PHILADELPHIA (CN) – A doctor should pay $91,000 for her role in a network that created a cheat sheet for American Board of Internal Medicine examinations, a federal judge ruled.
The board sued gastroenterologist Sarah Von Muller in June 2010 as part of its cheating investigation of New Jersey-based Arora Board Review (ABR) test-prep company.
Rajender Arora, as founder of the company, orchestrated a vast cheating ring by encouraging doctors to memorize and reproduce questions from their board certification exams, according to a separate complaint.
Although not required for a doctor to practice internal medicine, an ABIM certification is a valuable imprimatur for doctors, and, for many hospitals and health-plan networks, a required credential.
ABIM COO Lynn Langdon described the investigation, which involved nearly 150 doctors, as “unprecendented” to jurors.
Arora allegedly pilfered roughly 1,000 copyrighted test questions from ABIM and divulged them to prep course customers.
Arora and his company agreed to pay damages and refrain from offering any “live test-prep course at any time in the future” as part of a settlement, ABIM said.
To uncover the conspiracy, ABIM says it sent an employee to a six-day Arora course at a City University of New York campus in May 2009. There, about 350 board certification candidates received hundreds of practice questions that were “substantially similar” to ABIM’s questions, according to the suit against Arora.
During the course, Arora repeatedly boasted that its practice questions were, in fact, actual ABIM exam questions obtained from examinees, and he implored course attendees to email him ABIM test questions after taking their own exams, the suit said.
Arora also described meeting with test takers during the exam lunch break. Sitting in his white Mercedes, the informants would utter ABIM test questions into a recording device, the suit said.
Surveillance of Arora’s assistant, Dr. Anise Kachadourian, at a testing center in August 2009 revealed that she repeatedly took unscheduled breaks to walk to her vehicle, the suit said.
Once there, she “frantically wrote what appeared to be examination questions on notepads, made telephone calls and typed into her cell phone/PDA device,” according to the suit.
Despite being an assistant for a test-prep company, ABIM says Kachadourian failed its Internal Medicine Certification exam 10 times.
That’s a slightly worse track record than Arora himself, who only failed the test on seven occasions, ABIM said, noting that failed tests was another way that Arora obtained ABIM’s exam content.
ABIM said in a June 2010 statement that 139 physicians who participated in the ABR cheating ring would receive sanctions of various severity, such as having their board certifications suspended for up to five years or being temporarily barred from taking an ABIM certification exam.
But ABIM said it sued five of “the most egregious offenders” in federal court.
Dr. Sarah Von Muller, a mother of 10 from Oklahoma, took her case to trial.
ABIM said Von Muller was liable for copyright infringement and misappropriation of trade secrets for sending Arora 77 questions gleaned from the ABIM Gastroenterology Certification exam she took in November 2008.
Von Muller fired back with a counterclaim in October 2010.
She said the questions sent to Arora weren’t ABIM questions, and that many of the questions that ABIM claimed as trade secrets were “actually widely available on the Internet.”
Her correspondence with Arora “merely contained her thoughts and ideas,” she argued.
Von Muller also accused ABIM and its top executives of conspiring to defame her.
She said ABIM suspended her board certification without even trying to ask her about her contact with Arora.
ABIM CEO Christine Cassel, MD, “took the extraordinary step of contacting the Wall Street Journal” to inform the paper about the cheating accusations, then sent the paper’s story “to many, if not all, residency programs in the U.S.,” Von Muller claimed.
On the stand earlier this month, Dr. Von Muller broke into tears, telling jurors that ABIM’s rush-to-judgment destroyed her career.
“I don’t know how I’m gonna pay rent,” she said.
Asked by ABIM’s counsel whether she planned on taking the board certification exam when her five-year suspension expires, Von Muller replied that she hadn’t yet decided.
“I’ve already taken this exam once, and this is where I am,” she said. “Here I sit, in a federal court, in front of a jury.”
She said she wasn’t sure that she could “crawl back in bed with … this institution who did this to me.”
Van Muller’s tears proved futile when a jury found Wednesday that ABIM and its executives did not defame Von Muller, and that she willfully infringed the copyrighted gastroenterology exam.
Chief U.S. District Judge J. Curtis Joyner entered a $91,114 judgment for ABIM after the 12-day trial.
ABIM President Christine Cassel, MD, told Courthouse News it has “spent millions of dollars defending the integrity of the ABIM examination process.”
Von Muller immediately moved to reduce the jury verdict to $0.
The jury found that, under the merger doctrine, at least some of the exam content allegedly copied by Dr. Von Muller was not copyrightable.
That doctrine precludes copyright protection for an idea when the idea and the expression of it are inseparable.
Von Muller’s attorney, Aaron Freiwald of Layser & Freiwald, told Courthouse News that this finding means there are no damages.
“Under the law, all they have to do is submit an exam and boom, they get a copyright,” Freiwald said. A copyright does not necessarily mean the material is protectable, he said.
“You can’t copyright a teaching point,” he said. “They can’t protect medical fact or scientific knowledge or some concept. … They can only copyright original expression.”
Freiwald added that he can appeal certain issues after the court rules on the latest motion.