Updates in the ABR Lawsuit

The back and forth continues. You can see the duel laid out on the lawsuit’s website, but they’re now up to 9 filings, most recently on August 12, when the plaintiff added their “Sur-Reply in Opposition to Motion to Dismiss” (which is an additional response to specific arguments made by the American Board of Radiology in their second motion to dismiss which itself was a response to the plaintiff’s amended complaint after the initial complaint was dismissed).

For those just tuning in, the plaintiff’s main thrust has been to argue that the ABR has abused an illegal monopoly by using their complete market dominance in essentially mandatory (initial) board certification to then force all radiologists to continue paying for the “separate product” of maintenance of certification forever. The ABR has argued that MOC is just part of certification now and is not a separate product, even if it wasn’t before and hasn’t been for the majority of the ABR’s history since its founding almost a century ago.

You don’t have to read much to see why the legal system is terrible, lawsuits take forever, and lawyers make a lot of money. The initial lawsuit was filed in February 2019. The amended complaint was filed in January 2020. And this is all quite possibly going to be thrown out by the judge again without even a hint of a trial after at least two years of the ABR burning through our certification fees to preserve its (new) status quo.

One excerpt from the end of this recent back and forth.

ABR:

If Plaintiff’s conclusion were true, hospitals and other medical organizations would not require certification (which includes MOC) to the degree alleged by Plaintiff. Competing entities would be permitted to offer substandard CPD products at bargain prices, and ABR would be powerless to control the integrity of its certification.

Of course, most hospital credentialing specifically does not include MOC, and such a requirement is even illegal in some states. It’s only “required” in the sense that the ABMS boards are now saying they’ll revoke certification from those who have earned it if they don’t keep paying their annual tithe.

Response:

There is nothing [in the motion] about “substandard CPD products,” “bargain prices,” or “the integrity of [ABR’s] certifications.” While ABR may assert its illegal tying is a justified attempt to preserve the undefined “integrity of its certifications,” that inherently fact-driven affirmative defense relies on facts outside the pleadings, is inappropriate on a motion to dismiss, and is contradicted by Plaintiffs’ well-pleaded allegations that MOC does not benefit physicians, patients, or the public, or improve patient outcomes. For example, ABR does not contend ABR certified radiologists failed to satisfy the “integrity” of certifications before MOC; that the “integrity” of certifications was in decline before MOC; that making MOC mandatory protects the “integrity” of certifications; or that hospitals, patients, and insurance companies had less “trust” in certifications before MOC was made mandatory.

Plaintiff seeks only to break up the captive market ABR has created for MOC by tying it to certifications. Eliminating the illegal tie and making MOC voluntary as promised previously by ABR will allow the marketplace to decide the merits of MOC, as the antitrust laws require.

Presumably, the judge will weigh in again in the coming months. His initial response was to grant the ABR’s initial motion to dismiss.

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