Advocacy in Action - Maintenance of Certification Goes to Court
Carter L. Alleman, J.D.
The Association of American Physicians & Surgeons (AAPS) sued the American Board of Medical Specialties (ABMS) claiming that the ABMS violated the Sherman Act and negligent misrepresentation of the Maintenance of Certification (MOC) program. In Association of American Physicians & Surgeons, Inc. v. American Board of Medical Specialties, the United States District Court for the Northern District of Illinois dismissed the action pursuant for failure to state an actionable claim.
I know that most of what you just read does not make a great deal of sense. Simply, AAPS on behalf of a member sued ABMS because the member did not participate in the MOC thus could not practice at a hospital that required those who worked for it to be engaged in the MOC program. The AAPS argued that the hospital denying the member the ability to practice in that hospital was a restraint of trade.
The Court spent a great deal of time in its decision outlining the restraint of trade jurisprudence, the legal equivalent of showing your work. The key point the Court ultimately found was that this claim did not meet that its injury flows from that which makes the conduct an antitrust problem: higher prices and lower output. The AAPS never showed that by the hospital preventing the doctor from practicing nor the hospital’s policy mandating MOC that this lead to higher prices due to lowering of output. The AAPS member still is practicing but not at that hospital. The court was not in the position to say whether the hospital’s policy violated any laws since the MOC is an entirely voluntary process.
The Court does leave room for future claims of anti-trust; however, the plaintiff is going to need to meet with evidence the following: a contract, combination, or conspiracy; resultant unreasonable restraint of trade in a relevant market; and an accompanying injury. However, the burden of proof is that the physician is being the victim of all of this, not the patients nor the patient costs but the physician. Given the ability of doctors to practice virtually anywhere, if the state medical board approves, the argument that the ABMS MOC program is restraint on trade is going to be difficult to prove to the courts. However, if the majority or more of hospitals start to require the MOCs for practice rights creating cut backs in output in the market and driving up consumer costs, there may be an actionable claim or at least one that will survive a challenge to dismiss.
This case was the first of many other challenges to the MOC program and process. All it takes is one case to have the right question of law to start other cases to come forward and drive the question through the courts. Will the question of law be anti-trust, not in the current jurisprudence, however with each new technological step trade is becoming more interconnected and consumer costs are impacted in ways that the Sherman Act which was passed in 1890 never knew was possible.