Antitrust Law Daily Wrap Up, ANTITRUST—3rd Cir.: Seeking to reinstate anesthesiology license exposed lack of antitrust injury from licensing board’s operations, (Oct 8, 2015)

By Jody Coultas, J.D.

A physician was unable to state federal antitrust law claims against the American Board of Anesthesiology Inc. (Board) based on the Board’s revocation of his certification, according to the U.S. Court of Appeals in Philadelphia (Hessein v. American Board of Anesthesiology Inc., October 7, 2015, per curiam). Therefore, a district court’s award of summary judgment to the Board was affirmed.

The physician’s licenses to practice medicine in New York and New Jersey were temporarily suspended as a result of a pending criminal indictment in New Jersey. As a result of the indictment, the credentialing committee of the Board revoked the physician’s specialty certifications in anesthesiology and pain management. The Board’s policy states that a diplomate’s certification shall be revoked if he or she does not maintain a medical license from at least one jurisdiction in the United States or Canada that is unrestricted.

After losing his certifications, the physician filed Sherman and Clayton Act claims against the Board. The district court held that the Board properly revoked the certifications, substantively and procedurally, because he had failed to maintain an active, unrestricted medical license and that the revocation of his certifications was not an illegal or anti-competitive tactic. The court also determined that the two defendant Board members were not in the same geographical location as the physician and were not in direct competition with him.

The physician alleged that the Board conspired with the state medical boards to revoke his certifications and disrupt his medical practice. However, there was sufficient evidence that the Board’s actions were independent of the actions taken by the state medical boards, and “a conclusory allegation of agreement … does not supply facts adequate to show illegality” under the federal antitrust laws.

Also, revocation of a physician’s board certifications because his license has been temporarily suspended due to a pending criminal indictment could not be considered anticompetitive under the federal antitrust laws. The narrow scope of the requested injunctive relief doomed the challenge to an allegedly exclusionary scheme that kept the physician out of the market. By seeking the restoration of his certificates, the physician sought to join the alleged exclusive arrangement and thus did not state an antitrust injury. “[B]y seeking relief that would permit them to join but not end the alleged exclusive arrangement, plaintiffs make plain that they are not complaining of an antitrust injury,” the court noted.

The court affirmed the grant of summary judgment with respect to the physician’s Fourteenth Amendment, breach of contract, tortious interference with contract, and defamation claims.

The case is No. 15-2249.

Attorneys: Amgad A. Hessein, pro se. Joseph A. Venuti, Jr. (Swartz Campbell) for the American Board of Anesthesiology Inc.

Companies: American Board of Anesthesiology, Inc.

Cases: Antitrust DelawareNews NewJerseyNews PennsylvaniaNews