Plaintiff Lawyer Explains ABMS Medical Board Lawsuits

This past Saturday, A Zoom video conference sponsored by Citizen Health.io was held with the members of Practicing Physicians of America's (PPA) board and an invited speaker, Laura Feldman, one of the plaintiff attorneys with Robinson Curley, P.C. - the law firm that has brought suits against several American Board of Medical Specialty (ABMS) member boards. For my reader's convenience, I took the liberty of transcribing the first portion of the conversation that explained the ABMS Maintenance of Certification(MOC) antitrust lawsuits underway and their status. The transcription begins at approximately 06:12 of the video and participants at this point include myself (WF), Judith Thompson, MD (JT - President and Chairman of the PPA's board), and Laura Feldman (LF):

WF: Awesome, Well I think many of the people who have joined PPA or been involved with the Maintenance of Certification (MOC) process have realized there’s a lot of problems with it. We have problems that we now think may have been illegal and as a result of that, some physicians have been harmed through this process. For that reason, a number of physicians ultimately filed suit in December, 2018 against the American Board of Internal Medicine (ABIM).

That suit is a very complicated and far-reaching lawsuit and we’ve been fortunate enough to have Laura Feldman from Robinson Curley, the law firm that brought the suit…

JT: Wes? Wes? I hate to interrupt you for a minute. Listeners, please verify that your device is on mute. There is apparently background noise that’s interfering with other peoples’ ability to hear. Thank you, Wes.

WF: Yeah, no worries. So anyway, in December of 2018, four internists filed suit against the American Board of Internal Medicine and the basis of the suit were two allegations, main allegations anyway. It is a “class action lawsuit,” and it involves antitrust issues and racketeering issues. I thought it would be smart since most physician don’t know what these things are, to invite Laura to give us a quick, brief rundown what “antitrust” and the RICO portions of this lawsuit mean so that maybe we could have a better understanding before we go into more detail.

LF:Absolutely, so Dr. Wes thank you so much for the invitation and for including me in this group. I am delighted to be here and really delighted to be a piece of this litigation.

As Dr. Wes mentioned, the first suit challenging MOC was brought against ABIM. And it is a class action – an opt-out class action – and what that means is that any physician whether a DO or MD that has been forced to purchase MOC to maintain their initial certification is part of the class unless he or she chooses to opt out. There’s a couple of exceptions: if you’re related to the judge or affiliated with one of the boards, you’re not going to be part of the class – but otherwise you’re in the class unless you chose to withdraw.

Subsequent to the ABIM lawsuit, two plaintiffs filed suit against the ABPN which is the Psychiatry and Neurology board, … (smiling) Dr. Dixon is excited…, and one radiologist filed suit against the American Board of Radiology and we, along with our co-council, are the attorneys challenging those boards’ MOC programs. So over the next couple of minutes I’ll be brief. I’ll go over the Complaints, what’s happened so far in the suits, and the next steps in the litigation.

So as Dr. Wes mentioned, our main plaintiffs brought claims of anititrust violations and also unjust enrichment. And then against the ABIM, there’s also a racketeering claim.

So first, antitrust. So the main plaintiffs in the litigation accused the three boards , ABIM, ABPN, ABR, of illegally tying the initial certification product to the continuing, the MOC certification product. And what they’re alleging is that doctors are forced to purchase MOC and jump through all the hoops that MOC requires – its not just handing out some money – they’re forced to purchase MOC to order to maintain their underlying certification that they purchased. No in addition to this antitrust claim that is a tying claim, they’re also bring up a monopoly claim, alleging that these three boards have illegally created and maintained a monopoly power in the MOC marketplace stymying the efforts of competition like NBPAS (National Board of Physicians and Surgeons) and making it so that any other competition can’t enter the marketplace.

Now each of the three suits brings a state common law which is called “unjust enrichment” accusing the boards of unjustly enriching themselves at the expense of doctors like you. I mean, taking money off of your backs and unjustly enriching themselves.

Now racketeering, or the RICO claim, against ABIM is stating that ABIM waged a campaign to deceive the public about MOC’s benefits. So you’ve heard about their allegations if its benefits to physicians and to patients and to the public as a whole, and part of that racketeering claim is their inappropriate campaign to suggest that MOC constitutes "self-regulation." I know it’s a big buzzword. The complaint alleges ABIM misrepresented what passing MOC actually shows: the tests’ ability to actually demonstrate doctors’ qualifications or their lack thereof.

So those suits have been filed, we’re in litigation mode. Each defendant has filed a Motion to Dismiss, and those motions are fully briefed. What that means is that we have submitted to the Court our opposition to get rid of the suits and those briefs are pending before the three respective courts and we’re waiting for all three of those courts to decide whether or not to dismiss the lawsuits. We feel like we’re filed really strong briefs. You can read them online if you’d like at ABIMlawsuit.com, ABPNlawsut.com, or ABRlawsuit.com. So that’s where we are in the litigation. We’re waiting for them. We expect it could take several more months and in the meantime, we are preparing for discovery, which is the phase of litigation where you share information – we’ll be seeking information from the board and third parties and they’ll be seeking information from us. So sit tight.

WF: Let me ask a quick question if I may. What do you think the timeline is to get a decision on any of these lawsuits?

LF: Good question. We wish we knew, litigation is like a lot of hurrying up and waiting, so we’re busy, busy, busy, then we wait. They we’re busy, busy, busy, then we wait some more. We expect ABPN may be the last ruling we get because we were just assigned a new judge that just came onto the bench here in Chicago. So we’re guessing, I mean we’re looking at crystal ball, that we’ll get ABIM’s ruling or a ruling in ABR first. It’s our position that we’d be lucky if we hear something by the end of the year, but some judges turn thing around quicker than others. We just don’t know if we’re number 2 in the pile in the judge’s docket or number 200.

WF: Great, thanks so much.

An extensive question and answer session was held later in the video conference where viewers could post questions, and can be found at about 27:10 and contains additional valuable insights about MOC and the litigation underway.

I hope this has been informative and will continue to update my readers with the status of these suits as information on them comes available. If you find these efforts useful, please consider contributing what ever you can to the voluntary GoFundMe page in support of the plaintiffs. Hopefully together we can end MOC's stranglehold on working physicians nationwide.

Thanks-

-Wes