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.
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.