Radiologist certification program scrutinized by Seventh Circuit

CHICAGO (CN) — The business practices of the American Board of Radiology came under scrutiny before a Seventh Circuit panel Wednesday morning as judges considered a doctor's antitrust lawsuit against the association.

The case revolves around the ABR's certification requirements, which includes what radiologist Dr. Sadhish Siva deemed unnecessary components and monopolistic activities.

As the sole certifying body for U.S. radiologists, the ABR created a maintenance of certification course in 1994 meant to ensure radiologists' continuous education. By 2007 these MOC courses had become mandatory for all radiologists except those who had bought their certifications before 1995. Everyone else in the field must complete the MOC annually, a process which can cost hundreds of dollars, to retain their licenses.

In his 2019 class action, Siva claimed this amounts to little more than a monopolistic money grab in violation of the Sherman Act of 1890.

"Beginning in or about 1994, ABR used its monopoly position in the initial certification market to create a monopoly in the market of maintenance of certifications for radiologists... Since then ABR has used various anti-competitive, exclusionary, and unlawful actions to promote MOC and prevent and limit the growth of competition from new providers of maintenance of certification for radiologists," the complaint states.

U.S. District Judge Jorge Alonso threw Siva's case out of Illinois federal court in 2021 on the grounds that the MOC is not a distinct product but an inherent component of the ABR's initial certification process.

"ABR requires certified radiologists to pay for the maintenance portion of the certification product as they go, but in the totality of the circumstances, that does not suffice to make the maintenance component a separate product," Alonso wrote in his opinion dismissing the suit.

Now before the Seventh Circuit, Siva's claims found some sympathy among the three-judge panel Wednesday.

The main points of contention are whether the MOC is a necessary product for radiologists, and whether there was a preexisting demand for similar products that the ABR may be monopolizing.

Siva's attorney Robert Margolis argued that at one point obtaining an ABR certification was to radiologists what the bar exam is to lawyers: a one-time event that occurred at the beginning of one's career. The mandatory MOC process, he said, added nothing to an experienced radiologist's skillset that couldn't also be obtained through voluntary continuing education courses.

"It's just another measure of whether radiologists keep current later in their careers," Margolis said.

U.S. Circuit Judge Michael Scudder, a Donald Trump appointee, asked Margolis whether the ABR can or should do anything to ensure certified radiologists keep up their education. In response, the attorney pointed out that the association functioned on a voluntary recertification basis long before the existence of the MOC.

"What we'd like ABR to do is go back to the voluntary recertification model... this isn't really about whether their standards are being met," Margolis said.

In their brief to the Seventh Circuit, Margolis and Siva's other attorneys also alleged that there is little to no evidence that MOCs improve or maintain radiologists' abilities.

"An extensive series of studies and surveys also contradict the unsupported public assertions by ABR and ABMS that MOC has resulted in better physician care and improved patient outcomes," the brief states. "These analyses make clear that (1) MOC has not been found to result in improved medical care; and (2) the overwhelming majority of doctors find MOC’s purported benefits are not worth the cost in time, money, and effort."

U.S. Circuit Judge Thomas Kirsch, another Trump appointee, challenged the monopoly claims by asking Margolis if there are or ever were other products on the market that could feasibly compete with the MOCs. Margolis alleged that such products existed prior to the ABR implementing mandatory annual certificate maintenance, but the ABR's attorney Jaime Stilson argued that Margolis was unfairly conflating recertification with certification maintenance.

"Recertification by its nature is different than MOC," Stilson said. "It suggests that someone has to take a test to recertify. Instead ABR chose a different path. They decided for their own profession... that the certification product offered going forward post-2002 required a maintenance component."

Stilson suggested that Siva's lawsuit was based not on a principled opposition to monopolistic practices but on a personal desire to get around professional standards while continuing his practice.

Scudder pushed back on this line of argumentation. The judge pointed to evidence in Siva's complaint that suggested that even "grandfathered" radiologists, who received their certifications before 1995 and weren't required to purchase MOCs, often sought out voluntary continuing education courses to stay current in the field.

"I think the focus [of this suit] is, they're making payments every year on whatever time basis they have to make them," Scudder said, "and they're paying to access conferences and seminars and courses and webinars, et cetera, that are out there in the market."

Stilson shot back that the demand for general continued education was substantively different from a demand for MOC. Like the district court judge, she said that the MOC was not an independent product but a component of certification which eliminated the need for continual recertification.

"The demand has to be for maintenance of certification, which is a package. It is a component," Stilson said.

Scudder, though, waved away this explanation as prioritizing products' labels over their actual content.

"You have to grapple with, without using the label, what is the content of what you call MOC," the judge said. "You could call it ABC or 123. What's the content of it?"

To this question, Stilson replied that as the sole certifying body for radiologists in the U.S., the ABR retains the right to adjust its certification process as it deems most appropriate.

"The ABR is entitled to determine the content of its certification... certification is only offered by ABR, your honor," she said.

But this rebuttal only prompted a sarcastic brush-off by Scudder.

"As part of the payment you make and as part of certifying, you have to acquire 10 baseball bats a year, and they can only come from us," he sarcastically remarked. "You can't go to Dick's Sporting Goods."

The panel was rounded out by the mostly silent Senior U.S. Circuit Judge Kenneth Ripple, a Ronald Reagan appointee. The judges did not say when they would issue a ruling.

Follow @djbyrnes1

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.

Email *

Submit