ABIM and Its Appellate Court Arguments

The unofficial transcribed 3rd Circuit Appellate Court arguments held 23 Oct 2020 between Mr. Philip Curley (lead attorney representing the physician Plaintiffs) and Ms. Leslie John (representing the American Board of Internal Medicine (ABIM)) are now available for US physician review. The appeal was filed after the 3rd Circuit District Court dismissed the Plaintiffs complaints before discovery because, as Mr. Curley states in those arguments:

"And that's what the district court did here that was incorrect; it concluded that as a matter of law, there could only be one product, and it shouldn't have arrived at that or any other conclusion in our judgment. It arrogated to itself a determination of the ultimate fact issue which is out of the separate products. It was indifferent to our allegations. It improperly weighed evidence. It explicitly made findings. It used those words, and had accepted ABIM's affirmative defenses that are outside of the Complaint. All those are in violation of the proper standards in ruling on a 12(b)(6) motion to dismiss. And we respectfully point out to the Court that this is not a motion where only conclusory recitations of law are pleaded or claims rote elements are simply recited. This is a highly detailed and factual Complaint, and we are entitled to discovery and the right to prove our claim. So we respectfully ask that the district court be reversed."

While I made some earlier observations when only the audio file of the arguments became available, there are a number of other observations that I believe are important from those arguments.

ABIM Never Answers the Question About Forcing or Monopoly Control of Certification

On Page 27 of the transcript, Judge Chagaras asked Ms. John the following question: 

"Could I just ask a 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; and isn't the feasibility of practicing without certification ultimately a question of fact?"

Rather than answering the question, Ms. John responds:

"I think you can first look to the facts in this case. So, for instance, Doctor Manalo 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. So I think that is one way you can look at it."

Recall that in the Amended Complaint, Dr. Manalo has been unable to become employed as a result the fact that he refused to participate in MOC. The judge presses further:

"But, Counsel, what I'm talking about is it may not be so voluntary. If 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 that's more appropriate for summary judgment?"

And of course, Ms. John forgets the fact that many physicians are grandfathered and don't have to perform MOC, but states:

"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, and at the time of the initial purchase here ABIM had a program for certification; and aspects of that program were initially passing your initial Board certification exam, and then that that certification would expire after a set period of time, ten years, without -- unless that 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, and that was the periodic demonstration of knowledge."

Unfazed, the judge then asks:

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

To which Ms. John answers as only a lawyer can:

"Yes, your Honor. So, for instance, 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. You only need a license in your state 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. Some -- 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."

Fortunately, the judge did not back down, politely recognizing the doublespeak:

"Well, but I mean 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 that the allegations, don't they say you -- a lot of places won't let you practice. Your malpractice rates are going to go higher. Reimbursement is 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?

We should note that as long ago as 1991, Dr. Benson (the first President of the ABIM) wrote in the Annals of Internal Medicine that certification "is no longer an option for the physician entering the marketplace." A later ABIM President agreed, Dr. Christine Cassel, writing in a climatology journal article in 2008 that "many physicians really feel that board certification is not optional." Finally, the Arthritis Care and Research article from 2019 concluded in no uncertain terms that "Board certification, which started as a voluntary achievement and remains so in theory has become involuntary in practice, making participation in MOC programs mandatory for many if not most physicians in order to maintain employment and clinical privileges, or receive reimbursement." 

We should note, then, that ABIM's own leaders have conceded the issue that it's own attorney in these arguments would not. 

ABIM is Not a Professional Society

And then there was this exchange from Mr. Curley's final rebuttal statement:

So another fact question that arose from your inquiry was professional society. Is ABIM even a professional society? We don't believe it is, but in any event, there certainly is nothing in the Complaint that speaks to that. That's another example of an affirmative defense that ABIM is trying to raise, standards, professional society, internists aren't keeping up, all sorts of things that can only be resolved after discovery.

Given these revelations made from the arguments before the Appellate judges. It is hard for this physician to not be encouraged by what transpired before the Appellant Count judges. I'd love to hear what others think as well.

One thing's for sure: if the Appellate Court refers this case back to the District Court for discovery, Pandora's Box will open for the ABIM and all other member board of the American Board of Medical Specialties.

-Wes

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.

-Wes

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.

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.

-Wes

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.

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.

-Wes

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:

"IN 2016, ABIM MADE AVAILABLE TO CERTAIN ABIM EMPLOYEES AN EARLY RETIREMENT SEVERANCE PACKAGE WHICH INCLUDED A PROVISION FOR YEARS OF SERVICE. REBECCA LIPNER, ABIM SENIOR VICE PRESIDENT OF ASSESSMENT & RESEARCH, QUALIFIED FOR THIS EARLY RETIREMENT SEVERANCE PACKAGE. IN AN EFFORT TO ENCOURAGE HER TO STAY, ABIM OFFERED REBECCA LIPNER A RETENTION BONUS TO REMAIN EMPLOYED WITH ABIM AS SENIOR VICE PRESIDENT OF ASSESSMENT & RESEARCH THOUGH 6/30/2018. THE 2-YEAR AGREEMENT, SIGNED IN MARCH 2016, PROVIDED FOR THE PAYMENT OF A RETENTION BONUS WITHIN 30 DAYS AFTER 6/30/18 IF CERTAIN TERMS AND CONDITIONS, AS PROVIDED IN THE AGREEMENT, HAD BEEN FULFILLED. 

AS OF 6/30/18, THE TERMS AND CONDITIONS PROVIDED FOR IN THE AGREEMENT HAVE BEEN FULFILLED. IN COMPLIANCE WITH TERMS OF THE SIGNED AGREEMENT, IN JULY 2018, ABIM RESEARCH, A ONE-TIME RETENTION BONUS IN THE AMOUNT OF $300,000. AS PER INSTRUCTIONS FOR SCHEDULE J, $300,000 WAS INCLUDED ON SCHEDULE J PAID REBECCA LIPNER, ABIM SENIOR VICE PRESIDENT OF ASSESSMENT..."

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.

-Wes

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.

-Wes

(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. https://doi.org/10.7326/0003-4819-114-1-59

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.

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 Pacer.gov, 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)

SUMMARY

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.)

CURRENT STATUS

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)

SUMMARY

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.

CURRENT STATUS

There have been multiple entries on Pacer.gov 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)

SUMMARY

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.

CURRENT STATUS

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)

SUMMARY

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.

CURRENT STATUS

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.

-Wes

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.

Physician Plaintiffs File Reply Brief Against ABIM

The four Internal Medicine physician Plaintiffs-Appellants filed their latest Reply Brief in the class action lawsuit against the American Board of internal Medicine (ABIM) today. That reply brief summarized the alleged tying arrangement of ABIM board certification to "Maintenance of Certification (MOC)":

"ABIM’s monopoly power over certifications is undisputed. Certifications are an economic necessity for a successful medical practice. From 1936 to today ABIM certifications have assessed one thing: postgraduate medical education. 

Realizing that only so much in certification fees can be extracted from new residency graduates, MOC allows ABIM not only to charge internists a one-time certification fee at the outset of their practice, but to force internists to purchase MOC by revoking their “initial” certifications if they do not, requiring them to pay inflated MOC fees throughout their entire decades-long careers. The two products are separate because, in ABIM’s own words, MOC “means something different” from certifications and “speaks to the question of whether or not an internist is staying current.” (¶ 53). MOC’s true purpose, however, is to create a lucrative revenue stream for ABIM, resulting in hundreds of millions of dollars in new fees. (¶ 65). 

There are other products—not sold by ABIM—that help internists stay current, including continuing medical education products (“CME”). (¶ 54 (“MOC serves substantially the same function as CME”)).1 

MOC is ABIM’s fourth attempt to sell a product distinct from certifications to help keep internists current. Thousands of internists bought three previous voluntary MOC products separately from their certifications as part of ABIM’s Continuous Professional Development Program (“CPD”). (¶ 25). “Grandfathers” today also purchase MOC separately from their certifications. (¶ 35). Purchases by internists of MOC, CME, and other non-ABIM CPD products to stay current, demonstrate distinct demand for those products separate from the demand for certifications. ABIM’s earlier versions of MOC failed to generate the hoped-for revenue because ABIM did not revoke certifications of internists who did not buy them. That ABIM’s voluntary products were unsuccessful reflected internists’ preferences to buy products from others to stay current. (¶ 55). ABIM ensured, however, that MOC succeeded by tying it to “initial” certifications and making it mandatory. (emphasis mine) Plaintiffs’ claims do not threaten ABIM “standards” any more than ABIM’s earlier voluntary MOC products did. Plaintiffs ask only that ABIM’s illegal tie be severed and that MOC once again be voluntary."

In addition, the filed brief explains the basis of the RICO claims made by the physician Plaintiff-Appellants against the ABIM: 

"After ABIM was unable to generate hoped-for fees from its first three voluntary MOC products sold as part of its CPD Program, it realized it must force internists to buy MOC. ABIM did so by revoking the certifications of internists who did not buy MOC. In furtherance of its scheme, ABIM waged a campaign of fraudulent misrepresentations 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 improves patient outcomes. As a result, ABIM has collected hundreds of millions of dollars in MOC fees under false pretenses."

Finally, in regard to the unjust enrichment claim dismissed by the earlier District Court judge:

"The district court’s sole rationale for dismissing Plaintiffs’ unjust enrichment claims is its conclusion that ABIM “did not ‘force’ Plaintiffs to purchase MOC.” A-41. ABIM similarly repeats its argument that internists “chose” to “pursue and maintain their certifications.” ABIM Br. 54. Plaintiffs have already debunked this argument, and clearly allege “forcing” notwithstanding the erroneous conclusions and arguments of the district court and ABIM. 

ABIM points out that certifications are not required for licensure. But it does not deny certifications are required for admitting privileges, insurance, and other requirements of a successful medical practice, and accordingly are an economic necessity. Finally, the district court opinion in In re Avandia Mtkg., No. 2007-MDL-1871, 2013 U.S. Dist. LEXIS 152726 (E.D. Pa. Oct. 22, 2013), does not support ABIM, as the unjust enrichment claim there failed for several reasons not pertinent here, most importantly because, unlike MOC, the purchases were voluntary. See ABIM Br. 55-56."

With this filing, it is clear that the class action lawsuit filed by working physicians against the ABIM is far from over. Read the whole Reply Brief here. 

-Wes

To support the physician plaintiffs in this ongoing lawsuit, consider contributing to their GoFundMe page.

ABMS Board Certifications: One Product or Two?

It is the question at the crux of the antitrust cases against the ABMS member boards: Is board certification one product that has merely been updated or does board certification contain more than one product? If more than one product, is the second product tied, or leveraged, to force the purchase of the second product?

Let me be the first to admit I am not a lawyer, much less an expert on antitrust legal issues. (That is stating the obvious.) But I am a physician who has felt first-hand the squeeze applied to my bank account and psyche by the monopoly power enjoyed by the American Board of Medical Specialties (ABMS) and their member boards over the many years I have had to endure their repeated testing.  

For most US physicians, board certification is anything but voluntary as the ABMS and their member boards suggest. The history of board certification did NOT require MOC when hospital credentials, insurance panel participation, and malpractice coverage began requiring the lifetime credential before 1990. Only AFTER the 1990 change in "rules" imposed by ABIM that their certification was suddenly "time limited," did physicians become trapped and had to purchase MOC. For this reason, I know if I do not repeatedly "re-certify" by paying the ABIM their fees and performing their continuing professional development programs (however they have been morphed over the years) I could lose my ability to work as a physician - the profession I have practiced for over thirty years.

It is that nauseating "squeeze" that has lead a number of physicians to file suit against these powerful (and we now have learned, highly financially conflicted) tax-exempt US specialty "medical boards." Personal luxury condominiums with chauffeur-driven town cars, off-shore retirement accounts, first-class and spousal travel to resort meeting locations offered to a few lucky and highly-marketed physician "experts" has kept the process going for years at the expense of their less well-to-do and politically connected colleagues. 

Maintaining this monopoly has come at a huge direct cost to working physicians. The cost of hiring felonious "test security" personnel, lobbying Congress, hospitals, and the insurance industry has seen the costs for "re-certifying" mushroom over 654-766% in the last twenty years.

Since the onset of the coronavirus pandemic, with the exception of a video chat on Fox News by Richard Baron, MD, the President and CEO of the American Board of Internal Medicine (ABIM), the medical boards have largely gone underground. Instead, they are content with letting their 400+ lawyers work to preserve their fiefdom by arguing  that board certification is one "voluntary" product.

Where Does the Precedent-setting ABIM Antitrust Lawsuit Stand?

In December 2018, the ABIM was sued by four internal medicine physicians who claimed the ABIM engaged in illegal antitrust activities. That lawsuit was later amended to include racketeering and unjust enrichment claims. But that lawsuit was never tried because a senior district court judge sided with the ABIM on September 26, 2019 that initial certification and Maintenance of Certification are one product, "ABIM certification:"

"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."

With that decision, the plaintiff's antitrust claims were dismissed with prejudice, but the racketeering and unjust enrichment claims were dismissed without prejudice.  So the plaintiffs appealed the district judge's ruling to the Appellate Court level on 4 May 2020 and argued the judge ruled erroneously:

"Plaintiffs allege: internists differentiate between certifications and MOC; ABIM has always sold them separately; ABIM treats the two products as separate; ABIM bills and accounts for certifications and MOC separately; and other vendors sell CPD (continuous professional development) products like MOC that keep internists current without selling certifications. Case: 20-1007 Document: 22-1 Page: 21 Date Filed: 05/04/2020 13 The district court ignored these allegations and erroneously concluded that certification and MOC are one product. A-29. In doing so it arrogated to itself determination of the ultimate factual issue, improperly weighed facts, resolved inferences against Plaintiffs, and considered “facts” asserted by ABIM outside the Complaint, all of which are improper on a motion to dismiss. See Flora v. County of Luzerne, 776 F.3d 169, 175 (3d Cir. 2015); Kedra v. Schroeter, 876 F.3d 424, 433 (3d Cir. 2017) ; Sweda v. Univ. of Pa., 923 F.3d 320, 326 (3d Cir. 2019)."  

In response, the ABIM has argued otherwise in their recently filed brief:

"The district court properly dismissed plaintiffs’ Section 1 tying claim because plaintiffs failed to plead factual allegations plausibly demonstrating that MOC and initial board certification are separate products capable of being tied. The district court considered each of plaintiffs’ factual allegations and, drawing upon the case law and common sense, rejected plaintiffs’ argument that MOC and initial board certification should be considered separate products. Instead, the court concluded that plaintiffs’ allegations make clear that there is no demand for MOC separate and apart from the demand for board certification. ABIM offers a single certification program for internists to demonstrate their excellence. That program includes initial certification and MOC. As plaintiffs acknowledge, ABIM is entitled to set its own standards in determining who qualifies for its recognition." 

But the ABIM conveniently never mention the grandfather issue in their brief - that is, the discriminatory practice of exempting older physicians certified before 1990 from having to perform MOC. Instead, they claim in this brief that "ABIM has always sold MOC together with Initial Certification." Senior physicians like myself know nothing could be further from the truth. 

The Plaintiff's response to the ABIM's brief is due July 27, 2020. If the opposition to motion to dismiss the lawsuit against the American Board of Radiology (another ABMS member board also sued for antitrust violations) is any indication, holes in the ABIM's argument that initial certification and MOC are a  "single product" could soon surface and lead to the Plaintiffs finally getting their day in court.

We can only hope.

-Wes

P.S.: Physicians wanting to support the Plaintiffs in their David-vs-Goliath effort are encouraged to contribute to the GoFundMe campaign created on their behalf.

MOC and the Racist Origins of Grandfathering

From Paul G. Mathew, MD via Facebook: 

A hearing was held yesterday by the Rhode Island State Legislature's House Finance Committee regarding H7171 Article 20 on Healthcare Reform. One of the topics of discussion was the Interstate Compact, which will allow physicians to practice medicine across state lines. This will be especially helpful in providing tele-health services to areas of need. One major concern is that the compact is written in such a way that a physician is defined as someone who is compliant with the American Board of Medical Specialties Maintenance (ABMS) of Maintenance of Certification (MOC) Programs. The American Medical Association (AMA) has passed numerous resolutions that MOC compliance should not be a requirement to practice medicine (https://assets.ama-assn.org/sub/meeting/documents/i16-resolution-309.pdf). This would be the first time that obtaining a medical license would require a physician to pay this non-profit private monopoly for a product that is expensive, time consuming, and has little evidence that it improves patient care.

 

MOC serves to increase the cost of healthcare, reduce patient access to healthcare, and contribute to physician burnout. As recently as May 28, 2020, the AMA has taken a public position that compulsory MOC participation contributes to physician burnout (https://www.ama-assn.org/practice-management/physician-health/12-factors-drive-physician-burnout). In addition, MOC compliance is discriminatory based on age, race, and gender, as time-unlimited certificate holders (grandfathered physicians) are excluded from participation, and are 80% white and 70% male (https://www.aamc.org/system/files/reports/1/factsandfigures2010.pdf).

 

The term “Grandfathering” has racist origins as the term was used in an effort to limit people of color from voting. As such, it should not be used by name or in discriminatory practice. (https://www.npr.org/sections/codeswitch/2013/10/21/239081586/the-racial-history-of-the-grandfather-clause). Granting one group of physicians elite status of this nature is particularly concerning given our society's current focus on systemic racism and gender discrimination. The danger here is that if the Interstate Compact is successful, national rather than state medical licensure may be on the horizon, which should not be tied to MOC compliance.

 

As Director of Legislative Affairs of the National Board of Physicians and Surgeons (NBPAS.org), I submitted testimony requesting that NBPAS also be recognized as a re-certifying entity. Physicians must have a choice in board re-certification providers between evidence based (CME) NBPAS re-certification or MOC based ABMS re-certification. I hope that my physician colleagues will join me in voicing our concerns to the leadership of our societies and policymakers that MOC compliance should not be required for practice, and in the case of the Interstate Compact, should not be a requirement for licensure.

View more about MOC, its harms, and inherent racial and gender discrimination here.

-Wes

 

Will the History of US Physician Board Certification Sink MOC?

In the closely followed Siva v American Board of Radiology (ABR) antitrust case (1:19-cv-01407), the Plaintiff recently filed an Opposition to Dismiss the First Amended Complaint (FAC) earlier this week. At issue in this case is whether intial certification and MOC are a single product or two separate tied products. In this newest legal docket entry, the Plaintiff added additional arguments from a recently decided Viamedia, Inc. v. Comcast Corp. antitrust tying opinion recently decided in the Seventh Circuit Court that demonstrates the importance of the history of US Board Certification is to the tying claim made by the Plaintiff:

ABR also virtually ignores the new Sherman Act, Section 2 tying opinion, Viamedia, Inc. v. Comcast Corp., 951 F.3d 429 (7th Cir. 2020), in which the Seventh Circuit reversed summary judgment for defendant, rejecting the same single product arguments ABR makes here. First, Viamedia holds that whether there is separate demand must be assessed before the tie is imposed, and not after. Viamedia, 951 F.3d at 469 (“the market must be ‘assessed at the pre-contract rather than post-contract stage’”) (quoting Philip E. Areeda & Herbert Hovenkamp, Antitrust Law: An Analysis of Antitrust Principles and Their Application, ¶ 1802d6, at 89 (4th Ed. 2018) (“Areeda & Hovenkamp”)).

This guts both premises of ABR’s single product theory: (1) that certifications should be analyzed post-MOC, with MOC viewed as a component of a “multi-stage” process (ABR at 8), rather than before ABR imposed its tie forcing radiologists to buy MOC or have their certifications revoked; and (2) as to MOC, “the relevant inquiry” is whether there currently is conflated demand for a single CPD product (MOC) and certifications as a result of ABR’s tie (id.), rather than inquiring whether there was separate demand by radiologists for CPD products before ABR tied certifications and MOC. See Viamedia, 951 F.3d at 469 (consumers “viewed the services as separate prior into entering into their present [tying] contracts with Comcast”). The Viamedia imperative to assess demand before the tie makes perfect sense because focusing on demand after the tie is forced on consumers inevitably rewards the defendant who has already successfully reduced competition, the very goal of the illegal tie. Viamedia makes clear that a defendant like ABR who forces consumers to purchase a tied product, cannot then parlay its own coercion into evidence of lack of separate demand for a product that the victimized consumers would not otherwise purchase, exactly what ABR argues here. (ABR at 8-9, 11).

Additionally, the new brief suggests the adhesion contract physicians must sign when enrolling in MOC (or one of its Continuous Professional Development (CPD) successors) are irrelevant to the antitrust issues being decided by the court:

ABR argues repeatedly that Dr. Siva “knew” from “the outset” based on a “contract” that MOC was tied to certifications. (ABR at 3-4, 10, 11). In doing so, ABR misrepresents information and documents about MOC that Dr. Siva received “after he purchased his certification.” (¶ 255; emphasis added).7 Dr. Siva alleges that neither his application for certification nor the certificate itself referred to “initial” certification or to MOC. (¶¶ 250, 252- 253). (emphasis mine) The FAC also alleges no contract obligating radiologists to buy MOC; nor does any such contract exist. Radiologists are forced to buy MOC because if they do not, ABR revokes their certifications, without which a successful medical career is impossible.

At any rate, ABR’s argument is a diversion. Awareness that a tie exists when the tying product is bought does not make the tie any less coercive. Radiologists’ knowledge of ABR’s monopoly power and leverage cannot absolve ABR of its illegal tie.

There is no question the heat is being turned up of the American Board of Radiology and this new legal precedent set by Viamedia prioritizes the importance of the history and original intent of board certification (that is, of assuring adequate residency training) is an important factor in establishing the illegal product tie that ABR has leveraged with MOC against its diplomates for their financial benefit.

ABR has approximately three weeks to respond to these latest arguments.

-Wes

PS: Physicians wishing to help the ongoing legal efforts to end MOC for all subspecialties are encouraged to contribute to the GoFundMe page created to support the plaintiffs.

How MOC is Contributing to the Demise of Physicians

Dr. Torie S. Sepah, MD on the KevinMD blog:

Now, one could argue, what’s $500 a year to a physician? Well, it adds up to $5,000 in ten years, at which time I’ll shell out another several grand to take the recertification exam.  Contrary to popular belief, physicians aren’t exactly rolling in the dough. In fact, 8 out of 10 physicians under 40 carry over $150,000 in medical school debt.  It all adds up: the medical license fee, the DEA fee, the specialty association fee.  Is this extra $5,000 really necessary, and if so, what is it for?

Here’s what it is not being used for, to protect what our board certification stands for.

My board certification in psychiatry doesn’t mean much these days because NPs and PAs are also board certified in psychiatry without attending a medical school, completing an ACGME residency program, passing the three-part oral exam in order to become eligible for the written exam in psychiatry, and of course not participating in MOC or taking our rigorous written exam every ten years.

To make sure that the world knows they are board-certified, they often embroider it on their white coats. And now, in 24 states, they can practice medicine independently with board certification in a specialty like psychiatry.

More physicians are waking to multitude of harms caused by Maintenance of Certification (MOC).

This is why multiple antitrust lawsuits have been filed against the ABMS member boards. Right now, the American Board of Radiology has filed a Motion to Dismiss the first amended complaint filed in the lawsuit against them. They argue that MOC and initial certification are all one product (certification) and therefore the anti-trust claim filed has no merit. As physicians, we know better. The detailed 79-page amended complaint explains the differences of initial certification from all other "continuous professional development products" (like CME, MOC, "continuous certification" and NBPAS recertification) and explains why ABR's contention that MOC and initial certification are one product is wrong on many levels. We'll see if the judge in that case feels the physician plaintiff has sufficiently argued his case to move this case to discovery.

The American Board of Internal Medicine also had the original District Court lawsuit dismissed. But that first-pass lawsuit has now been appealed to the Third Appellate Court. That appeal adds lots of new evidence supporting the differences between initial certification and the "continuous professional development" program that is MOC and the ABIM's monopoly control, racketeering, and unjust enrichment that has followed as a result. The ABIM response to that filing is currently due July 6th.  

Our own medical boards have repeatedly poked a sleeping bear with MOC payment and testing requirements. Those requirements have harmed physicians and limited access of care to patients. While this is not an easy path to find justice, the best victories are those that are hard fought with lasting and meaningful results.

-Wes

Appeal Filed in Physicians' Ongoing Lawsuit Against ABIM

"ABIM has created a lucrative new revenue source by forcing internists to buy MOC. The new MOC revenue has not been used in the interests of the internist community, but to serve the economic interests of ABIM management, including overly generous compensation, ABIM’s lavish pension plan, and purchase of a $2.3 million condominium used by ABIM management."

- From the Brief of Plaintiffs-Appellants filed yesterday

It was almost six years ago the story of ABIM's $2.3 million condominium was told. It was a tale of corruption, greed, and the laundering of physician testing fees to create the ABIM Foundation using the smokescreen of repeated physician testing called Maintenance of Certification (MOC®) as a mark of a physician's "professionalism." Working physicians, however, knew better. They felt first-hand the financial and emotional toll this ever-changing program caused. MOC® was always about the money, but most physicians were too afraid to speak up lest they lose their jobs. Today MOC® remains a story of adhesion contracts to force payments to the numerous conflicted interests of the medical publishing, credentialing, device, pharmaceutical, and hospital supply line industries in exchange for the physician data it generates.

The irony of Richard Baron, MD, President and CEO of the ABIM and ABIM Foundation discussing disinformation on Fox News from the comfort of his own home is lost on few US physicians. So is the irony that the insurance industry is poised to make a windfall on the unaffordable insurance law they helped author.

These conflicts have come at a very stiff price for many United States physicians, nurses, and medical technicians who toil on the front lines without sufficient personal protective equipment (PPE) today. MOC® and the data entry it required fed Group Purchase Organizations and the insurance industry the data they needed to squeeze the suppliers of materials and the suppliers of care. As Siddhartha Mukherjee, MD, DPhil explained in his recent New Yorker article, its all a game of assuring a sizable profit margins for these the little-known supply line organizations who receive kickbacks in return for their efforts:

“Hospitals typically don’t order masks as individual buyers,” he told me. He spoke deliberately, with the slightest Texan drawl. Instead, they negotiate contracts as members of a Group Purchasing Organization—representing hundreds or thousands of hospitals—and, as Bowen explained, the G.P.O. always “chooses the cheapest bid.”

Yesterday the Brief of Plaintiffs-Appellants was filed in the 3rd Circuit Court of Appeals against the American Board of Internal Medicine (ABIM) regarding MOC®. In that Brief, the physician plaintiffs argue that the earlier District Court erred in dismissing (1) the anti-trust tying claims with prejudice, (2) the monopolization claims, (3) the racketeering claims, and (4) the unjust enrichment claims made by the plaintiffs concerning MOC. The details of the clearly-written 78-page brief argue why.

As health care workers struggle to cope with our current US supply line shortcomings, the US physician MOC® story takes on new meaning. Now more than ever, US physicians deserve their day in court concerning the exploitation they have endured because of MOC®.

If this case finally proceeds to discovery, we might just find the real truth about MOC® after all.

-Wes

P.S.: Working physicians are encouraged to contribute the the GoFundMe page supporting the physician plaintiffs in this ongoing case.

Two ER Physicians Lend Their Opinion on Reopening the Economy

Addendum: YouTube brought down the videos included in this blog post because they claimed it violated their terms of use. I found that very disturbing that non-anonymous US physicians were silenced during these unprecedented times. I believe we should promote (and not silence) legitimate, respectful, critical debate. Whether right or wrong (and certainly many of the facts delivered have been thoroughly debunked by others) their viewpoint opened peoples' eyes.

Because nothing is erased on the internet, readers will find links to the videos on a different platform below the YouTube video placeholders.

"Typically you quarantine the sick. When someone has measles you quarantine them. We’ve never seen where we quarantine the healthy."

"We’ve tested over 4 million… which gives us a 19.6% positive out of those who are tested for COVID-19. So if this is a typical extrapolation 328 million people times 19.6 is 64 million. That’s a significant amount of people with COVID; it’s similar to the flu. If you study the numbers in 2017 and 2018 we had 50 to 60 million with the flu. And we had a similar death rate in the deaths the United States were 43,545—similar to the flu of 2017-2018. We always have between 37,000 and 60,000 deaths in the United States, every single year. No pandemic talk. No shelter-in-place. No shutting down businesses…"

Dr. Daniel W. Erickson of Bakersfield, California, is a former emergency-room physician who co-owns, with his partner Dr. Artin Massih, Accelerated Urgent Care in Bakersfield, CA north of Los Angeles. They conducted a press conference regarding their opinions about reopening the economy and withstood many challenging questions by a hostile press. I encourage my interested readers to watch the entire hour-long press conference:

Addendum: Links to the above videos can be found here:

Part 1: https://vimeo.com/412698864

Part 2: https://vimeo.com/412699764

In a follow-up ABC news piece it is also interesting to note, "Dr. Erickson also claimed that state health department officials also agreed with his statements about reopening. 23ABC News reached out to the state to see if officials agree with Dr. Erickson about reopening and they have no(t) responded back."

We should acknowledge these physicians test patients and have a vested interest in doing so. Whether testing will ever really clear the way toward reopening the economy is debatable in my opinion, given that every test has false negative and false positive results. Yet testing is the popular narrative now.

As we sit in our living rooms staring at Netflix as the economy begins to creak forward, perhaps we should ask ourselves when we're told our salvation will occur after we test billions of people worldwide (which will never happen, in my opinion), who stands to benefit? Likewise, who benefits by promoting more fear and the isolation/distancing narrative?

-Wes

Rethinking the COVID-19 "Pandemic"

The front page headline of the Wall Street Journal this morning read: "Stocks Rally in Face of Downturn."

Why?

Perhaps they know something we don't? Or have we been too manipulated by fear to look critically at what has just happened thanks to a little-known RNA virus?

I realize that most of the blog posts here lately have been critical of the American Board of Medical Specialties and their 24 subsidiary medical specialty boards, in large part because they rely on rote memorization of trivial facts as a means of gauging physician "quality" and "professionalism" (as they have deemed to "redefine" the term in their 2002 widely-published self-written white paper). Clinical experience gained only after years of complicated and uncertain patient interactions has always been immaterial to these rent-seeking data-collecting medical specialty member boards. But what I'm focusing on now is something much more important for the practicing physician that can't be measured by a standardized test: the ability to think critically in the face of the unknown. After all, most new patient encounters require the ability to assimilate vast amounts of information and distill it clinically for the benefits of an individual patient that has an infinite number of possible clinical co-founders.

We have to remember that 27-year old journalists and younger brilliant physician sycophants of the computerized test, as much as they may mean well, can be easily manipulated by political, economic, and social agendas that have been engrained in our society for years. As clinical physicians, is our job to listen to politicians and economists and those young physicians, or to think critically about an incredibly complicated non-linear (and non-exponential) biologic event that has just swept the world and resulted in the shuttering of so many economies and left over 22 million unemployed in the United States alone?

In the beginning of this evolving WHO-defined pandemic, the world were enamored with mathematical models from economists and pundits based in complicated assumptions - most of which were (quite frankly) guesses and never truly gauged to existing well-known viral illnesses like seasonal influenza. The World Health Organization (WHO) proclaimed early on that this new coronavirus had an incredibly high 3.4% mortality rate. New phrases were quickly introduced into our daily vernacular by the mainstream and social media like"flattening the curve," and "social distancing" as images of refrigerator trucks to house the dead were pushed to our cell phones. But that mortality statistic, we're now finding, was markedly overblown.

Perhaps more important is the way this virus has managed to seek out and impact the most medically vulnerable of our populations: those in close living environments or the socially disadvantaged with serious preexisting medical conditions like obesity, diabetes, lung disease, heart disease, cancers, and blood dycrasias. The elderly in particular, have been remarkably vulnerable to succumbing to COVID-19, in large part because they carry these preconditions far more frequently than younger patients. Health care workers, too, see a skewed population that can seem overwhelming at such a time since we are subjected to an unknown pathogen with an uncertain transmission, prevalence, and unknown lethality. We see the people dying and our bias is reinforced: this must be something BIG.

So how do we gain perspective and reliable data? Do we turn to mainstream media, or print scientific journals that are slow to react and limited in their scope, or do we turn to each other knowing each of us is struggling with the same unknowns? Or maybe that, too, is complicated.

Fortunately, thanks in large part to the internet, the world is quite literally, our oyster. It is time as one British pathologist John Lee has appropriately suggested, that we begin to examine the evidence with "skepticism and vigorous debate." The COVID-19 death toll, and how it relates to our more typical seasonal flu that often impacts hospitals, is far from clear. There is nuance involved in proclaiming a death rate when those dying from a virus are intermingled with those dying with a virus.

Clinical physicians should begin to critically question our national narrative, given these recently updated facts regarding the COVID-19 pandemic from a Swiss physician, each of which are carefully referenced. Look them over. Carefully. Perhaps putting the current situation in perspective from other parts of the world will be more helpful to our patients and their economic and psychologic strife than  taking remarkably expensive and unproven computerized tests created by unaccountable bureaucrats that mean absolutely nothing.

-Wes

Image above from: Lee, J. "How to understand - and report - figures from "COVID Deaths."

COVID-19: A Way Forward

Since the beginning of the coronavirus pandemic and the ongoing Personal Protective Equipment (PPE) shortages I have quietly wondered, "Where is the American Medical Association (AMA)?" Why weren't health care workers and their patients the FIRST consideration of the AMA rather than the making of CPT codes? Is it because the words "physician" and "patient" do not appear in their mission statement?

With an estimated 22 million people currently unemployed in the United States and with states making plans to reopen their economies, a medically cogent path forward out of this pandemic is desperately needed.

It is with that background that I had the opportunity to read this opinion piece by Paul Kempen, MD, PhD that I took the liberty of republishing here. Admittedly, there are no perfect answers right now, but we all need to do our part to bring some semblance of normalcy to our lives again since this situation is likely to continue for some time (I have taken the liberty of making minor edits and have added a few hyperlinks for clarity):

Personal Health is a Personal Responsibility to Enable National Health

Paul Kempen, MD, PhD

"It really amazes me as a physician and health care expert, that while the government and general population expect doctors, nurses - yes, ALL hospital health care workers (HCW) down to the janitor - to go to work every day to care for severely and clearly infected patients, the expectation that the general population cannot even perform daily tasks in low risk environments seems severely misplaced. Being out of doors has even been declared “illegal” in some places. We have seen the country “closed for business” and production capabilities, lives and personal welfare, decimated. If all HCWs are able to work in clearly infected environments, why are citizens unable to protect themselves in low risk environments? Why are there not clear and effective educational and production mechanisms for ensuring regular daily living activities promoted in all media at this time? I have NEVER seen a public educational clip on HOW to correctly wear a mask but have repeatedly seen “experts” without and improperly wearing masks. Are factories and businesses still (really) unable to provide PPE and distancing between workers? WHY? If we can put a man on the moon, we cannot provide education and PPE?

Of course, the lack of Personal Protective Equipment (PPE) has been the serious issue. Government/CDC/WHO “Expert Action” has been unable to address to date the singular outstanding shortage of N95 masks, gowns, and hand disinfectant, or provided accurate and specific instruction/education on personal protective measures. Instead, concentrating on ventilator production (to treat disease) and “testing” to identify infections remains “the answer”. In medicine, we typically test to identify infection based on symptoms - as a healthy, negative tested individual is not protected by the test (due to false negatives) and can become infected by those providing tests to hundreds per hour.

These deflective and reassuring measures apparently resulted politically from “overstated need” by “hot spot Governors” looking for “quick answers” and sound-bytes. Even our CDC “health care experts” got it wrong (or was this merely political decisions): CDC statements initially recommended that civilians should NOT wear masks (because of the shortage), when clearly, masks are the single most important protection against air-born, respiratory infection dissemination. The first thing I personally did when I heard of COVID in January was to order ten N95 masks. Even today, 4/16/2020, three months after the first diagnosed infections were reported in January, this country still does not have enough N95 masks for every citizen. Why? Sending in Navy Hospital ships to NY and LA flies in the face of “Carnival line contagion” episodes: After admitting only 40 patients, the USNS Comfort was infected. The USS Mercy was similarly infected. Will it be also “quarantined”? The medical personnel would have been better utilized on land based stations - but that big red “X” would have not been able to provide the political statement and reassurance in NY harbor.

We have been through infectious hysteria before: The HIV epidemic in the 1980s, which led to important “universal precautions” for self-protection. The SARS (2003) and MERS (2012) Corona infections occurred and should have led to testing and treatment mechanisms decades ago. Flu epidemics occur every year and kill 30-60,000 people-just like COVID and our lessons here should be applied for all future flu seasons-which are coming. Needed measures now include production and education to enable return to economic stability - the ONE essential of any country “at War”:

Instead of forcibly pulling citizens without masks off of a subway train, the CDC and government experts should have ramped up N95 mask production in January to insure at a minimum, one N95 mask per citizen per week. (Editor's note: To be fair, hind sight is aways 20/20) Make N95 masks universally available at no cost to everyone now, including child sizes. They can be disinfected repeatedly by baking at 180 degrees F for 30 minutes. This should NOT require 30 days for each state to insure production for each member of state’s society. (This is much cheaper than $1,200 checks for every tax payer!) Educational commercials should appear hourly and instruct ALL citizens how to wear masks appropriately, the difference in mask types and identify mask type abilities to protect you. Mandating everyone appearing on television to be wearing appropriate masks correctly, as examples to foster compliance, is as possible as legally forcing everyone on an airplane to undergo instruction on how to fasten a seat belt in 2020.

Surgical and home-made masks catch (only most) personal, exhaled droplets and protect to a limited degree those around you. N95 masks will, when correctly worn, eliminate 95% of particles in your INHALED air from reaching you if worn correctly. HCW are “fitted” for N95 masks when hired under OSHA mandates, that is, specifically instructed in proper use. Civilians need this instruction also.

Cut your beard off, shave daily to maximize N95 mask “fit” and effectiveness. Wear masks at all times when not alone and do not touch your face unless immediately after hand washing. Wash your hands frequently (whenever possible contamination occurs), shower and change clothing daily to reduce personal contamination.

If you show signs of infection, contact your doctor for definitive advice and wear at minimum a surgical mask at all times while avoiding others. DO NOT go to hospitals or drive through testing sites if healthy - these sites are high risk areas and those testing hundreds of civilians per hour may well be a significant vector for transmission from infected to those heathy. The tests require invading your body and with unknown hygiene - i.e. out there on the streets where there is no ability to wash hands between individual tests (and I am sure they do not change PPE between each person, given the shortage).

Testing, currently unavailable and with unknown reliability, should be reserved for those with probable/known infection and done in facilities with hand washing between individual tests, unless self testing kits become readily available and are dropped off/mailed in bio-infection labeled and protective packaging (which seems unlikely or reliably possible for general populations).

In addition, we should be testing ALL deaths for COVID presence, instead of declaring all deaths automatically as COVID, as appears to be the current methodology. This is needed to yield REAL numbers.

Insure production of ALL treatment/prophylaxis drugs in sufficient quantities and allow doctors the ability to practice prevention, prophylaxis and treatment tailored to the individual patient and their wishes with all available products - including “compassionate” and “off label” prescriptions.

Serious COVID infections occur in under 5% of all infections. Healthy children and young adults appear resilient. Release this mostly-healthy “herd” now, or when the “surge” is over and create the “herd immunity”. In any “war” the young and healthy are sent to fight and maintain the economy, but please, also provide the needed weapons to them (masks and sanitizers). They will volunteer! Perhaps this group is resilient because they are self-immunized by yearly non-lethal common cold coronavirus encounters which account for 20% all yearly colds creating crossover immunization/disease mitigation.

It is time we all recognize your health is YOUR responsibility. Quit smoking, overeating, passing “joints” and crack pipes and other high risk behaviors. The “opiate epidemic” suddenly disappeared from the news with the COVID19 emergence but it is not gone! As a nation, we must insure our economy and production to maintain wartime abilities. Not just tanks and jets, but drugs, testing, ventilators and PPE should have national priority for “in-country” self-sustaining production. Most drugs marketed in the USA are made from Chinese imported materials at this time. This must change. We must take charge of ourselves and our national security in war and disease. We must stop the media and government hysteria and work with facts, real facts, and not politically motivated reassurances made in the moment as acts of reassurance. Restart the economy to provide PPE and drugs tomorrow for all who need them.

In 1933, the worst year of the Great Depression, President Franklin Roosevelt stated in his inaugural address: “So first of all, let me assert my belief that the only thing we need to fear is fear itself - nameless, unreasoning, unjustified terror, which paralyzes needed efforts to convert retreat into advance.”

This was great advice then and seems especially pertinent on 4/16/2020 before we create another modern great depression. If we are at war, we need our economy to provide for the common good and protection of life, liberty and the pursuit of happiness. The media must be used to serve the people and not continue to create paralyzing terror."

I welcome thoughtful comments to this piece.

-Wes