Court Dismisses Surgeon’s Antitrust Suit Against ABOS

A New Jersey district court has dismissed Bruce E. Ellison, M.D.’s second amended complaint against the American Board of Orthopaedic Surgery, Inc. (ABOS).

The complaint was the third that Dr. Ellison had filed in this matter. Dr. Ellison’s complaint alleged violations of federal antitrust law. He argued that “ABOS improperly restrains trade by colluding with hospitals in requiring orthopedic surgeons to obtain Board Certification as a condition of practicing at those hospitals.”

Dr. Ellison is an orthopedic surgeon licensed in California. His complaint stated that for “personal and professional reasons, Dr. Ellison would like to obtain medical staff privileges” at a New Jersey hospital. The New Jersey hospitals require that he obtain ABOS Board Certification.

In the complaint, Dr. Ellison argued that he cannot obtain medical staff privileges at the major New Jersey hospitals without taking Part II of the ABOS exam. He claimed that ABOS refused “to allow him to take Part II of the exam because he did not have medical staff privileges.” Dr. Ellison utilized this catch-22 to support his antitrust allegations. He asserted that this practice “reduces competition to hospitals by shutting out surgeons, like himself, who practice exclusively at ambulatory surgery centers.”

The Sherman Antitrust Act declares “every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States … to be illegal.” The court held that Dr. Ellison’s complaint provided only conclusory allegations. The court said that he failed to provide facts supporting either a “conspiratorial agreement” or a “coercive arrangement.”

Dr. Ellison appealed the court’s ruling. Earlier this month, the National Medical Association and Alan D. Ullberg filed an amicus curiae brief in support of Dr. Ellison. It argues, in part, that “ABOS’s board-certification procedures violate the ‘rule of reason’ by enabling and masking anti-competitive and discriminatory actions.” The brief expresses concern about “endemic race discrimination” within the national medical system.

Dr. Ellison has until October 28, 2020 to file the opening brief in his appeal.