Late last year, a lawsuit was filed against the American Board of Internal Medicine (ABIM) by a group of internists, who argued that ABIM violated Sections 1 and 2 of the Sherman Act, 15 U.S.C. 1-2, the Racketeer Influenced and Corrupt Organizations Act (RICO), and 18 U.S.C. 1962(c), further alleging unjust enrichment.
The lawsuit alleges that ABIM charges inflated monopoly prices for maintenance of certification (MOC), that the organization forces physicians to purchase MOC, and that ABIM is working to induce employers and other organizations to require MOC certification, thereby increasing their profits. The internist plaintiffs asked the court to find ABIM in violation of the aforementioned antitrust laws and to bar ABIM from continuing the MOC process.
ABIM Files Motion to Dismiss
In response to the filing, ABIM moved to dismiss the lawsuit for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Attorneys for ABIM argued in the motion to dismiss that the plaintiffs fail to prove in their complaint that board certification (both the initial certification and continuing certification) are two separate products that ABIM is unlawfully tying together. They argued, therefore, that the antitrust claims found in the complaint are invalid.
Motion to Dismiss, Granted
On September 26, 2019, Judge Robert F. Kelly of the United States District Court for the Eastern District of Pennsylvania granted ABIM’s motion to dismiss. Judge Kelly found, among other things, that the plaintiffs’ complaint failed to set forth a claim as a matter of law.
Judge Kelly acknowledged that one does not have to purchase MOC products in order to purchase ABIM’s initial certification, thereby dismissing the Sherman Act Section 1 portion of the claim relating to unlawful tying. In his opinion, Judge Kelly noted, “We disagree with the Plaintiffs and find that ABIM’s initial certification and MOC products are part of a single product and do not occupy distinct markets. Not only are we unconvinced by Plaintiffs arguments, we find that Plaintiffs’ entire framing of the ABIM certification to be flawed.”
Judge Kelly notes that “No state requires an initial ABIM certification for an internist to obtain a license to practice medicine” and that over the course of time as the practice of medicine has evolved, ABIM has gone from lifetime certification to the need for re-certification every so often (from passing an examination every 10 years, to also completing an MOC activity every two years and patient safety and patient survey module every five years). In 2018, ABIM added an annual program fee to participate in MOC, in addition to the assessment fee for MOC examinations.
Judge Kelly also opined that the plaintiffs did not establish that there is anticompetitive conduct happening to support their claim of monopolization under the Sherman Act. Because Judge Kelly does not believe the MOC product is in a market separate from the overall certification market, ABIM “cannot have a monopoly in a market that does not exist.”
The RICO suit was dismissed because, according to Judge Kelly, “[a]t no point did ABIM require or ‘force’ Plaintiffs to purchase MOC. To the extent Plaintiffs were required to purchase MOC, it was at the urging of their employers or prospective employers.” He also noted that “it is clear that Plaintiffs’ loss of employment opportunities or job responsibilities were also a result of their employers’ actions,” not ABIM’s actions.
In his decision, in addition to dismissing the suit, Judge Kelly will allow plaintiffs 14 days to submit an amended complaint. If the plaintiffs opt to file an amended complaint outlining the claims of illegal monopoly and racketeering against ABIM, the lawsuit may be revived.
Reactions and Possible Next Steps
Richard J. Baron, MD, president and CEO of ABIM, released a statement following the ruling. “ABIM is pleased that the United States District Court for the Eastern District of Pennsylvania dismissed in its entirety a lawsuit that alleged physicians were harmed by the requirements for maintaining ABIM board certification.”
Philip Curley, an attorney representing the plaintiffs, however, says the case is not over yet. “The four internists who brought the lawsuit were invited to file amended claims, which is certainly being considered,” Mr. Curley said in an interview. “If necessary, all available appeals will also be pursued to the fullest. No one was under the impression that the fight to bring MOC to an end would be quick or easy.”
Two other lawsuits challenging MOC, one against the American Board of Psychiatry and Neurology and another against the American Board of Radiology, are ongoing. A fourth lawsuit against the American Board of Medical Specialties, the American Board of Emergency Medicine, and the American Board of Anesthesiology was filed in February. The dismissal of this case may have an impact on other cases currently pending surrounding the same issue.