Saturday, September 12, 2020

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, 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)

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.)


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)

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.


There have been multiple entries on 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)

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.


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)

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.


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.


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.


Mono Poly said...

What happens if you land on ABMS Avenue? PCPI Place (AMA/ABIM/ABMS)? NCQA Charitable Trust (ABMS/ABIM)? Hotel NQF (ABMS/ABIM)? AMA or Altarum Community Chest?

You have to pay.

Group "Board Certification" (page 5),changed%20its%20name%20to%20Altarum.

Unknown said...

I can't really tell is this good news or not?

MOCopoly vs GoFundMe said...

David vs Goliath

I think it is fairly positive news, because the court documents are revelatory and do create a record that the public can access and read. The lack of media coverage is to be expected as "they" control the message. The ABIM case dismissal in the lower courts is also very telling.
The truth is the ABMS et al are monopolists and racketeers pocketing large sums of money (unjustly enriching themselves) to do "work" that largely serves corporate and political interests. MOC has no real public safety value as falsely claimed on their tax returns and deceptively presented to the public (patients), insurers, hospitals, etc.
In a fair court the truth will emerge during discovery and at trial that the ABMS is a franchise of professional medical fraudsters and their overpaid two-bit stooges.
Why haven't the other medical specialty boards been sued yet? That's one of the questions that I have. The GOFUNDME effort should have 4 million dollars by now if it were not for media suppression of these important class action lawsuits. The lawsuits are necessary to protect the profession (physicians) and the public (patients) from Ponzi schemes like MOC with its onerous illicit demands and the resultant bottleneck/stricture it places on patient access to highly skilled professional care.

Right to Work Right to Care said...

MOC is an illicit weapon aimed at physicians and patients. Shots have been fired. Physicians down. Patients down.

Who will defend and end this nagging war against physicians' and patients' right to work and right to care. MOC is a debilitating theft of time, money, health and energy?

Who will put an end to the professional and public mayhem created by the financial and political machinations of the ABMS and its certification cartel. MOC funds this mayhem.

Who will expose the MOC Ponzi scam to the American public? Who will rein in the racketeering of the ABMS with its twenty four medical specialty boards and sub-specialties?

Everyday physicians and patients continue to suffer from burnout, stress and endless streams of deleterious effects stemming from MOC.

Support the GoFundMe legal campaign to end the ABMS abuses and destruction of physician and patient rights. The donations send a clear message. The violatory acts of the ABMS and medical specialty boards are many and need to be stopped. The donations are necessary in the fight.

Thomas said...

Read the comments from those who donated to the GoFundMe campaign in support of the doctors fighting a legal battle with the ABMS MOC scam! (Class action lawsuits.)

The ABMS and 24 medical specialty boards have become so seedy.

Fake Studies Prove Whatever They Want to Prove said...

They major problem with the ABIM/ABMS is that they cherry pick the doctors they interview for their bogus science projects, steering the outcome toward their own biases/greed. The truth is doctors burdened by MOC suffer burnout and stress that is off their charts, because they don't measure anything real. In fact the ABMS "science" only serves the bottom lines of the specialty boards' key executives. The truth is MOC lowers the quality of knowledge by destroying the professional joy/natural interest in learning. MOC is a form of sickening force feeding, which also reduces the amount of time one has to care for patients. Not to mention, the time one needs for one's own life and family. MOC is a taxing and vexing mandate. Do it, they say, pay for it, they say or you can't work!

Here is the ABIM/ABFM BS 'study" below. The only thing it proves is what is clearly written on the tax forms. The ABIM/ABMS top executives are awarding themselves huge paychecks, perks and bonuses, and walking out the door with golden parachutes. (MOC money invested in offshore protected accounts.)

ABIM/ABFM: "Doctors Studying for MOC Exams See Direct Benefit"

"The study, conducted jointly by ABIM and ABFM, found that most doctors interviewed said they gained relevant knowledge through the process of studying for the exam, which could affect their practice in various ways, including direct changes to patient care—such as improved diagnosis or prescribing, or less unnecessary testing—or changes that were less direct—such as improved communication with patients and colleagues or enhanced ability to co-manage patients with subspecialists. Physicians also described sharing what they learned with others, including peers and trainees, extending the benefits to the medical community around them."

ABIM Tax filings Page 7 Lipner (research) and Baron (CEO) "golden parachutes". Loading up the truck with MOC mandated money. Just like Cassel and Langdon before them. Clean faces, dirty hands.

Anonymous said...

Dear Henry:

I read with interest your recent editorial essay "Revamping the MOC" in the September 2020 issue of Current Psychiatry. Did you know that approximately fifty-four percent of the good doctors of America are burnt out and that physicians have twice the suicide rate of the general population? Oh, you do. And yet, leaders such as yourself persist on waxing poetic about the things doctors should labor to do for their organizations like taking periodic tests to maintain their board certification. Yes, yes, you also posit that a difficult and time consuming oral exam with a high failure rate might take the place of periodic exams but whatever. More tests really, right? You yourself admit that board certification is necessary to practice medicine in today's society yet you also write that a periodic test should be administered. Henceforth, a certain number of hard-working physicians will lose their board certification each year and to what end? To deprive dedicated doctors of their careers and patients of good doctors? Why on God's green earth would you possibly suggest sidelining a fellow colleague? Shame on you and your cronies.

Your essay superficially seems to be on the side of burdened doctors but we know better. It really just encourages doctors to comply with decreased maintenance of certification mandates that will still enrich the leaders. Our current disgraceful leaders seem to expend a significant amount of time and energy trying to convince their underlings to toil for them and comply with some form of maintenance of certification but they don't really do anything for us in return. Here is a novel idea. Instead of writing long-winded essays trying to convince younger doctors to comply with theoretically decreased maintenance of certification mandates, maybe you can write an essay encouraging our leaders to help us out a bit. Maybe the leaders can start by trying to free us from the bondage of electronic servitude to the EHR. Yes Henry, use those superior writing skills to help us out here brother. Surely they can take some of their corruptly earned (stolen) millions and hire computer and legal teams to help revamp the current EHR system that is burning out American doctors. Why would you not suggest this? Hmmm. Probably because you and most leaders do not work real doctors' jobs. Oh yes, and I imagine it would also be difficult to aspire to lead the APA without supporting its agenda. Such grand aspirations really Henry.

I would greatly appreciate that you cease and desist writing essays that are an insult to the intelligence of your anonymous "lower level" colleagues. Let us all mourn the living trees needlessly sacrificed to print your essay's tedious drivel. Thank you.

Unknown said...

I retired at 63.5 years of age on July 1st, 2020 because I so far have survived prostate cancer in 2016 and unfortunately had to undergo salvage radiation and Lupron therapy as it was a peripheral lesion and a little leaked out in the prostate bed. 2 years of Lupron and by criteria I’m off of it. Wanna get chemo head? Even though Lupron is not an anti-metabolite (it’s a anti-androgen agent) I was affected emotionally and physically by it.
PSA is staying down so far and up for another one in October. I hope I’m one of the lucky salvaged ones. Don’t get me wrong, I’m glad I’m still alive to post stuff and can die of something else.

I had to go to part time work, no morning office as it took too much time to get through the hospital patients, do EHR and call was a nightmare if nursing homes and the hospital called me all night long. Ummmm actually I didn’t get paid for call time! Stupid me. Time to go and retire!

MOC is a travesty!! 50 hours of CME a year as one feels it would help their practice should suffice as it did when I started out.

As far as I’m concerned, Medical Boards are nothing more than a Medical “MAFIA!”. Pay your extortion money and you can practice.
I don’t care anymore because I was able to “bail out”. It is a medical scam I tell you! The organizations used to be “service organizations” now are money making “bastids” as far as I’m concerned. The can go to Hades every one of them. And...............I will sign my name
Allen Kurt Savegnago