Federal Court Dismisses MOC Antitrust Complaint vs Radiology Board

Ken Terry

December 02, 2019

A federal court in Illinois has granted a motion by the American Board of Radiology (ABR) to dismiss an antitrust complaint regarding its maintenance of certification (MOC) program.

The decision was similar to a recent ruling against four plaintiffs who sued the American Board of Internal Medicine (ABIM) over its MOC program, as reported by Medscape Medical News.

Since 2002, the ABR has issued 10-year certificates to radiologists. Radiologists who wish to be recertified must pass an examination and must complete practice quality improvement projects. Doctors who were board-certified before 2002 have lifetime certification and don't have to be recertified.

Sadhish K. Siva, MD, a radiologist in Murfreesboro, Tennessee, brought the suit against the ABR, contending that the MOC requirements for ABR-certified physicians violate the Sherman Antitrust Act. Siva claimed that the ABR tied its initial board certification product to the newer MOC product in violation of the antitrust law.

Siva also alleged that the National Board of Physicians and Surgeons (NBPAS), which grants its own board certification to physicians, has been unable to gain traction in the market because of the ABR's alleged tying of its products. The plaintiff charged that the ABR has illegally monopolized the market for MOC in violation of the antitrust statute.

Finally, Siva claimed that the ABR had unlawfully enriched itself by charging what he viewed as high MOC fees for participating in a program that served no useful purpose for physicians.

Judge Jorge L. Alonso of the United States District Court for the Northern District of Illinois, Eastern Division, dismissed the complaint on November 19.

He agreed with the ABR's contention that the tying charge is without merit because the ABR's initial board certification and its MOC program are not separate products. The board sells certification, of which MOC is a part, he said.

In reaching this conclusion, Judge Alonso referred back to the Pennsylvania federal court decision in the ABIM case.

Plaintiff May Refile Suit

"What plaintiff describes is demand for the single product of certification, and adding a new component to the product that will cause customers to incur ongoing costs does not make the component a new product," Alonso said.

He also pointed out that nothing in the Sherman Antitrust Act requires the ABR to permit a competitor such as the NBPAS to supply a component of its certification product. Therefore, the ABR does not have to recognize the board recertification offered by the NBPAS.

Regarding whether the ABR had the right to add MOC to its original certification process, the judge said, "The Court sees no reason why ABR 'should not be allowed to modify its certification process over time'[put thin space here]" — another reference to the ABIM decision.

The judge added that the ABR's MOC is justified by the contract that radiologists enter when they seek board certification.

"To the extent ABR exercises 'control' over plaintiff's certification status, it is not the result of an illegal tie-in but 'a function of…contractual powers' that plaintiff was aware of from the beginning, even if he was unaware of exactly what form MOC would take," Alonso stated.

As for the plaintiff's monopolization claim, the judge said, there is no separate market for MOC, because MOC is a component of the certification product. The ABR cannot have a monopoly in a market that doesn't exist, he noted.

The unjust enrichment claim, the judge noted, was subject to state law, not federal law. Therefore, he declined to rule on it.

The ABR declined to comment on the court decision because Siva "may refile the suit," said ABR spokesman Rodney Campbell, noting that Siva has until December 9 to do so.

Siva did not respond to Medscape Medical News' request for comment by press time.

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