Following dismissal of their antitrust lawsuit against the American Board of Psychiatry and Neurology (ABPN) regarding Maintenance of Certification (MOC) in May 2024, Emily Elizabeth Lazarou, MD and Aafaque Akhter, MD appealed their case to the United States Court of Appeals for the Seventh Circuit. What follows is an artificial intelligence-generated review of where that appeal stands, using an Adobe AI Assistant to simplify understanding of the arguments pleaded so far by both sides.
The issue statement in the appeal brief filed by the plaintiffs is:
“Whether the District Court erred in dismissing Plaintiffs’ tying claims when it found Plaintiffs failed to plausibly allege that Defendant-Appellee American Board of Psychiatry and Neurology’s (“ABPN”) maintenance of certification (“MOC”) product is a continuing medical education (“CME”) product.”
The main arguments presented by the plaintiffs are:
- MOC as a CME Product: The plaintiffs argue that the Maintenance of Certification (MOC) product offered by the American Board of Psychiatry and Neurology (ABPN) is a Continuing Medical Education (CME) product. They claim that MOC contains educational content, provides CME credits for state licensure, and is not redundant of other CME requirements.
- Substitutability of MOC: The plaintiffs assert that MOC is a substitute for other CME products. They argue that doctors use MOC to meet state CME licensure requirements, and that MOC provides CME credits directly through the AMA and is accepted by many states in place of CME requirements.
- Antitrust Standing: The plaintiffs claim they have antitrust standing because they are directly affected by the alleged tying arrangement. They argue that the tying of MOC to initial certification by ABPN restricts competition in the CME market, forcing doctors to purchase MOC instead of other CME products.
- Economic Impact: The plaintiffs allege that ABPN’s tying arrangement has led to a significant increase in MOC revenue and a decline in the number of CME providers, indicating a substantial foreclosure of competition in the CME market.
- Request for Leave to Amend: If the court finds that specific evidentiary details about individual state CME requirements should have been included in the complaint, the plaintiffs request leave to amend the complaint to provide such details.
- Reinstatement of Unjust Enrichment Claim: The plaintiffs argue that upon reinstatement of their Sherman Act claims, their unjust enrichment claim should also be reinstated, as it is related to the same set of facts and legal issues.
The American Board of Psychiatry and Neurology (ABPN) responded with several key arguments to support the dismissal of the plaintiffs’ case:
- Stare Decisis: ABPN argues that the doctrine of stare decisis, which mandates adherence to previous court decisions, forecloses this suit. The case at hand is materially identical to the Siva v. American Board of Radiology case, which was dismissed by the Seventh Circuit. Therefore, the same reasoning should apply, and the dismissal should be upheld.
- False Equivalence: ABPN contends that the plaintiffs’ legal theory is based on a logical fallacy of false equivalence. The plaintiffs incorrectly equate the Maintenance of Certification (MOC) program with Continuing Medical Education (CME) products. MOC is a comprehensive program with multiple requirements, not just a collection of CME credits. Therefore, MOC cannot be considered a substitute for CME products.
- Lack of Substitution: ABPN argues that MOC is not a substitute for CMEs. The plaintiffs fail to plausibly allege cross-price elasticity, which would show that MOC and CMEs are reasonably interchangeable in the minds of relevant consumers. Additionally, MOC is not required for state licensure, and many states prohibit considering MOC for licensure maintenance.
- No Financial Interest in CME Products: ABPN highlights that it has no financial interest in any accredited CME products. The MOC program requires diplomates to purchase CME products from other providers, and ABPN does not produce or have a financial stake in these products.
- Lack of Coercion or Force: ABPN asserts that the plaintiffs have not plausibly alleged actual coercion or force. The adverse consequences of not maintaining board certification are imposed by third parties, such as hospitals and insurance companies, not by ABPN itself. Therefore, there is no illegal tying.
- Non-Competitor in CME Market: ABPN argues that it is not a competitor in the CME market. The plaintiffs’ own contentions that MOC is effectively useless and not valued by physicians confirm that MOC does not compete on the merits in the CME market.
- Denial of Leave to Amend: ABPN contends that the district court did not abuse its discretion in refusing to allow the plaintiffs to file a fourth complaint. The plaintiffs had multiple opportunities to state a claim and failed to do so. The district court provided a reasonable explanation for the dismissal with prejudice.
In summary, ABPN’s arguments focus on the application of stare decisis, the logical fallacy in the plaintiffs’ claims, the lack of substitution and financial interest, the absence of coercion, and the non-competitive nature of MOC in the CME market. These points collectively support the dismissal of the plaintiffs’ case.
The subsequent reply brief by the Plaintiffs to ABPN’s arguments explains that the doctrine of stare decisis is inapplicable in this case because the Second Amended Complaint (SAC) contains substantial new factual allegations that address specific concerns raised in the prior decision, Siva v. American Board of Radiology. The brief argues that stare decisis applies only to legal determinations made in prior precedential opinions and does not apply to issues of fact or new information that were not part of the previous decision. The brief cites several cases to support this argument, emphasizing that stare decisis is limited to legal issues actually decided in a prior action and does not extend to different facts or new records. The brief also distinguishes the current case from the Third Circuit’s non-precedential Kenney opinion, noting that the SAC includes new allegations not considered in Kenney and that Kenney’s analysis was contrary to the Seventh Circuit’s holding in Viamedia v Comcast (7th Cir 2020).
The reply brief outlines several new factual allegations included in the Second Amended Complaint (SAC) that address the concerns raised in the prior decision, Siva v. American Board of Radiology. These new allegations are:
- Educational Content: The SAC alleges that Maintenance of Certification (MOC) has educational content, which was not sufficiently detailed in the previous complaint.
- CME Credit: The SAC includes allegations that doctors can earn Continuing Medical Education (CME) credits from MOC, which can be used for state licensure requirements.
- Non-Redundancy: The SAC asserts that MOC is not redundant of other CME requirements, addressing the concern that MOC simply imposes a redundant obligation to buy other CME products.
- Substitutability: The SAC provides detailed allegations showing that MOC is a substitute for other CME products, including that doctors view MOC and other CME products interchangeably and that MOC serves the same purpose as other CME products.
- Market Demand: The SAC includes allegations that MOC and other CME products are reasonably interchangeable in the minds of relevant consumers, permitting an inference of cross-price elasticity between MOC and other CME offerings.
- State Acceptance: The SAC details how many states accept MOC in full or partial satisfaction of CME requirements for licensure, and that MOC can be used to meet state CME requirements.
- Economic Impact: The SAC alleges that the number of accredited providers of continuing medical education has declined significantly since the advent of MOC, indicating a substantial foreclosure of competition in the CME market.
These new allegations aim to address the deficiencies identified in the Siva decision and provide a more robust basis for the plaintiffs’ claims. The new factual allegations are significant for several reasons:
- Addressing Pleading Deficiencies: The new allegations directly address the deficiencies identified in the prior decision, Siva v. American Board of Radiology. By including detailed facts about the educational content of MOC, the ability to earn CME credits from MOC, and the non-redundancy of MOC with other CME requirements, the plaintiffs aim to meet the pleading standards required to survive a motion to dismiss.
- Establishing Substitutability: The new allegations provide a basis for arguing that MOC is a substitute for other CME products. This is crucial for establishing that MOC and other CME products are part of the same relevant product market, which is necessary for the plaintiffs’ tying claim.
- Demonstrating Market Impact: By alleging that MOC has led to a significant decline in the number of accredited CME providers and that MOC is accepted by many states for licensure requirements, the plaintiffs aim to show that MOC has a substantial impact on the CME market. This supports their argument that ABPN’s practices have anticompetitive effects.
- Countering Stare Decisis: The new factual allegations help to counter the defendant’s argument that the doctrine of stare decisis should apply. By presenting new and specific facts that were not considered in the previous case, the plaintiffs argue that the current case is materially different and should not be bound by the prior decision.
- Supporting Economic Realities: The allegations about the economic necessity of certification for hospital privileges, insurance, and employment help to explain why ABPN’s conditioning of certification on the purchase of MOC constrains doctors’ choices. This supports the plaintiffs’ claim of “forcing” in the context of an illegal tying arrangement.
Overall, the new factual allegations strengthen the plaintiffs’ case by providing a more detailed and robust foundation for their claims, addressing the concerns raised in the prior decision, and demonstrating the anticompetitive impact of ABPN’s practices.
The ABPN still has on opportunity to respond the plaintiff’s reply brief before the case goes to oral arguments.
According to the court docket, oral arguments will occur sometime after 12 Dec 2024 when the Plaintiff’s attorney is available. We hope to update US physicians when those arguments are scheduled.
Contributions to support these updates and the legal effort underway to end MOC’s stranglehold on US physicians are still being accepted. Please give generously to our ongoing GoFundMe campaign.