Monday, May 6, 2013

A new antitrust challenge to professional medical boards.

This is a new antitrust lawsuit challenging the ongoing education requirements of professional boards. This one involves medical board recertification. In the suit, the plaintiffs allege that the defendant forces physicians to spend a lot of money to comply with a recertification program without a sufficient procompetitive justification. In fact, the plaintiffs allege that the defendant exacts the heavy costs in order to make money.

The plaintiffs are the Association of American Physicians & Surgeons. The defendant is the American Board of Medical Specialties. Generally, antitrust lawsuits against professional boards fail, because courts let the boards determine their own requirements to maintain the quality of the profession. Given the deference to professional boards in the past, the defendant's conduct here will not be per se illegal. If the plaintiffs were to ultimately win, it would have to be under a full rule of reason analysis, because the presumption is that ongoing education requirements by professional boards is permissible.

Between per se illegality and the rule of reason, there exists a middle-ground known as the "quick-look" doctrine. Under the quick-look doctrine, the court engages in a more thorough analysis than is done with per se illegal conduct, but the court does not conduct a full rule of reason analysis. The court makes presumptions about the anticompetitive nature of the conduct, instead of making the plaintiff prove it. It is unlikely to apply here, because the court will not make a presumption on the anticompetitive nature of the professional board's conduct, given how this conduct has been considered permissible in the past.

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