Battle Over Maintenance of Certification Continues in the Courts

Two lawsuits against ABIM dismissed, but appeals are in or on the way.

This article was first published on Monday, December 30, 2019 in MedPage Today.

By Joyce Frieden, News Editor, MedPage Today  

Plaintiffs in a federal lawsuit involving maintenance of certification (MOC) requirements officially filed a notice of appeal in Philadelphia Monday following a district judge's September decision to dismiss the suit.

Prompting the Kenney v. American Board of Internal Medicine (ABIM) lawsuit, lead plaintiff Gerard Kenney, MD, and Glen Dela Cruz Manalo, MD, declined to continue participating in the board's MOC program, a decision which affected their employment; Alexa Joshua, MD, did not pass the MOC examination, resulting in her being barred from providing inpatient care to her patients, according to the lawsuit; and Katherine Murray-Leisure, MD, failed one MOC examination and had some of her practice privileges revoked for a year, until she re-took the exam and passed it.

The physicians argued that ABIM violated antitrust laws by tying initial board certification to its MOC program; the Sherman Antitrust Act does not allow a business to tie the purchase of one product to the purchase of another as a way of maintaining monopoly power. But Judge Robert Kelly of the U.S. District Court for the Eastern District of Pennsylvania declined to go along and, on Sept. 26, granted ABIM's motion to dismiss the lawsuit.

"We disagree with Plaintiffs and find that ABIM's initial certification and MOC products are part of a single product and do not occupy distinct markets," Kelly wrote. "Not only are we unconvinced by Plaintiffs' arguments, we find that Plaintiffs' entire framing of the ABIM certification to be flawed. In essence, Plaintiffs are arguing that, in order to purchase ABIM's initial certification, internists are forced to purchase MOC products as well. However, this is not the case. As Plaintiffs state in their Amended Complaint, Kenney, Joshua, Manalo, and Murray were all able to purchase ABIM's initial certification without also buying MOC programs."

Kelly also dismissed another claim by the doctors. "Plaintiffs assert ABIM waged a 'successful campaign' to deceive the public that MOC 'benefits physicians, patients, and the public and constitutes self-regulation by internists,'" he noted. "In turn, this has allegedly led hospitals, insurance companies, and other such medical providers to more frequently require internists to purchase and maintain ABIM certification as a condition for employment or reduced medical malpractice insurance premiums."

"Plaintiffs believe this must be deceptive because there is 'no evidence of an actual causal relationship between MOC and any beneficial impact on physicians, patients, or the public.' However, in support, Plaintiffs merely put forth several public marketing materials from ABIM. There is no claim that ABIM actually deceived or coerced any hospital into requiring its internists to be ABIM-certified."

Similar Suit Against Radiology Board

Last month, a similar lawsuit against the American Board of Radiology also had an unfavorable outcome for the plaintiff. In that case, known as Siva v. American Board of Radiology (ABR), Sadhish Siva, MD, a radiologist in Murfreesboro, Tennessee, made the same claim as in the ABIM case, that the ABR had "tied" its initial certification and MOC products. (Like ABIM, the ABR started with lifetime initial certification, but added an MOC requirement in 2002.)

But again, the court was unconvinced. "Ultimately ABR sells only one product: certification of radiologists as having 'acquired the requisite standard of knowledge, skill, and understanding essential' to the practice of medicine in their particular specialty or subspecialty," wrote Judge Jorge Alonso of the U.S. District Court for the Northern District of Illinois on Nov. 19, in granting ABR's motion to dismiss. "This was once a one-stage process, and it is now a multi-stage process, but it does not follow that the certification process consists of separate products; now as ever, there is only one product."

Judge Alonso cited the Kenney v. ABIM ruling in his own decision. "This case is all but identical, and the Court agrees with the reasoning in Kenney," he wrote. "As in Kenney, the fact that the MOC component was only added relatively recently does not make it a separate product. Almost every product can be viewed as a package of component products: a pair of shoes, for example, as a package consisting of a left shoe and a right shoe; a man's three-piece suit as a package consisting of a jacket, vest, and pants; a belt as a package consisting of a buckle and a strap. As shown by the last of these examples, it is possible to describe a product as a package of components even if the components are physically integrated at the point of sale to the consumer."

Cases Are Not Over Yet

Westby Fisher, MD, a bitter opponent of MOC programs, expressed his feelings in a recent blog post about the Kenney case. "Initially, I must say I was surprised by Judge Kelly's ruling, but not shocked," Fisher wrote. "We have encountered significant naiveté with non-physician legislators when attempting to pass anti-MOC legislation at the state legislative level. Most non-physicians do not have a clue what ABIM Board Certification and MOC are, let alone their history and current relationship to obtaining and maintaining physician hospital credentials and insurance payments."

Fisher, whose anti-MOC organization Practicing Physicians of America is providing the plaintiffs with funds for their cases through a GoFundMe campaign, told MedPage Today that both judges offered plaintiffs an opportunity to amend their complaints, adding that court records indicate that Siva is planning to file an amended complaint by Jan. 10, 2020.

Because many hospitals and insurers require doctors to maintain board certification in order to be part of hospital staffs or insurance networks, "the Plaintiffs in this case were free to decide that they did not need to purchase MOC just as they are free to decide to stop breathing," Fisher wrote. "How long could the Plaintiff internists earn a living and work as internists if they cannot hold hospital privileges or receive insurance payments unless they purchase MOC? ... I look forward to seeing where the next chapter of this ongoing legal battle takes us in the weeks and months ahead."