In September of 2013, the American Board of Obstetrics and Gynecology adopted a policy of excluding obstetrician/gynecologists from eligibility for Board certification and recertification if they treated any male patients. The policy identified eight narrow exceptions under which a male patient could be treated by a Board-certified or Board-eligible OB/GYN physician, including circumcising babies, testing couples for infertility, and treating transgender people. No rationale for the change was provided by the Board.
The new policy produced an immediate protest. The New York Times reported that the Board's "ban affected gynecologists who had developed extensive skill and experience treating male patients, and they said that it would be difficult or impossible for many of those patients to find care elsewhere."1 In November and December 2013, in response to the growing negative reaction from Board-certified OB/GYNs, two additional exceptions were created. The Board gave gynecologists permission to screen and treat men at high risk for anal cancer and to continue to see current male patients who suffered from chronic pain. However, the broad prohibition against the treatment of male patients remained in place.
Had it been allowed to stand, the policy would have created a significant restraint upon completion. In today's healthcare environment, achieving and maintaining Board certification is essential to the practice of medicine. Medical staffs, medical groups, managed care organizations, health plans, and other providers of healthcare services regularly deny participation or the authority to practice their specialty to physicians who do not hold or do not maintain Board certification. The New York Times has reported:
The gynecology board is one of twenty-four boards that certify medical specialists in the United States, based on training, exams, and other requirements. Certification is voluntary and not required by law, but in practice it is essential, because most hospitals and insurers require it and patients are increasingly encouraged to choose only specialists who are certified.2
Thus, stripping the certification away from doctors who continued to treat their male patients would have adversely impacted the market place as fewer Board-certified obstetrician/gynecologists lessen competition.
Of course, all professions are governed by rules of licensure and certification that impose limitations upon who may practice and, thus, all such professional rules tend to limit competition. However, the Board's status as a professional association did not grant it carte blanche to create restrictions upon its membership.
As recently stated by a court of appeals, "[t]he Supreme Court has likewise made pellucid, however, that anticompetitive acts are not immune from § 1 [of the Sherman Act] because they are performed by a professional organization."3
Membership in a professional organization of healthcare providers constitutes a competitive advantage. For antitrust purposes, "[t]he courts have recognized that every association must have some type of limiting rules, criteria, or disciplinary procedures which, when invoked, restrain trade at least incidentally. In determining whether [such an association's] rules, criteria, or disciplinary actions constitute unlawful horizontal concerted refusals to deal, courts typically have examined whether the collective action is intended to accomplish a goal justifying self-regulation and, if so, whether the action is reasonably related to the goal."4
In January 2014, on behalf of certain Board-certified OB/GYNs, our firm provided the Board with a letter summarizing its contemplated challenge to the Board's policy as constituting an unlawful restraint of trade based on its anti-competitive effects. The policy failed to bear a rational relationship to issues of education, training, competence, or expertise. Treating a male patient could not render an otherwise qualified Board certified OB/GYN suddenly unqualified to provide care to women.
The letter noted that while the Board had not stated a rationale for its policy, certain "spokespersons" had expressed purported reasons for its adoption: (1) the policy would guard against Board-certified obstetrician gynecologists who were perceived as behaving unethically or unprofessionally; and (2) there is a need for the specialty of obstetrics and gynecology and that "there are plenty of physicians out there to take care of men."5
The first "reason" lacked rationality. Adopting a global rule that would adversely affect hundreds, if not thousands, of physicians and their patients, based upon an undocumented and unproven suspicion that some of the Board's members might behave unethically, was illogical. If the Board believed that one of its members had engaged in unethical conduct, it has a long set of rules that it has adopted specifically to address such circumstances. In appropriate circumstances the Board can, and should, bring appropriate administrative proceedings focused upon an individual physician accused of wrongdoing.
The second justification was equally irrational. No one disagrees with the premise that there is a need for Board certification in order to define and identify those individuals possessing the requisite level of skill, training, and expertise to practice obstetrics and gynecology at the highest level. However, the premise of the new policy—that an obstetrician /gynecologist cannot treat a man and to be adequately qualified to provide obstetrical and gynecological care to a woman—is not supported by facts or logic.
Finally, the eight exceptions created by the Board at the inception of the policy, and the additional exceptions adopted in response to pressure and publicity about the policy, amounted to evidence that the generic prohibition against the treatment of men was not justifiable.
In response to the backlash against the policy and, we hope, in response to our analysis of the anti-trust vulnerabilities of the policy, on January 30, 2014, the Board retracted the rule and enacted a new policy which it described as follows:
The major changes from the document published in November 2013 eliminate the requirement that ABOG-certified Diplomates treat only women. . . . Under the revised policy, Diplomates "must devote the majority of their practice to the specialty of Obstetrics and Gynecology." This change recognizes that in a few rare instances, board-certified Diplomates were being called upon to treat men for certain conditions and to participate in research. This issue became a distraction from our mission to ensure that women receive high quality and safe health care from certified obstetricians and gynecologists."6
This revised policy has been perceived as a "victory for patients."7 The revision will foster competition among doctors and provide patients with the quality of care they deserve.
1 Denise Grady, Gynecology's Gender Question, N.Y. Times, December 24, 2013, at D1.
2 Id (emphasis supplied).
3 See, e.g., Arizona v. Maricopa Cnty. Med. Soc'y, 457 U.S. 332, 347–51 (1982) (condemning as a per se § 1 violation maximum fee-setting agreement by physicians); F.T.C. v. Indiana Fed'n of Dentists, 476 U.S. 447, 459–60 (2009) (finding horizontal agreement among dentists to be a § 1 violation under quick-look analysis). See also Virginia Acad. of Clinical Psychologists v. Blue Shield of Virginia, 624 F.2d 476, 485 (4th Cir.1980) ("we are not inclined to condone anti-competitive conduct upon an incantation of ‘good medical practice'").
4 Antitrust Law Developments, A.B.A. 119-120 (7th ed. 2012).
5 Id.
6 Denise Grady, Responding to Critics, Gynecology Board Reverses Ban on Treating Male Patients, N.Y. Times, Jan. 31, 2014, at A20.
7 Id.
This article first appeared in Orange County Lawyer, June 2014 (Vol. 56 No. 6), p. 34-36. The views expressed herein are those of the Author(s). They do not necessarily represent the views of the Orange County Lawyer magazine, the Orange County Bar Association, The Orange County Bar Association Charitable Fund, or their staffs, contributors, or advertisers. All legal and other issues must be independently researched.
