Update on Litigation Regarding Maintenance of Certification

Last Updated: Sep 15, 2020

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Pursuant to policy passed at the 2019 House of Delegates, the Pennsylvania Medical Society (PAMED) will provide updates to its members on litigation filed against American Board of Medical Specialties (ABMS) member boards regarding maintenance of certification (MOC).

The following is a summary of cases that PAMED is currently aware of. PAMED will continue to provide updates at appropriate intervals when additional information regarding MOC litigation is known.

Gerard Kenney, MD et al. v. American Board of Internal Medicine

Background of the Case

In December 2018, four physicians (Drs. Gerard Kenney, MD; Alexa Joshua, MD; Glen Dela Cruz Manalo, MD; and Katherine Murray Leisure, MD) initiated a class action lawsuit against the American Board of Internal Medicine (ABIM)  on behalf of “all internists required by ABIM to purchase maintenance of certification (MOC) from ABIM to maintain their initial ABIM certification.” This lawsuit alleged four claims based on federal law:

  • Claim I: ABIM violated the Sherman Act by unlawfully tying its initial certification to its MOC program.
  • Claim II: ABIM violated the Sherman Act by engaging in ‘anticompetitive conduct’ to obtain and maintain monopolistic power over the maintenance of certification market.
  • Claim III: ABIM violated Section 1962(c) of the Racketeer Influenced and Corrupt Organizations (RICO) Act by fraudulently misrepresenting that MCOs have a beneficial impact on physicians, patients, and the public.
  • Claim IV: Unjust enrichment by ABIM.

All four plaintiffs had obtained at least initial certification with ABIM and all four plaintiffs had experienced some form of adverse professional actions (loss of income, insurance coverage, admitting privileges, and/or employment opportunities) as a result of not participating in MOC programs or not passing MOC examinations.

Following the filing of the plaintiffs’ suit, ABIM filed a motion seeking dismissal of the case.

District Court Decision

On September 26, 2019, Judge Robert F. Kelly Sr. of the United States District Court for the Eastern District of Pennsylvania issued a memorandum dismissing claims I and IV of the plaintiffs’ suit with prejudice and claims II and III without prejudice. Judge Kelly’s memorandum can be accessed here and the Court’s order can be accessed here.

When a claim is dismissed with prejudice, plaintiffs are barred from initiating another action on that same claim. Plaintiffs can, however, appeal a dismissal with prejudice to a higher court.

Claim I: Regarding plaintiffs’ unlawful tying claims, Judge Kelly held that ABIM’s initial certification and MOC offerings encompass a single product, ABIM certification. Under federal law, unlawful tying of products requires the existence of two distinct products. Since the count found ABIM initial certification and MOC offerings were not two distinct products, there can be no unlawful tying arrangement. 

Claim II: The court found that the plaintiffs were unable to establish any anticompetitive conduct by ABIM to support a claim of monopolization. To assert a claim of monopolization, a plaintiff must establish that a defendant possesses monopolistic power in a relevant market and the acquisition or maintenance of this power is distinguishable from growth as a consequence of a superior product, business acumen, or historic accident. 

The plaintiffs had argued that ABIM maintained and abused monopolistic power over the maintenance of certification market. Because the court concluded ABIM’s MOC is not a separate market but rather part of its offering in the overall certification market, the court reasoned that ABIM cannot have a monopoly in a market that does not exist.

Claim III: Judge Kelly concluded that none of the plaintiffs had suffered an economic injury as a direct result of ABIM’s conduct. To assert a fraud-based claim under the RICO Act, plaintiffs must demonstrate that they suffered an economic injury as a direct result of the defendant’s conduct.

The plaintiffs’ employers had all established maintenance of ABIM certification as a performance requirement for their internists. Judge Kelly reasoned that any economic injuries, whether it be money spent or lost, suffered by the plaintiffs were a result of their employers’ policies and not the conduct of ABIM. The extent to which plaintiffs were required to comply with ABIM’s MOC was at the urging of their employers or prospective employers and not ABIM.

Claim IV: The court found no unjust enrichment by ABIM. To sustain a claim for unjust enrichment, a claimant must show that the party against whom recovery is sought either wrongfully secured or passively received a benefit that would be unconscionable or inequitable for that party to retain.

The plaintiffs argued that they conferred a benefit on ABIM (MOC-related fees), that ABIM wrongfully obtained those fees by forcing internists to purchase MOC or have their certifications terminated, and it would be unjust for ABIM to retain MOC fees obtained as a result of this conduct. Judge Kelly acknowledged that the plaintiffs did confer a benefit on to ABIM in fees paid. However, Judge Kelly opined that it is not inequitable for ABIM to keep this benefit since ABIM did not force plaintiffs to purchase MOC. Plaintiffs were free to decide to no longer be ABIM certified by not purchasing MOC and some of the plaintiffs so chose this. Judge Kelly further reasoned that it would be inequitable for the plaintiffs to demand that ABIM continue to certify them without proving that they are still able to meet ABIM standards and without paying ABIM for its MOC programs.

Latest Developments

In December of 2019, the plaintiffs filed a notice of appeal. On May 4, 2020, the plaintiffs filed an appeal arguing that the court had erred in its dismissal of their claims and seeking reversal of the court’s dismissal of their class action suit. ABIM responded by filing by a motion requesting that the previous dismissal be affirmed. In response to ABIM’s motion, the plaintiffs filed a reply brief on July 27, 2020. The United States Court of Appeals for the Third Circuit will now decide whether to allow the plaintiffs’ appeal to move forward.

Other MOC Litigation 

Dr. Sadhish K. Siva, MD has filed a class action suit against the American Board of Radiology (ABR). Dr. Siva acting on behalf of “all radiologists required by ABR to purchase MOC from ABR to maintain their initial ABR certifications” has asserted anti-trust and unjust enrichment claims against ABR. The case was filed in the United States District Court for the Northern District of Illinois. ABR has filed a motion to dismiss, no decision on this motion has occurred yet.

A similar suit, Lazarou and Akhter v. American Board of Psychiatry and Neurology, has also been brought against the American Board of Psychiatry and Neurology (ABPN) in the United States District Court for the Northern District of Illinois. This suit alleges anticompetitive conduct by ABPN to obtain and maintain monopolistic power over the MOC market for psychiatrists and neurologists. ABPN has filed a motion to dismiss. A ruling on dismissal has not yet occurred.

Another similar class action suit, Mannis et al. v. American Board of Medical Specialties, American Board of Emergency Medicine, and the American Board of Anesthesia, has been filed in the United States District Court for the Southern District of California. This case also alleges anti-competitive claims regarding MOC. This case is also still ongoing.

 

1 comment

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  1. David Behar | Sep 10, 2020
    I contacted the lawyers involved. I asked them to add a discrimination claim, based on any difference in pass rate of protected classes. They refused. Now, they can deal with the result. The Board of Boards refused to provide pass rates by demographic and disability status. They are covering up discriminatory results. 

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