Surgeon May Get Another Shot in Antitrust Suit Against ABOS

A three-judge panel for the United States Court of Appeals for the Third Circuit has instructed the lower court to dismiss without prejudice Bruce E. Ellison, M.D.’s second amended complaint against the American Board of Orthopaedic Surgery, Inc. (ABOS).

Dr. Ellison is a California-based orthopedic surgeon. Per court documents, he claims that he wants to “move to northern New Jersey and practice at Rutgers University Hospital, St. Peter’s University Hospital, or one of the hospitals in the RWJBarnabas Health system.” These hospitals generally grant medical staff privileges only to American Board of Medical Specialties certified physicians.

In an attempt to receive ABOS certification, the board responsible for certifying orthopedic surgeons, Dr. Ellison began ABOS’ multistep certification examination. He passed the first step of the exam. However, ABOS allegedly “prohibited him from taking the second step until he first obtained medical staff privileges at a hospital.”

Dr. Ellison has not applied for staff privileges at any of the New Jersey hospitals. He contends that if he applies for staff privileges, he will be rejected because the hospitals only grant staff privileges to physicians who are already board certified.

Dr. Ellison argues that he is caught in a Catch-22. He claims, “he cannot obtain hospital medical staff privileges because he lacks ABOS certification, and he cannot obtain ABOS certification because he lacks hospital medical staff privileges.”

Dr. Ellison subsequently filed an antitrust claim against ABOS. The court dismissed the case with prejudice and Dr. Ellison appealed. For OTW’s prior coverage of the litigation, see “Court Dismisses Surgeon’s Antitrust Suit Against ABOS.”

On appeal, the three-judge panel concluded that the district court lacked subject matter jurisdiction. In its opinion, the court explained that Dr. Ellison lacked standing because “his injury is conjectural rather than concrete and imminent.” Notably, the court pointed out that Dr. Ellison has “not attempted to apply for medical staff privileges or taken any concrete steps to practice in New Jersey.” Thus, Dr. Ellison’s “assertions that ABOS has injured him” are “speculative.” However, a dismissal without prejudice means that this may not be the last time the courts hear from Dr. Ellison in the matter.