After five years and over three million dollars in legal fees, US physicians were handed an adverse and controversial split decision by the United States Court of Appeals for the Seventh Circuit regarding the antitrust aspects of the proprietary American Board of Medical Specialties’ Maintenance of Certification (MOC) product.
In response, on Thursday the Plaintiffs in the case filed a petition for rehearing en banc that was accepted. A rehearing en banc is a procedure where a case is reheard by all the judges of a particular circuit court of appeals, not just the three-judge panel that initially heard it. This is a rare procedure, typically granted when a case is of exceptional importance or to resolve a conflict in the circuit’s own precedent. Such a rehearing is not a standard part of the appeals process and is only granted in limited circumstances, often when a case has exceptional importance, raises significant legal questions, or where a panel’s decision conflicts with another panel’s ruling within the same circuit. By granting the rehearing en banc, it automatically vacates the previous decision of the three-judge panel. The case is then reviewed by the full court, which may decide it based on the existing briefs or order new briefing.
I encourage all physicians to read the entire rehearng petition linked above. It clearly outlines flaws in the Majority’s decision and outlines the many ways physicians view MOC as a competitor in the CME market for state licensure. For now, the case is NOT over and with a bit of luck and appropriate administration of justice, has the potential to turn the tide on the ABMS MOC monopoly that is adversely impacting US physicians nationwide.
Westby Fisher, MD, Co-founder, Practicing Physicians of America