Wednesday, June 12, 2019

More Legal Trouble for ABIM

Last Thursday, US District Judge Katherine Hayden ruled in favor of Jaime Salas Rushford, MD's motion to sever and transfer his counterclaims and third-party complaint against the American Board of Internal Medicine (ABIM) to the District of Puerto Rico.

For those unfamiliar with this case that began in 2014, a brief summary is included in the Opinion (references removed):
ABIM is an Iowa corporation that oversees the board certification process for internal medicine physicians, which includes administering a one-day, computer-based exam given annually on different days at testing centers nationwide and abroad. Salas Rushford resides and practices medicine in Puerto Rico, where he (was) registered to take the 2009 ABIM exam. In preparation, he enrolled in a preparatory course given in New York by Arora Inc., a New Jersey corporation that gives courses to physicians seeking board certification.

In December 2009, ABIM sued Arora (the “ABIM-Arora action”) in the Eastern District of Pennsylvania, alleging that the company “unlawfully obtained ABIM’s secure [e]xamination items by mobilizing course attendees to divulge the contents of the [e]xamination” in violation of federal copyright law. (Am. Bd. of Internal Med. v. Arora, No. 09-05707). That complaint also named John Doe defendants, “a presently unknown number of past and/or present candidates for Board Certification who have complied with [Arora’s] requests…to provide secure, copyrighted [e]xamination content to Arora for further dissemination.” The ABIM-Arora action settled and was dismissed in mid-2010. (June 11, 2010). Non-identical tests are offered through the month of August, which offers early test-takers the opportunity to alert later test-takers about content. To guard against this, ABIM requires that before they take the exam, all candidates must sign a “Pledge of Honesty” whereby they promise “not to disclose, copy, or reproduce any portion of the material contained in the Examination.”

It took ABIM until October 2014 to sue Salas Rushford in this district, alleging in a one count complaint that he was among those John Doe “past candidates” who unlawfully shared exam questions with Arora. Salas Rushford moved to dismiss for lack of personal jurisdiction. Early in 2015, while Salas Rushford’s motion to dismiss was pending in this district, ABIM sued him in the District of Puerto Rico in a parallel action, asserting a copyright infringement claim identical to the one it filed here. In both actions, Salas Rushford filed counterclaims against ABIM and a third-party complaint against the ABIM Individuals alleging malicious breach of contract, commercial disparagement under the Lanham Act, 15 U.S.C. § 1125(a), and tortuous conduct under Article 1802 of the Puerto Rico Civil Code. In these claims Salas Rushford challenged ABIM’s publication on its website that Salas Rushford’s board certification was “suspended” during a disciplinary investigation, as well as the manner in which that investigation and subsequent hearings were conducted. In addition to his motion to dismiss, Salas Rushford moved to stay the action in this district pending the result of the Puerto Rico litigation and for sanctions. In September 2015 this Court denied Salas Rushford’s motions and in the same month, the district court in Puerto Rico dismissed the parallel action without prejudice.

Salas Rushford then moved for judgment on the pleadings on the basis that ABIM’s lawsuit for copyright infringement was barred by the three-year statute of limitations. In March 2017, this Court granted the motion, and dismissed ABIM’s complaint with prejudice. Following that decision, ABIM and the ABIM Individuals (Richard Baron, M.D., Christine K. Cassel, M.D., Lynn O. Langdon, Eric S. Holmboe, M.D., David L. Coleman, M.D., Joan M. Von Feldt, M.D., and Naomi P. O’Grady, M.D.) moved for judgment on the pleadings on Salas Rushford’s counterclaims and third-party complaint, and Salas Rushford moved to sever and transfer them to the District of Puerto Rico. (Magistrate) Judge Waldor granted Salas Rushford’s motion to sever and transfer in the Opinion and Order from which ABIM now appeals.
The 2010 Arora-ABIM case led to this article published the Wall Street Journal. That article claimed as many as "140 physicians" were involved, and mentioned five physicians that the ABIM had just sued. Dr. Christine Cassel, President and CEO of the ABIM at the time was quoted as saying:
"Any high-school kid knows that cheating is unfair," said Dr. Christine Cassel, president and chief executive of the ABIM, who called the sanctions "a message and a deterrent."
What Dr. Cassel had never mentioned were the tactics the ABIM used to bring those charges against the vulnerable Arora course attendees. Furthermore, none of the charges brought by ABIM were ever upheld in court.

No doubt US internists who have been subjected to the strongman tactics used by ABIM sense a bit of schadenfreude knowing the "ABIM Individuals" may be traveling to Puerto Rico to stand trial there, too.

Sadly, their travel and legal fees will be at our expense, too.



Ed Rico said...

Congratulations, Dr. Jimmy. Ms. Hara Jacobs of Ballard Spahr (representing ABIM) stated on the record during the Jan 2017 USDC proceeding that resulted in ABIM's claim for copyright infringement being dismissed as time-barred, stated on the record that "enhanced statutory damages" were potentially in play for Dr. Jimmy if "willfulness" could be demonstrated. Sounds like enhanced damages are appropriate for ABIM since deliberately filing against Dr. Jimmy in USDC *after* they knew the original statute of limitations had expired sounds "willful" to me. Dr. Jimmy's legal team can thank Ms. Jacobs for that tip.

Anonymous said...

I would say willful and malicious. Reading through a few of the deposition transcripts from the "time-barred" lawsuit (brought by ABIM against SR) I got the distinct impression Ballard Spahr attorneys were so unprepared that they did not expect to win. Their intention was obviously to maliciously harass. I.e., they fully knew their copyright infringement case did not have legs to go anywhere. All they did was expose their double felon corporate hitman using illegal tactics and the embarrassment of their copyright process, which was so poorly documented and administered as to give the appearance that their testing/psychometirc process should be thrown out of court also. their test question "gems" were so far beyond the 3-year scientific statute of of limitations as to be determined "obsolete". The ABIM is not keeping up and it is obvious why. They are focused on money and control. Focused on political, corporate and personal financial endeavors exceeding their job descriptions.

ABIM's Egregiously Conflicted Behavior said...

Doctor's Justice has more information about ABIM's abuses against physicians, and in particular regarding their time-barred lawsuit against Dr. Jimmy.

Carolyn said...

I don't want to pay for those highly conflicted ABIM executives' defense and travel expenses! Yet it won't be the first time we end up paying for first class travel for ABIM executives and their spouses. Flying around the country to their luxurious Four-Season retreats (or self-dealing financial/political agendas) on our dime.

Another Palace for Queen Cassel and Nest for Prince Bob? said...

The ABIM's Luxury Condo -- A Muckrakers Golden Egg

Was it a scandal? Of course not. It was an outlandishly dumb and egregiously nefarious scandal.

Perhaps ABIM/ABIMF will purchase a luxurious mansion with a chauffeur in Puerto Rico cashing in some of their politically stupid Caymen Island investments. They probably need to diversify their holdings in the Caribbean anyway. Too much cash accumulating in their offshore hedge funds. It is not that they are politically stupid they are simply unaccountable and don't seem to care one bit what their captured clients think about them and MOC

Plus, if they buy another luxury palace the ABIM executives and their legal entourage won't be put out staying at a public resort on the beach like the Ritz Carlton. That isn't very private and one of the reasons they need another real investment-- a private place for them to stage and wage their next round of legal dirty tricks. That's part of the reason they bought the condo in 2007 -- for secrecy and privacy. (Corporate, personal, legal and political chicanery.) Look at the timeline and you can see it all adds up to no good. That's why they remain silent or hire a spokes communications officers to enusre that it is all kept secret/hidden.

Also the 2007 luxury condo, complete with the Mercedes/chauffeur (and shady corporate bouncer) was obviously an unreported perk for executives like Chris Cassel and Bob Wachter. Bob was bird-nesting at the time of the condo purchase Sir Robert needed a private place for dating and a place where both he and Chris, et al, could meet with corporate big wigs and political lobbying.

If you have never heard about birdnesting and the problems it causes for dating, corporate board activity and engaging in private political activities there is an excellent article in one of my favorite media outlets -- the Huffington Post published in 2010. Chris Cassel and her hubby were using the condo for their own form of birdnesting saving big bucks on actually living in PA for 10 long years and having a place there. I mean never having to show up for work as well except once in a blue moon.

But of course if the ABIM/ABMS folks buy another place, this time in San Juan, Puerto Rico, they have to take into consideration the length of term of any new real estate investment to see if it corresponds with Dr. Baron's timeline for collecting his golden parachute (deferred accounts and any other benefits promised for services rendered).

Lots of luck with those lawsuits when the muckrakers in the states and across the pond get the real scent and start start acting like real hounds.

ABIM's Fake Research Programs said...

MOC In the Name of Monetizing Physician Data and Shattering Physician and Patient Rights

"Too Little Too Late", by Wes Fisher should be read by everyone. "TLTL" reveals how this fake "quality assurance" trade association (ABIM/ABIMF) has deceived everyone for years/decades. Even the IRS has been midled along with the states of PA and IA!

ABIM's Continuous Monetary Exploitation said...

LCCR Liason Committee on Certification and Re-certification

Who knows about the LCCR? ACP rep is one of four people on the "committee" along with three medical society reps.

Look at the section of KCI and new ways to reinstate a lapsed certificate. More MOC money from the pathways for reinstatement of a medical certificate.

Decertifying and reinstatement of certifications mean even more ways to continuously collect money from physicians and lucrative data.

And the sale of more "learning products/review courses/books by the ACP and societies.

Anonymous said...

Congratulations to Dr. Jimmy. One step toward justice. Does any body know if Dr. Jimmy prevails in court in the P.R. can he invoke treble damages against the ABIM?