Wednesday, March 16, 2016

ABIM Slapped With Motion to Dismiss - Files Extension Request

In its ongoing suit claiming copyright infringement against a Puerto Rican physician, American Board of Internal Medicine (ABIM) lawyers of Ballard Spahr were slapped with a Motion to Dismiss on 11 March 2016 for failure to state a claim upon which relief can be granted and for filing their suit well outside the 3-year statute of limitation for the alleged copyright infringement. The details of the motion can be reviewed at the link provided.

In turn, lawyers for the ABIM have filed a request for an extension on 12 March 2016 to file their response. The details of their response will be interesting to review, especially since practicing US physicians are witnessing first-hand how the ABIM, once little more than a testing agency, exploited the learned helplessness of physicians accustomed to years of regulatory Stockholm Syndrome to take advantage of fellow colleagues for personal and political gain.

Thanks to the Penn State mentality inherent to group-think corporate medicine, it now appears the ABIM plotted a strategy using intimidating strongman search and seizure tactics to invade at least one physician's home to obtain "2,000 emails and audio and other communications from physicians disclosing exam questions." Officers of the ABIM unilaterally justified the sanctioning of 139 physicians and the distribution of heavy-handed and psychologically irresponsible letters of reprimand to thousands more as "a message and a deterrent" while pocketing millions for themselves and their corporate clients.

But questions remain and loom larger now. What were the terms of the deal cut between Dr. Arora and the ABIM? Why won't the ABIM release this settlement agreement to the defendant? What personnel and methods were used to track down the Puerto Rican physician via his email communications some five years later? Why were records shredded? Why were physician attendees at the Arora course targeting when similar ACP-sponsored courses and course directors do not undergo similar scrutiny? None of these specifics were aired in the public ABIM press release about the incident.

Until these are explained and justified, I believe all US physicians should refuse to participate in Maintenance of Certification (MOC) until a full investigation and accounting of the ABIM's actions and financial conflicts takes place. Members of hospital medical boards and Medical Executive Committees should insist these questions are answered by the ABIM. After all, hospitals and insurers need practicing physicians focused on patient care more than they need the ABIM, ABMS, or its member boards insisting we take strong-armed tests for their political and personal gain.

To me, it increasingly appears legal challenges are mounting for the ABIM, the ABMS, and their officers as this story unfolds. As a result, I suspect there will be a pivot away from the ABIM/ABMS MOC product by the medical establishment to the new Medicare Physician Payment scheme, MACRA. But MACRA contains parts of the ABMS MOC program with its untested "performance improvement" quality metrics and patient-survey directed care that repeats a similar theme: data-gathering to pad corporate bottom lines with expensive, time-consuming, and unnecessary metrics that add little to no value to direct patient care and, instead, adds costs and detracts further from much-needed patient care.

It is time to learn the whole truth behind MOC, not just for physicians' benefit, but for our patients, too.



Ed Rico said...

As Ms. Jacobs touts as one of her career accomplishments, "court awarded monetary damages and permanent injunction against defendants as the ultimate sanction for failing to participate in discovery" in ABIM v Mittman, it appears that a similar outcome would be an appropriate response by the Court due to ABIM's inexplicable failure to provide the ABR Settlement documentation as part of required discovery in the Salas Rushford litigation.

After taking more than 5 years to bring this action against Dr. Salas Rushford, why does ABIM need more time to respond to the Motion to Dismiss? They've had plenty of time to develop their case. It's easy when someone else (i.e. ABIM Diplomates) is paying the bill for your high-priced litigation team.

DB said...

Dr Rico: I agree completely with you and Dr. Fisher.
According to sources close to the case, Ballard Spahr attorneys reported to Richard Baron in the ABIM's 2008 lawsuit against Frontrunners. It’s fair to say Baron was one of the right hand men, along with Eric Holmboe for Christine Cassel and Lynn Langdon. These clever women and Bob Wachter knew how to pick the right fall guys. Make Baron next in line for the top ABIM position in exchange for taking some level of risk. And Eric Holmboe gets a highly paid position at the ACGME. Who arranges all these things?

The ABMS and ACGME are closely connected and tightly governed by a small elite group who don’t let other see the whole. It truly is run and financed like a cartel. The key words used above about the ABMS and ABIM are they do it all “for personal and political gain.” This is public fraud as most of these bad actors are all involved with the government and get paid by the taxpayer in one way or another--through tax benefit, direct salary or federal government grants.

Hara Jacobs was lead attorney for the ABIM against the board prep company Frontrunners, but her victory as stated above is rather hypocritical as you suggest, but may be also highly inaccurate. Jacobs states Dr. Mittman would not participate in discovery and according to her site ABIM was therefore awarded a permanent injunction and monetary damages for Frontrunner's non-participation in the discovery process.

Fast forward to today. Hara Jacobs and Rivera-Soto, while representing ABIM, are not participating in the discovery process against Dr. Salas Rushford. I have the same question. Why are they stalling? Will ABIM lose by default and have to pay? Why the delay? What plans are they hatching? This time physicians are watching. We want to know how Ballard Spahr and ABIM are spending physicians’ money. I don’t like what they are doing.

Anonymous said...

Wes, I find it fascinating that in Dr. Arora's deposition, it seems Hara Jacobs could not entrust the task to her experienced lead attorney in New Jersey--a former New Jersey Supreme Court judge--to take a simple deposition from an old man in a "one-count copyright infringement case."

Jacobs spent a lot of ABIM's money--physicians' fee money. Physicians paid her 600 dollars per-hour fees plus per-diem and lodging(?)to make the four-hour round trip drive to New Jersey.

Or maybe she went over to New York for fun and shopping as she happened to be in the neighborhood. Ok, but it seems Ms. Jacobs is indeed making a living off of physicians’ money. Are we covering the entertainment and trips to the bar as well? Or were there a lot of answers that Rivera-Soto demanded from Jacobs in their confers?

Examine the facts.

Judge Rivera-Soto handled the deposition very well and showed a great deal of poise and clarity of mind about everything. Jacobs’s presence was a “redundant debit” from the pockets of the ABIM clients who pay the bills. Isn't anybody upset about these excessive legal fees? All Jacobs did was intimidate Dr. Arora. She added nothing, except discomfort and distress for Dr. Arora and the Salas- Rushford legal team. River-Soto expressed himself well when speaking of the bad taste in Dr. Arora's mouth and where it came from when trying to speak in Jacob's presence. "She does this to men," Rivera-Soto said sardonically. I don’t think it was just a bad taste joke.

Look at what the ABIM and Ballard Spahr are doing. Everyone needs to know. Consider all the endless legal fees for years and years destroying lives over the politicization and monetization of medical science. And ABIM holds fast to its secrets and lies concerning it all! They need to maintain control.

Jacobs did not bring any of the documents asked for to the deposition.

Was this some kind of stalling technique to suck the defendant's (Salas-Rushford) monetary reserves dry? They did the same kind of tactics to drain Arora dry as well forcing him to relinquish to Hara Jacobs in 2010. We paid for her victory lap. No wonder Dr. Arora remembers the woman that invaded his home and now invaded his simple deposition.

Imagine now tacking on "Judge" Rivera-Soto's fees. It was a very expensive day or two plus the prep time for "physicians suing physicians" because it pleases the ABIM, Rich Baron and Lynn Landon to do so. It will be another two million dollars lost in legal fees if the case goes to court with suit and countersuit.

The ABIM is trying to distract and bleed Dr. Salas Rushford dry as they are diverting the critical attention and bleeding physicians dry.

Dole said...

Who will pay? Who will stop it?

Physician's fees will have to go up to pay for the lavish lifestyles of the rich and famous politicians and lawyers connected to the ABMS and the flagship specialty boards run and operated by Rich Baron.

Are the insurers aware of all the risks they are taking? Who will report this racketeering and public fraud to them?

This present legal case is time-barred; it has no merit, no real proof, and there are serious flaws with the ABIM's behavior in the investigation and legal actions taken that border on the illegal. There is obvious fraud on the part of the ABIM to the core. Especially when you consider the other "bad actors" that the ABIM is hiding from us. Yes, I hear and see what is going on. And I want it stopped now.

The ABIM has spent millions in legal fees. They have recovered nothing. How much did Arora pay? I suspect he paid nothing. It would be an easy bet that the ABIM is lying about this as well. After all, they don't lobby when they are actually lobbying. Was it more than x%. Well, actually it was full-time lobbying. And when they are caught intentionally obfuscating their finances, they say the messenger is lying and they are too discordant sounding.

We are being led to believe the ABIM is all "fudge and vanilla" regarding finances.

As the ABIM pays out millions in staggering losses protecting "expressions of science," they are certainly going broke doing it. They paint positive earnings as negative in their thirty year-old deferral scheme. The ABIM breaks the backs and minds of hard working physicians over what? A scam euphemistically called MOC.

They talk about how financially sound they are when the decline in revenue and investment portfolio assets are breathtaking. They give me butterflies the drop is so precipitous.

Another lie. ABIM even declares that their dark money used for politics, personal inurement and penthouse whim is as clean as the tests they give.

Here's what is true. I think the ABIM needs a different kind of lawyer.

We cannot sustain this mockery of medicine any longer. We cannot support the ABIM and ABMS' lies and the injury to others. We cannot participate in what we should know as adults is doing obvious harm.

Anonymous said...

Bradley Mittman of Frontrunners defended himself in his case fighting the ABIM. He is not an attorney. But he was young enough and had legal skill enough to hold his own against an experienced attorney and powerful firm. A slap in the face for Ballard Spahr.

I understand Frontrunners then turned it around and sued the ABIM for violation of the Sherman Act citing restraint of trade. Perhaps he would have won if not for the case/damages being time-barred.

The press release in ABIM v Sarah von Muller was also mischaracterized as well as the countersuit against ABIM.
But please note that 2016 Go Frontrunners is still in business. Is permanent injunction to mean "permanent" or does it mean until it is appealed.

Notice that ABIM's lead trial attorney Hara Jacobs boasts of a monetary settlement against Frontrunners, however in the Arora Board Review "sabre rattling" case--as someone expressed it aptly--Jacobs does not include a monetary settlement at all, which contradicts the ABIM press release where they specifically mention that "ABR is paying damages to the ABIM."

Perhaps one of more of the statements in the press/media releases would not have been printed if asked to state these things first under oath.

Citizen Kane said...

The Jaw Bone's Connected to the Neck Bone.

We used to have accountability or at least the appearance of attempting to do the right thing. What has happened to us as a society and as members of ethical professional membership societies?

A new conundrum and syndrome is created in an apathetic world where no one stands up and speaks out about simple right and wrong. Few people speak and it is even a more rarified club of individuals who act on the obvious violations of ethics and the law. Why is that?

Wes, I believe your Jerry Sandusky/Penn State scandal references were appropriate considering this ABMS/ABIM scandal has been going on for decades. No one does anything. We find ourselves in a similar place where those in power at the ABIM and ABMS and authorities either refuse to do anything or it is just ignored by all. We find ourselves in an almost lawless condition and we wake up each day feeling less and less human as we accept the abnormal moral state as normal.

A new cynical philosophy is born from the overloaded brain and sympathetic nervous system which still cannot see reality, cannot see directly, finds it impossible to understand or transform. There are sayings that go along with the delusional state we find ourselves in and clues to get back in touch with the truth and mystery, but we are too busy. We cannot follow or even remember a golden rule to do no harm.

What a psychological morass we find ourselves in as citizens and residents of the greatest country on earth when we can no longer see reality. There is not better example of this delusional state removed from life, reason and conscience when we fail to find easy and direct solutions to simple problems. Many of the problems we face can be solved if we are transparent, open and honestly communicate.

But instead we find corrupt individuals living in a false reality destroying medicine and other peoples lives--all supported by society and medical boards consisting of true believers and passive enablers. And in that backdrop, on that stage we find a handful of maniacal executives and directors along with a team of powerful lawyers suing the pants and shirt off of physicians to protect not public safety but a testing empire. Now we are discovering that along with that testing empire comes powerful lobbyists, compromised government officials and judges, and the rise of a secret police and security state that grows along side of it in the shadows.

Can we readily admit or even entertain the notion that we live in a dichotomous society that has strong elements of work and morality, yet at the same time we find ourselves living in a country which shows the telltale signs of being in steep moral and intellectual decline.

Should not penalties be meted out and criminal laws enforced for the fibs and corrupt deeds of politicians, lawyers, judges, law enforcement, and the professional medical bureaucrats who also readily lie and cheat.

A question to consider. Why did not Penn State official, board members and trustees not shut Jerry Sandusky's suspected seduction of young children down and pornographic lives of all those involved. Sandusky was under investigation down in 1998? You do not need an indictment and conviction to see the obvious ethical questions and appearances of conflicts, let alone the criminal behavior.

This is an example of the sharp contrast between moral behavior and proper behavior at the ABMS and revelations looking through the ABIM's keyhole.

Anonymous said...

The ABMS turns a blind eye toward the predatory practices of the ABIM and the other medical boards. Why?

Ed Rico said...

Anon 02:56, is that a rhetorical question? There can be little doubt that these policies from ABIM, ABP, etc are not coincidental, they are all carefully coordinated from the top down as part of the mission of the Quality/Certification cartel. There has never been a more effective business model at creating an enormous revenue stream while completely failing to provide any objective evidence of value added by a product or service. If ABIM suddenly disappeared, the only way the public would know would be the unanimous celebration by 200,000+ practicing internists and IM subspecialists and the sudden run on Kleenex on Walnut St.

Anonymous said...

History of the American Board of Internal Medicine: "In the founding documents, ... the AMA and ACP acknowledged that, in order for the public to be confident about the designations of board certification, the board issuing those certifications must be separate from the membership societies in order to mitigate political pressures that might emerge during the standard-setting process", from chapter 4, The Role of the Specialty Boards in Promoting Professionalism, The Case of the American Board of Internal Medicine by Braddock, Holmboe and Cassel, 2013, in Patient Care and Professionalism edited by Catherine deAngelis.

With the revolving door between ACP and ABIM (exemplified by Cassel who served as ACP president 1997-1998, then ABIM president and CEO 2003-2013), and the collusion between ACP board review courses and ABIM, it's not clear that the ACP is separate from the ABIM. Internists' requests for transparency regarding the massive transfer of testing fees to ABIM foundation, political lobbying by ABIM, etc have been ignored by ACP, our membership society, which appears to be another political organization supporting ABIM more than practicing internists.
Most of the subspecialty societies appear to be more supportive of their physicians than ACP is of internists.

I'm wondering if someone can file under Freedom of Information Act get further details about how US Marshals determined that Arora was a criminal or how/why they got involved with the ABIM testing corporation. This appears to demonstrate Cassel has high level government connections for her political lobbying at the expense of physicians.

Anonymous said...

I'd like to know these things also. The lack of transparency is outrageous.

Anonymous said...

Let's be clear, if anyone has any misconceptions, the federal government had no interest in Dr. Arora or Bradley Mittman, or any physicians taking tests or what study groups they belonged to. The ABIM/ABMS and the testing/security cartels they represent are largely responsible for harming thousands of lives.

It is clear to many that there is also political wrongdoing when a tax exempt organization attempts to influence government officials involved in the health care industry through active incessant lobbying. It is not free time when someone does not show at the office, while getting paid a million dollars for work never done at the ABIM. It is public fraud.

It appears that fear-mongering and voiceless physicians helped promote Cassel, Baron, Holmboe, Weiss and Wachter's partisan platforms and corporate agendas. It is outrageous when we think that Dr. Arora or a Bradley Mittman faced civil attack from the ABIM when they and the ABMS should have been under the scrutiny of the DOJ and IRS.

Washington elites like Christine Cassel, Richard Baron, Robert Wachter, Eric Holmboe, and executives at many of the medical boards have walked free, unscathed when they should have been penalized by laws that keep trade and politics fair.

The DOJ put the wrong foot forward when they choose to indict and prosecute World soccer executives/promoters and not throw the book at the ABIM and ABIM for fraud of a much more pernicious and harmful nature.

Anonymous said...

Blank US Marshall's form 285 with instructions.

Ed Rico wrote..."There can be little doubt that these policies from ABIM, ABP, etc are not coincidental, they are all carefully coordinated from the top down as part of the mission of the Quality/Certification cartel." I agree with this statement and verified it, so for me it was a rhetorical question.

So, was it a unanimous show of hands from the ABMS and ABIM boards to persecute physicians for studying with rogue board review courses.

Some of the pertinent court documents asked about are available on Pacer for free. You need an account. They are all civil cases. Look up American Board of Internal Medicine. 2009 ABIM v Rajender K. Arora, Arora Board Review, Anise Kachadourian and John Does 1-50.

It is filed in the Eastern District of PA, case no. 2:09-cv-5707-JCJ. It was filed under seal with the federal court. Document 11 filed 01/07/2010 is USM form 285 which the federal marshals and Hara Jacobs of Ballard Spahr used to enter Arora and Katchadourian's homes, seize property and issue a temporary restraining order on Drs. Arora and Kachadourian (and John Does 1-50).

The issuance according to form 285 was good for district no. 50 from how it appears on the signed form. The search, seizure and restraint was not issued for ABR alone as you can see on the form and other legal documents. The ABIM wanted John Does 1-50.

When you add up the few hundred + physicians who were sued or received sanctions and revoking of certifications this far exceeds "John Doe's 50" in number by two hundred +. The ABIM's low shot went out of bounds. Add in the 2700 physicians who were issued letters of reprimand (a sanction) to be placed in their "ABIM files" and the ABIM leaps off the field far from was authorized. These 2700 "highly selected" attendees were sought out as well for "being there" and "not calling an ABIM security hotline." Were many of these IMG's who were politically and legally vulnerable to attack.

The sheer numbers of sanctions and sued docs appears to have far exceeded the numbers and implied restrictions placed on the judges order. It was not a carte blanche order. Why did not anyone argue this excess?

An unknown fact perhaps, but there was nothing to tell to the unvetted ABIM security hotline about irregularities in studying for the boards at ABR. Real eyewitnesses of Arora's courses never heard what the ABIM "spy" claims they heard.

The whole ABIM legal demolition derby toyed with and then rammed down the door protecting physicians' dignity and then shot holes in their constitutional rights. It was totally unfair and unjust--all of it.

This persistent horror from the ABMS' "execute before facts branch" of governance utilized their infamous secret security police. This was not disclosed. It is illegal. This "deep state" approach to patient safety, and its cover-up--whether prosecuted or not--will ultimately serve to implode both branches of the "quality assessment" governance and the boards--which condoned it--and all those members turned their kind faces away from horrendous crimes committed on its clients.

The ABIM lost any moral compass it had in its reckless behavior toward its clients and highly irregular entanglements with greed and politics--which were in total conflict with its primary mission to serve the public. The ABIM and ABMS violated its non-profit status and broke its legally binding "pledge of honesty" with the IRS and the American taxpayer.

Anonymous said...

There are several physicians who attended the Arora Board review course - paid by their residency programs. They received the famous reprimand letters for no wrong doing. Now news is filtering through that even though they were informed that those letters were removed from their files, these physicians have not been able to pass subsequent MOC or further specialty certification exams despite repeated attempts. More and more money going to the ABIM and ABMS. Sounds like another lawsuit in the wings. Has anyone else also heard or personally experienced this?