good. If their word is no good, their associated organizations are no good. All of them.

When an individual or a corporation is no good doing harm to patients/physicians harming/ruining life and profession the only thing one can do is sue.

All physicians should get behind the ABMS lawsuits. They sold out the profession and public (patients) for a bag of tarnished silver.

W.O.R.M. said...

The next fabrication I'm waiting to hear about from the ABIM crime bosses or their consiglieres (in their defense) is that the whole board certification process is VOLUNTARY. Physician incurred expenses are nothing more than extorted protection money...for their very livelihoods. I'd have a trifling more respect for "Don" Baron and the others if they were at least up front about it. I can only hope that His Honour Robert Kelly recognizes that our system of justice is also on trial here. Equal protection? We'll see.

RICO BARON CASINO AND OFFSHORE RETIREMENT CLUB INVESTMENT BANK (It's so Dickensonian) said...

I'd like to get my share of that $5.7 billion back from the ABMS MOC monopoly game bank accounts. ABIM, with its 77 million US dollars in surfeit cash from certification (MOC) over-payments, it is fair to say that RICO and self-enrichment charges (complaints) are warranted against the ABIM.

In the "high stakes certification game" HSCG®, ABIM MOC sticks it too you and the dice are fixed to roll a lucky number for RICO BARON'S CASINO and CAYMAN ISLAND BANK.

The game is rigged. Brem, Benson, Kimball, and Cassel made sure of that. And RICH Baron has been there since before 2001 helping set up the self-enrichment programs the he is benefitting from now. (HIRE A DEAN SCAM TO SET A COMPENSATION PRECEDENT! Chris Cassel, ABIM CEO from 2003-2013. ABIM Foundation's executive slush fund and second founder and Chairman 1999.)

Tell us it isn't a monopoly game. Pay up or you can't play. And the MOC payment stings. Over 30 years of it. It's like landing on Boardwalk and Park Place with all the hotels added. And they levy the excise tax (extra fees) just for "being in the vicinity" and needing certification to work (play the game).

Richard T Bosshardt said...

I read as much of the rebuttal as I could, or felt I needed to. After a few pages of legalese, even on an issue I have an interest in, my eyes begin to glaze and my attention wanders. Even so, nicely done. I think the counter arguments were on the spot and I believe I can sense some panic in the ABIM as they contemplate the implications of this suit. As I have posted in the past, I am cautious about throwing out the ABIM or ABMS altogether because I value my board certification and am concerned how the public will be protected from inadequately trained physicians in the future. My specialty of plastic surgery in particular is rife with posers seeking to enrich themselves and drink from the cosmetic surgery trough without troubling themselves with proper training.

DrWes said...

Richard T Bosshardt -

"I am cautious about throwing out the ABIM or ABMS altogether because I value my board certification and am concerned how the public will be protected from inadequately trained physicians in the future."

I appreciate these sentiments. I, too, am concerned. But if physicians were the priority, then health policy would be created to make more of them available to patients instead of massively expanding the third party middle layer that stands between them and their patients. The companies like insurers, group purchase organizations, pharmacy benefit managers, and EMR companies are some of the biggest darlings on Wall Street. Profit drives the market. Doctors are not profitable, except to our regulators who now allow poorly trained "mid-level" providers to staff ICU's and ER's in place of doctors. Why? Because there are not enough of us.

The AMA, ABMS, AAMC, NBME - all members of the ACGME which lies hand-in-hand with the American Hospital Association has been more concerned about their political and financial agendas (to include "Health Care For All" than the quality of care of our patients. The world has changed.

Doctors have not forgotten.

Anonymous said...

The ABMS/ABIM specialty boards do not regulate physicians or protect the public. The states do.

The medical specialty boards are trade associations with non-profit boons that were grandfathered decades ago and ignored by the IRS. ABMS abuses and violatory acts have been ignored by the DOJ and IRS.

These are facts.

The public is not being protected by the ABMS. Far from a public safety champion, the ABIM has become a medical industrial complex financial juggernaut. A self-enrichment collection agency. They coerce/extort exorbitant payments from physicians.

The facade of public servant (testing company) at the ABIM has served primarily as a front to support their self-dealing political action committees, secret lobbying, and partisan/corporate healthcare agendas.

Mix in the social engineering projects to justify the transfer of millions of dollars to the Foundation (Medical Professionalism in the New Millenia) and you have a corporation that fits the profile of scam/Ponzi scheme where physicians and the public (taxpayer) serve as the willing or unwilling suckers. (It is merely a matter of how informed one is.)

The only policing of physicians that they (medical boards) do is used for bullying tactics, force of intimidation, political show and financial self-benefit.

Anonymous said...

To win against moneyed interests, you need money. The federal/state courts in Pennsylvania do not have the cleanest of track records with many members of the bench/justice departments forced to step down for impropriety/corruption or under investigation for impropriety/corruption.

The world has changed, but old-fashioned graft and the roots of corruption have not. The ABIM is rooted in Philadelphia politics/finance/judicial and media power and acts as conduit/lever for Washington and acts as a proxy for corporate/political adventurism in the industry/industries that ABIM claims it "takes no money from".

Unknown said...

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