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I want to sue the Medical Board for Antitrust violations, because it’s restraining trade by prosecuting me for practicing my kind of medicine.

I want to sue the Medical Board for Antitrust violations, because it’s restraining trade by prosecuting me for practicing my kind of medicine.

I hear that a lot from CAM docs. There is nothing more emotionally satisfying for a doc being prosecuted/persecuted by a medical board than to turn the tables and sue the board, its ignorant and venal board members and its executive director. Aside from the pure joy for the doc, isn’t the best defense a good offense?

Good sentiment for sure, but regrettably, two problems

First, board members are typically immune from damage awards regarding their decisions. That brings up a related but often forgotten point. Usually, docs want to sue the board after the informal settlement conference has failed to dismiss the investigation, or right after the board staff files the administrative case. But at this juncture, most of the board members haven’t even heard of the doc and only will learn about the case after an administrative judge issues a proposed decision.

But we’re suing in part to stop the bastards from ruling against me in the future and interfering with my right to practice, right?

That leads to the second problem, and here’s the short of it: No court has ever or will ever stop an on-going medical board proceeding.

But what if the board hasn’t followed its own rules in filing the administrative complaint against me?

Doesn’t matter. The reason, in legal parlance is ripeness (maybe also failure to exhaust administrative remedies).

Until the board makes an actual and enforceable decision on your case, there is nothing for the Court to do, because the board hasn’t taken final action, and courts only review final actions of administrative agencies, (unless specifically granted the authority to do so, and that’s almost never the case). Maybe the administrative judge and the board will agree with you after a hearing. That’s the way the courts look at it, so they wait until the board makes its decision.

But filing the case against me is public and hurts my reputation and I’m being injured now even without a final board decision.

Sorry, but that doesn’t matter. Having an administrative case or even a criminal case filed against you is not something which can be stopped by another court just because you think the board or prosecutor is wrong, out to get you, or even if you think you will suffer harm because there is a pending case against you. Very sorry, but the law just doesn’t stop cases against people because the case might injure a person’s reputation or business.

So whatever tactical reasons there might be for suing the board which has or is about to file a case against a doc, expecting that a court will actually stop the board from proceeding with its case is not realistic; it’s just not going to happen.

There might be other reasons to sue the board: Maybe you think you can wear a government agency down. Maybe you want to show that you’re a tough guy. Or maybe (and this is my personal favorite) you have such a deep respect for the legal profession, and such gratitude for the noble attorneys who defend CAM docs that you want to make a substantial contribution to their well-being.

Well, if that’s your motivation, then I say go for it!

But know that the trial court is going to deny your request to stop the board from proceeding against you, the appellate court will affirm the dismissal, and neither the state supreme court nor the U.S. Supreme court will hear your case (in case you want to make a really, really big contribution to your attorney’s financial well-being).

>Antitrust to the Rescue?

Well what about this new antitrust deal?

A new or developing thing is trying to sue boards for antitrust violations. Every CAM doc has heard that a couple years back the Supreme Court upheld the FTC’s suit against the North Carolina Dental Board’s because it tried to stop non dentists from offering teeth whitening at shopping malls. Here is the Supreme Court’s decision:

http://www.scotusblog.com/case-files/cases/north-carolina-board-of-dental-examiners-v-federal-trade-commission/

So why can’t I sue the board for antitrust restraint of trade for trying to put me out business; the board is restraining my trade?

It’s a fair question. I could tell you the answer in a one word sentence, but better to give some background and analytical tools, so you can understand what’s required to present a viable antitrust claim.

You can’t sue the state government for antitrust (and neither can the federal government)

States cannot be sued for antitrust violations. Congress understood that it couldn’t prohibit all state regulation which displaced or affected competition. This limitation of federal antitrust law was laid out by the Supreme Court in Parker v. Brown in 1943.

But what about state agencies like the medical boards which are usually controlled by professionals who are competing with the people the board is targeting?

Very good grasshopper! That was exactly the question raised and answered in the North Carolina Dental Board case.

The Federal Trade Commission sued the North Carolina Dental Board for restraint of trade because it had sent warning letters to shopping mall dental whitening stores which services were not performed by dentists. North Carolina law didn’t specifically say that teeth whitening was the practice of dentistry.

The Board tried to wrap itself in the Parker v Brown state immunity from antitrust liability mantle. But the Supreme Court said no. It held that because the dental board was controlled by “active participants” (meaning competitors of the mall dental whitening places) and because the board’s decisions were not “actively supervised” by some higher authority, the dental board was not entitled to state immunity from antitrust liability.

Not only did the Supreme Court hold that the dental board could be sued for antitrust, the FTC found that the dental board did illegally interfere with competition and ordered it to stop. So it was a complete loss for the North Carolina Dental Board.

Two questions: First, what does it mean for a board to be actively supervised? The FTC has published some guidelines. Here they are.

https://www.ftc.gov/system/files/attachments/competition-policy-guidance/active_supervision_of_state_boards.pdf

But I can tell you that in a state like California, where the Medical Board’s decisions are final, and can only be reversed by a superior court judge, that’s not active supervision.

The second and big point is just because a board is not immune from antitrust liability doesn’t mean that any tom, dick or doc can assert a viable antitrust claim; you still have to plausibly assert all the requisite elements of an antitrust violation. And that my friends is where an antitrust case filed in response to an administrative complaint against a doc runs into trouble.

Restraints of trade as would be asserted by a doc against a medical board would be evaluated under a “rule of reason” analysis, meaning the court considers the net effect of the restraint on “competition.” The oft-repeated mantra in antitrust jurisprudence is that “the antitrust laws protect competition, not competitors.”

An antitrust plaintiff cannot assert a valid antitrust claim, let alone win, by alleging that the restrictive action by the board harmed the doc. The doc would have to show how the board’s action harmed competition or the type of services generally.

In a board administrative case, especially one that hasn’t yet resulted in an adverse order, it’s going to be hard-to-impossible to show injury to anyone but the suing doc, (and that assumes a court would find injury to the doc, which is doubtful since the board hasn’t done anything, if the antitrust action is filed before the board makes a final decision).

To see if your case involves harm to competition, do a thought experiment: Forget about your case. What’s left? If your case is the main part of the claim, and there aren’t many other practitioners who are being subjected to the same thing, then the case doesn’t impact competition.

Well what about the chilling effect the case will have on other CAM docs, or the fact that this case will be a “springboard” to other cases?

Sorry, the courts have rejected that argument, because it’s too speculative. Here are two cases where the doc sued the board for antitrust, and got thrown out of court for lack of antitrust injury, despite their springboard or chilling effect argument.

http://www.leagle.com/decision/In%20FCO%2020160516084/PETRIE%20v.%20VIRGINIA%20BOARD%20OF%20MEDICINE
http://www.leagle.com/decision/In%20FDCO%2020170222F17/JEMSEK%20v.%20NORTH%20CAROLINA%20MEDICAL%20BOARD

There has to be hard and specific evidence of that the board’s actions will have a negative effect on competition, like there was in the North Carolina Dental Board case where the stated purpose of the warning letters was to put the non-dentist teeth whitening clinics out of business.

North Carolina provides another example of what it takes to successfully allege an antitrust case against a professional board. The North Carolina Acupuncture Board, at the behest of the acupuncture trade association sent out letters to physical therapists to cease and desist doing “dry needling” because the acupuncturists thought that the technique belonged to them exclusively. The PTs sued for antitrust violations. The acupuncture board tried to dismiss the case, but the judge allowed the antitrust part of the case to go forward, because the PTs alleged antitrust injury, i.e. the board’s action alleged a specific negative effect on competition, not just an individual PT. Here is the case:

http://www.leagle.com/decision/In%20FDCO%2020170131D06/HENRY%20v.%20NORTH%20CAROLINA%20ACUPUNCTURE%20LICENSING%20BOARD

The lessons I take from these cases are:

1. If a board tries to stop a group of providers not licensed by the board but which offers the same services of the board’s active participants, that states antitrust injury and a viable antitrust claim (assuming the other requirements are met, but

2. It is impossible, or close to it, for a doc to successfully sue a medical board for antitrust violations if the basis of the antitrust suit is that the board has started or is about to start a disciplinary action against him/her.

So if you’re going to sue a board for antitrust because the board has started a disciplinary action against you, have a realistic idea of what you can get out of it, and what you won’t.

Rick Jaffe, Esq.
rickjaffeesquire@gmail.com