By THE EDITORS (16)
Could the hated maintenance of certification system be on the verge of going away? A new lawsuit filed against the American Board of Medical Specialties, the American Board of Emergency Medicine and the American Board of Anesthesiology last week in the Southern District of California argues that the current system violates federal antitrust law. The lawsuit, which names the Chicago-based non-profit’s 24 member specialty boards as co-conspirators asks for an end to maintenance of certification and economic damages.
A lawsuit filed in December of last year against the American Board of Internal Medicine goes even further, seeking to apply the Racketeer Influenced and Corrupt Organization Act (R.I.C.O.) The RICO statutes have been used by in the past by prosecutors to target various shadowy defendants including the Gambino and Lucchese crime families, a corrupt unit in the Los Angeles Police Department and famously, Lt. Colonel Oliver North and his co-conspirators in the Iran-Contra affair in the 1980s.
The suit argues that the Philadelphia-based ABIM meets the definition of a criminal organization engaged in racketeering, pointing at the tangled web of ties linking the national medical boards, insurers, hospitals and the executives who run the certification programs.
The early success of the ABIM suit appears to be inspiring other doctors around the country to take similar action. Insiders the Deductible talked to believe a wave of lawsuits is likely to drop in the weeks to come. Potential targets could include the American Board of Radiology, the American Board of Family Medicine and the American Board of Obstetrics and Gynecology.
Is it extreme to use a law originally intended to allow prosecutors to target people like Tony Soprano and John Gotti to take on a venerable medical board ? Critics of maintenance of certification don’t think so. They argue that while the original intent was good, the current dysfunctional system has evolved into a monopoly that has funneled millions into the pockets of corrupt board executives by creating a Ponzi-like industry based on regular recertification tests and annual fees.
They note that the existing system forces doctors to participate or risk losing employment and suffer the risk of damage to their professional reputations. A physician that refuses to renew their board certification faces the possibility of being blacklisted by employers who prefer to hire certified professionals. They add that members of the public generally do not understand what the term board-certified means, confusing the term with licensure.
The doctors behind the legal challenge say they don’t want to do away with certification altogether, rather put an end to the current recertification system and find a solution that serves everybody’s interests.
The Other Side : Other highly skilled professions require recertification, why shouldn’t doctors? Defenders argue that while imperfect, the current system is needed to keep doctors’ skills up to date and stop dangerous doctors from slipping through the cracks. They also point to evidence that suggests that board-certified doctors deliver higher quality care. The American Board of Medical Specialties points out that a million visitors a year visit the web site it has set up to allow the public to check specialist credentials. Acknowledging the mounting criticism in recent years, the ABIM and other boards are considering making changes and effectively rebranding the program by naming it something other than “maintenance of certification.”
A Social Media Uprising: However the fight over certification plays out, the uproar over the system tells you everything you need to know about physician dissatisfaction around the state of medicine. In recent years doctors, once considered a quiet group, have taken to social media in increasing numbers to loudly protest HMO-like government mandates intended to boost efficiency and productivity, to rally against a cumbersome new electronic medical record system and to challenge new medical research that they say is improperly influenced by pharma interests. The Texas-based Practicing Physicians of America (PPA), the new group which is sponsoring the lawsuit, argues the recertification challenge is a symbolic blow in the battle to protect physician autonomy and prevent physician burnout.
How Hard is it to Win a Civil RICO case? Hard, but not impossible. Creative law firms have used RICO to file lawsuits against both businesses and individuals. The tactic is gaining popularity in the business world, because defendants face triple damages should they lose, making for potential blockbuster awards.
Could it work? What are the doctors arguing? Quoting directly from the Philadelphia filing:
“Finally, this case is about ABIM’s violation of Section 1962(c) of the RICO Act. As detailed below, ABIM has successfully waged a campaign in violation of RICO to deceive the public, including but not limited to hospitals and related entities, insurance companies, medical corporations and other employers, and the media, that MOC, among other things, benefits physicians, patients and the public and constitutes self-regulation by internists.
Believing ABIM’s misrepresentations to be true, hospitals and related entities, insurance companies, medical corporations and other employers require internists to participate in MOC in order to obtain hospital consulting and admitting privileges, reimbursement by insurance
companies, employment by medical corporations and other employers, malpractice coverage, and other requirements of the practice of medicine.”
Last year, in case that seized the public imagination and helped make the #Metoo movement a national cause, six women filed a RICO case against the Weinstein Company and Hollywood Producer Harvey Weinstein, accusing the company and co-conspirators in the entertainment industry engaged in racketeering by arranging situations in which actresses hoping to win roles found themselves alone with the predatory Weinstein and then covering up his attacks. A federal judge threw out the case.
Legal experts say the Weinstein case shows the real value of a RICO filing, as a potential pr weapon.
New York Times (Jan 16/2018) “Rico Cases are Tempting, But Tread Lightly“
Dr. Wes “Examining the ABIM’s Evidence for Maintenance of Certification“
ABIM Blog Post “ABIM Statement 12/10/18“
THCB “The ABIM Controversy: A Brief History of Board Certification and MOC” Robert Wachter, MD.
Gofund Me: If you’d like to contribute to the legal fund set up to pay for the ABIM lawsuit, the physicians behind it have set up a Gofund Me page. The group has raised over $200,000 to pay for legal expenses.
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