Physicians Lack Standing to Challenge Board Certification Requirements

On October 7, the Second Circuit held that physicians lack antitrust standing to challenge a medical board's eligibility requirements for a certification exam. In doing so, the court noted that the plaintiffs did not actually seek to abolish the eligibility requirements, but only an exception that would allow them to sit for the exam. The plaintiffs, whose purpose was to join a cartel rather than disband one, thus failed to state an antitrust injury.

The plaintiffs in Daniel v. American Board of Emergency Medicine were 175 physicians who practiced emergency medicine but who had not completed formal residency training programs in that specialty. The defendants included the American Board of Emergency Medicine (ABEM), an emergency medicine trade association, and twenty-eight hospitals. In 1980, when ABEM first began administering the emergency certification exam, physicians were eligible for the exam if they completed either (1) 7,000 hours and 60 months of emergency medicine practice, or (2) an accredited residency program. The "practice track" was expressly time-limited and remained open for eight years following the first administration of the certification exam. Since 1988 only physicians who complete a residency program have been eligible to take the ABEM certification exam. The plaintiffs alleged that the residency requirement was adopted pursuant to a conspiracy to restrain trade and limit the supply of certified emergency medicine physicians, thus allowing certified physicians to earn more than non-certified physicians.

The Second Circuit affirmed the dismissal of plaintiffs' claims, holding that they lacked antitrust standing. According to the court, the plaintiffs' alleged injury -- their inability to command the higher earnings of ABEM-certified doctors -- was not an injury cognizable under the antitrust laws. Furthermore, the plaintiffs lacked standing even if they had adequately stated an antitrust injury, because they do not have a "natural economic self-interest" in reducing the cost of emergency medical care to consumers. The court observed that health insurers, who reimburse hospitals for emergency care and thus have an economic interest in lower prices, would be more "efficient antitrust enforcers" in this case. Thus, denying the plaintiffs standing did not sacrifice any public interest in enforcing the antitrust laws.

Jones Day represented ABEM.

A copy of the case is available at this link.

For additional information about this Antitrust Development, please contact Toby G. Singer, leader of the Health Care Antitrust Practice.

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