Am. Osteopathic Ass'n v. Am. Bd. of Internal Med.

555 F.Supp.3d 142

AMERICAN OSTEOPATHIC ASSOCIATION, et al.

v.AMERICAN BOARD OF INTERNAL MEDICINE

CIVIL ACTION No. 20-6540

United States District Court, E.D. Pennsylvania.

Filed August 19, 2021

Daniel A. Kaufman, Carolyn E. Isaac, Christopher R. Parker, Michael Best & Friedrich LLP, Chicago, IL, S. Edward Sarskas, Michael Best & Friedrich LLP, Milwaukee, WI, Michael J. Salmanson, Salmanson Goldshaw, P.C., Philadelphia, PA, for American Osteopathic Association, Joanne Baker, DO Jody Bentley, DO Erica Kuhn, DO Judith Lightfoot, DO Katrina Platt, DO Troy Randle, DO Keith Reich.

Hara K. Jacobs, Paul Lantieri, III, Elizabeth Wingfield, Emilia L. McKee Vassallo, Ballard, Spahr, Andrews and Ingersoll, Philadelphia, PA, for American Board of Internal Medicine.

MEMORANDUM

Juan R. Sánchez, Chief Judge

This case arises from the long-standing rivalry between allopathic and osteopathic medicine in the United States. Although the education structure for both disciplines is the same, the pathways are separate. Training in each discipline includes medical school, residency programs, and board certification in specialty areas. Each of these steps was separate and accredited or approved by the respective medical discipline. But in 2014, the Accreditation Council for Graduate Medical Education (ACGME), the organization that accredits allopathic graduate medical education programs, and the American Osteopathic Association, the organization that accredits osteopathic graduate medical education programs, agreed to combine their residency accreditation programs into a single system. Under this single accreditation system, osteopathic board certified physicians were permitted to serve as program directors in the new ACGME-accredited residency programs and train both allopathic and osteopathic residents. After completing the ACGME residency program, residents in internal medicine were qualified to obtain board certification from either the American Osteopathic Board of Internal Medicine (AOBIM) or the American Board of Internal Medicine (ABIM). To obtain ABIM certification, a resident must submit an attestation from the residency program director. And in 2017, ABIM announced it would only accept attestations from program directors who are also ABIM certified. Attestations from AOBIM-certified program directors would not be accepted unless the program directors sat for and passed the ABIM board certification exam. Plaintiffs, the AOA and seven AOBIM-certified program directors, now bring tortious interference, unjust enrichment, and defamation claims against Defendant ABIM. ABIM moves to dismiss these claims for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). Because each of these claims fail, the Court will grant ABIM's motion and dismiss the Complaint.

BACKGROUND¹

Plaintiff American Osteopathic Association (AOA) is a nonprofit organization representing the practice of osteopathic medicine and osteopathic physicians and medical students. The AOA offers a board certification in internal medicine from the American Osteopathic Board of Internal Medicine (AOBIM) The Plaintiff Physicians are all program directors of residency programs who train medical students and prepare them to take board certification exams in internal medicine. Defendant American Board of Internal Medicine (ABIM) is a nonprofit, physician-led organization certifying physicians in internal medicine.

Historically, the AOA accredited osteopathic residency programs. While the Accreditation Council for Graduate Medical Education (ACGME) accredited corresponding allopathic residency programs. After completing an AOA- or ACGME-residency program, residents often seek board certification in their specialty area. Relevant to this case, residents seek board certification in internal medicine from either the AOBIM or ABIM. The only difference in these parallel training paths is ABIM's requirement that residents complete their residency in an ACGME-accredited program, whereas the AOA would certify residents with training from AOA- or ACGME-accredited programs.

In 2014, the AOA and ACGME created a single residency accreditation system for both allopathic and osteopathic residency programs. The single accreditation system allowed program directors to teach all residents, regardless of whether they were certified in allopathic medicine (by ABIM) or osteopathic medicine (by AOBIM). After residents completed the joint residency program, they could seek certification from either the AOBIM or the ABIM. This required residents to take either the osteopathic certification exam, given by the AOBIM, or the allopathic certification exam, given by ABIM.

Before certifying each resident, ABIM requires a residency program director to attest to each resident's qualification. In response to the single accreditation system, ABIM accepted attestations of qualification from both ABIM- and AOBIM-certified program directors. That changed in 2017, when ABIM announced it would only accept attestations of qualification from ABIM-certified Program Directors beginning in 2022. The announcement stated:

Beginning in July 2015, for residents and fellows who begin training in an AOA accredited program which receives ACGME accreditation before graduation, all satisfactorily completed years of training will be accepted towards ABIM's initial certification eligibility requirements. To be granted admission to an ABIM certification examination, candidates must meet all applicable training, licensure, professional standing and procedural requirements.

Through its tracking process, FasTrack®, ABIM requires verification of trainees’ clinical competence from an ABIM certified program director (other ABMS Board and Canadian certification is acceptable, if applicable). In support of the Single GME Accreditation System, ABIM recognized the need for a change in eligibility policies to allow program directors of newly accredited programs to become certified by ABIM and for a transition period (2016-2021) to allow them to do so. If the program director of a program achieving accreditation through the Single GME Accreditation System is not currently certified by ABIM in the discipline for which he or she is program director, there is now a Special Consideration Pathway which will allow the program director to become certified by ABIM.

During the 2016-2021 transition period, ABIM will accept attestations for ABIM initial certification eligibility criteria from those who are program directors through the Single GME Accreditation System, but who have not yet become ABIM certified. Beginning in 2022, all attestations to ABIM initial certification eligibility criteria will need to come from program directors who are ABIM certified. For additional information, please see the "Clinical Competence Requirements" section under each certification area.

Compl. ¶ 64.

Pursuant to this requirement, residents seeking ABIM certification must attend a residency program with a program director who is ABIM-certified. Residents who attend a residency program with a program director who is AOBIM-certified are not eligible for ABIM certification.

In response, the AOA and seven AOBIM-certified program directors filed the instant Complaint on December 30, 2020. The Complaint alleges the ABIM attestation requirement (1) tortiously interferes with Plaintiffs’ business relationships (Counts I and II) and (2) unjustly enriches ABIM (Counts III and IV). Plaintiffs also accuse ABIM of defamation by innuendo (Counts V and VI). Plaintiffs make all three claims pursuant to Pennsylvania law.

On its tortious interference claims, the AOA alleges the attestation requirement places pressure on AOBIM-certified program directors to abandon that certification and seek ABIM certification. The AOA asserts "[t]he ABIM Requirement represents ABIM's purposeful interference in AOA's reasonable expectation to retain and offer continuous certification to the physicians it certifies." Compl. ¶ 117. The Plaintiff Physicians also bring a tortious interference claim premised on the ABIM allegedly interfering with their business relationships with residency programs. As AOBIM-certified program directors, the Plaintiff Physicians allege they will be prevented from continuing their employment with residency programs unless they obtain and maintain ABIM certification.

Only one Plaintiff Physician, Dr. Baker, has achieved ABIM certification. See Compl. ¶ 91. She did so at great cost:

$3000 to study for and take the ABIM exam; up to forty hours a week of studying while taking vacation time; and "grappl[ing] with the time and cost investment needed to maintain both [AOBIM and ABIM] certifications, including keeping up with dual recertification courses and examination processes." Id.

Plaintiffs also allege a claim for unjust enrichment. The AOA claims its members have "confer[ed] a benefit on ABIM by registering for and taking ABIM's board examination." Compl. ¶ 133. The AOA also alleges ABIM has knowingly and unjustly retained the exam fees. See id. This, according to the Complaint, unjustly enriched ABIM relative to AOA and the Plaintiff Physicians, "who receive no benefit from taking the ABIM examination because there is no qualitative difference in [p]rogram [d]irector's qualifications if they pass the ABIM examination instead of remaining AOBIM-certified." Compl. ¶ 137. In fact, AOA has experienced a decrease in the number of residents seeking AOBIM certification. See Compl. ¶ 139. Count IV mirrors Count III, but is on behalf of the Plaintiff Physicians. See Compl. ¶¶ 141–45. The Plaintiff Physicians conferred a benefit to ABIM by paying for ABIM certification. They allege the ABIM certification is an "unnecessary" certification from which they get nothing.

Plaintiffs’ final claims are for defamation by innuendo. Plaintiffs allege the ABIM attestation requirement on its own and the published announcement of that requirement are defamatory. Plaintiffs allege the...