Chiropractic Antitrust Suit: Boycott Activities

Memorandum Opinion and Order:
Liability of the American Medical
Association (AMA) and Dr. Sammons

1. Boycott Activities

In the early 1960s the AMA became concerned that medical physicians were cooperating with chiropractors. In 1963, the AMA hired as its general counsel the author of the Iowa Medical Society plan to contain chiropractic in Iowa. As early as September 1963, the AMA’s objective was the complete elimination of the chiropractic profession. In November of 1963, the AMA authorized the formation of the Committee on Quackery under the AMA’s Department of Investigation.

In 1964, the Committee’s primary goal was to contain and eliminate chiropractic. Throughout the 1960s and early 1970s, H. Doyl Taylor, the chairman of the Department of Investigation, repeatedly described the Committee’s prime mission to be the containment and elimination of chiropractic as a recognized health care service. I found his video deposition denials, and his explanation that at all times he and the Committee only meant to eliminate chiropractic as a health hazard, incredible and unworthy of belief. Mr. Taylor believed that chiropractic was based on a “single cause — single cure” theory of disease and that given this baseless foundation, the entire profession should be “swept away.”

The Committee worked aggressively to achieve its goals in several areas. it conducted nationwide conferences on chiropractic; prepared and distributed numerous publications critical of chiropractic; assisted others in the preparation and distribution of anti-chiropractic literature; regularly communicated with medical boards and associations, warning that professional association between medical physicians and chiropractors was unethical; and attempted to discourage colleges, universities, and faculty members from cooperating with chiropractic schools. [The Committee worked to influence legislation on the state and federal levels and engaged in informational activities to inform the public on the nature of chiropractic. All of this activity is protected under the Noerr-Pennington doctrine, and I have not relied on any such conduct in reaching any conclusion in this case. The Wilk Court specifically approved the jury instruction used in the first trial that stated that defendants advocacy activity directed to legislative and administrative agencies, or bodies was protected if the “defendants undertook such efforts to influence governmental bodies with a sincere purpose to obtain the governmental actions that they sought.” 719 F.2d at 229.]

In 1966, the AMA adopted an anti-chiropractic resolution. This resolution, recommended by the AMA Board of Trustees and adopted by the House of Delegates, called chiropractic an unscientific cult. This label implicitly invoked Principle 3 of the AMA’s Principles which made it unethical for a physician to associate with on unscientific practitioner. In 1967, the AMA Judicial Council issued an opinion under Principle 3 specifically holding that it was unethical for a physician to associate professionally with chiropractors. [The Judicial Council is now known as the Council on Judicial and Ethical Affairs, but I shall refer to it in this opinion by its original name.] “Associating professionally” would include making referrals of patients to chiropractors, accepting referrals from chiropractors, providing diagnostic, laboratory, or radiology services for chiropractors, teaching chiropractors, or practicing together in any form. This opinion was published in the 1969 Opinions and Reports of the Judicial Council of the AMA (“1969 opinions”) which was widely circulated to members of the AMA. The opinion on chiropractic was also sent by the AMA to 56 medical specialty boards and associations.

The AMA and the Committee on Quackery used the anti-chiropractic policy statement as a tool — what the Committee called a necessary tool” — to spread the boycott to other medical groups. The Committee’s efforts were successful. Other groups, including some of the defendants, specifically adopted or approved the policy statement on the ethical prohibition against association with chiropractors. In 1971, the Committee made a report of its activities to the AMA Board of Trustees and described the policy statement as follows:

This was the necessary tool with which your Committee has been able to widen the base of its chiropractic campaign. With it, other health-related groups were asked and did adopt the AMA policy statement or individually-phrased versions of it. These, in turn led to even wider acceptance of the AMA position.

The hoped-for effect of this widened base of support was and is to minimize the chiropractic argument that the campaign is simply one of economics, dictated and manipulated by the AMA.

The memorandum further stated:

The Committee has not submitted such a report (earlier) because it believes that to make public some of its activities would have been and continues to be unwise. Thus this report is intended only for the information of the Board of Trustees.

Principle 3 was widely viewed as proscribing association with chiropractors. The four defendants who issued the Status Report on Chiropractic Lawsuits in 1978 acknowledged in that Report that Principle 3 proscribed association with chiropractors. Any reasonable medical physician who read Principle 3 and either the AMA policy statement or any AMA reference to chiropractors as unscientific practitioners, would conclude that it was unethical for medical physicians to associate with chiropractors.

In 1973, the AMA drafted Standard X, which incorporated the unscientific practitioners ethics bar into the JCAH hospital accrediting standards. The AMA urged JCAH to adopt Standard X, and JCAH complied. Keeping chiropractors out of hospitals was one of the goals of the boycott. When chiropractic was included under Medicare in 1973, the AMA become concerned that this would open the way for chiropractors to be on hospital staffs. Doyl Taylor caused the Office of General Counsel of the AMA to publish an article entitled “The Right and Duty of Hospitals to Exclude Chiropractors” in the Journal of the American Medical Association. This was intended to offer advice to hospital trustees across the country. it also told every hospital attorney that JCAH accreditation might be lost if hospitals dealt with chiropractors. [The JCAH accreditation standards prior to 1983 did not permit a hospital to allow chiropractors on the medical staff or to obtain hospital privileges, except to the extent allowed by state low. The legality of JCAH’s actions prior to the 1983 revisions to the JCAH standards, and the responsibility of the member owners for such actions, will be discussed fully in the section of this opinion dealing with JCAH. I do not find that the AMA, or any other member of JCAH, is legally responsible for the pre-1983 accreditation standards.]

The Committee on Quackery disbanded in December of 1974. By this time, chiropractic had achieved licensing in all fifty states, chiropractic services had become reimbursable through Medicare, Medicaid, and virtually every private health insurance pion, and the chiropractic educational system hod been given official sanction by the United States Office of Education. Nevertheless, the Committee pronounced itself a success. The AMA believed that chiropractic would have achieved greater growth if it had not been for the Committee’s activities. In May of 1975 the AMA Department of Investigation was disbanded and Doyl Taylor left the employ of the AMA.

This lawsuit was filed in 1976. In that year, the Judicial Council suspended distribution of the 1969 Opinions which contained the anti-chiropractic policy. Later that year the AMA Judicial Council adopted Opinion 3.50 and in March of 1977 Opinions 3.60, 3.70, and 3.71 were adopted. Under these opinions, a medical physician could refer a patient to a “limited licensed practitioner” for diagnostic or other health care services. Although there was no express reference to chiropractors, chiropractors would fall within the definition of “limited licensed practitioners.” Next, a medical physician could choose to accept or decline patients sent to her or him by a licensed practitioner or by a layman. Finally, a medical physician could engage in any teaching permitted by low for which she or he is qualified. However, the relaxation of the right to refer patients was not without qualification. Opinion 3.60 specifically required that a medical physician should not refer a patient unless she or he is confident that the services provided on referral will be performed in accordance with accepted scientific standards. In addition, Opinion 3.01 provided that it is 11 wrong to engage in or aid and abet any treatment which has no scientific basis and is dangerous.” Distribution of the revised opinions began in May of 1977. Principle 3 was still in effect.

In July of 1979, the AMA House of Delegates adopted Report UU. Report UU was the AMA’s new policy statement on chiropractic. It was a very begrudging change of position. Although it is now hailed by the AMA lawyers and Dr. Alan R. Nelson, present Chairman of AMA’s Board of Trustees, as a recognition by the AMA of the growth and development of chiropractic as a valid health care service, the Report does not convey that change of heart. First, Report UU states that the AMA knows of no scientific evidence to support spinal manipulation and adjustment as appropriate treatment for such diseases as cancer, diabetes, and infections. It does not declare support for that which the AMA seemingly now approves — manipulation for musculoskeletal problems. Next the Report condemns the single cause of disease theory and states that “chiropractors disagree on the extent to which they accept or reject traditional chiropractic doctrine.” The Report does not state that the two major chiropractic associations had rejected the doctrine in 1969. But the Report continues:

Describing chiropractic as an “unscientific cult” does not, however, necessarily mean that everything a chiropractor may do when acting within the scope of his or her license granted by the state is without therapeutic value, nor does it mean that all chiropractors should be equated with cultists. It is better to call attention to the limitations of chiropractic in the treatment of particular ailments than to label chiropractic an “unscientific cult.”

The Report then reaffirms that a physician should at all times practice a method of healing founded on a scientific basis. This again directly tied into Principle 3 which prohibited association with unscientific practitioners. Although the Report ends by stating that a medical physician may refer a patient to a limited licensed practitioner permitted by low to furnish such services, there is no particular reference to chiropractors. Report UU was obviously written by lawyers in an effort to bring the AMA into compliance with the antitrust laws, and not a bold change of position designed to reverse the attitudes of the AMA members formed, at least in port, by the then eleven-year-old boycott.

In December of 1978, the AMA House of Delegates adopted Resolution 14 which provided that medical physicians “continue to exercise the duty to expose unscientific practices and practitioners while supporting and protecting the freedom of individuals to choose among physicians, other licensed practitioners or religious healers as part of the American tradition.” It is hard to tell the purpose of this resolution, other than to suggest a similarity between chiropractors and Elmer Gantry, but it once again keyed into Principle 3 which condemned association with unscientific practitioners.

In 1980 the AMA adopted a completely revised version of the principles of medical ethics. Principle 3 finally was eliminated. The new principles provided that a medical physician “shall be free to choose whom to serve, with whom to associate, and the environment in which to provide medical services.” The revised principles theoretically do allow association with chiropractors but there is no explicit reference to chiropractors in the new code.

The revised code received a fair amount of publicity in the medical and private press in 1980. The revision was interpreted as changing the AMA’s position on chiropractic in response to various pressures, including the legal climate. And yet, two years later, when Dr. Daniel T. Cloud, who was then finishing his term as president of the AMA, was asked in a formal interview whether the 1980 ethics code changed the position of doctors with regard to chiropractors — “Was there a change?” — he stated, “No.” This fairly bizarre answer (considering the nature of the publicity the ethics revision received) today is explained by the AMA’s lawyers-as a technically accurate answer since, they assert, the change in position was accomplished in 1977 and 1979. Yet today the AMA relies on the revision of the ethical standards in 1980 as part of its change in position on chiropractic. The lawyers’ argument is not persuasive. In 1982 the president of the AMA appears to be announcing that the AMA has not changed its position on chiropractic.

In 1983 the AMA participated in the revision of the JCAH accreditation standards for hospitals. The revision process started in 1982 with recommendations from the JCAH staff and the JCAH Standards-Survey Procedures Committee that each hospital, through its governing body, be permitted to decide for itself, under applicable state low, which licensed health care providers would be allowed hospital privileges and membership on the medical staff. The AMA initially supported this approach but it was severely criticized by its members and other medical societies which wanted to ensure medical and osteopathic physician control of the medical staff and patient care in hospitals. As a result of this criticism, the AMA changed its position and supported revisions which would ensure such control. In February of 1983, the AMA voted to recommend revised standards that would require the medical staff of each hospital to have an “executive committee,” the majority of which had to be medical or osteopathic physicians. The executive committee would make recommendations to the hospital’s governing body for its approval of credentialing, membership on the medical staff, hospital privileges delineations, and structure of the medical staff. Any dispute between the medical staff and the governing body of the hospital would have to be resolved jointly by them. In late 1983, JCAH adopted the new standards which included the mandatory, medical physician dominated executive committee concept.

The plaintiffs rely heavily on the 1983 accreditation standards to show that the conspiracy was ongoing. This issue is discussed generally in the section of this opinion dealing with JCAH, and, in short, I have rejected the argument. What is noteworthy with respect to the AMA, however, is that although it believed that the standards originally proposed by the JCAH Standards-Survey Procedures Committee were more in tune with the existing antitrust “legal climate,” it was unable to sustain its position when faced with substantial criticism of its members and other medical groups.

Through the date of the trial, the AMA continued to respond to requests for information on chiropractic which it received from AMA members and others by sending out anti -chiropractic literature. The old boycott language has been eliminated, but the AMA has not had anything positive to say about chiropractic. It was not until mid-way through the trial of this case that the AMA announced that chiropractic has improved and that at least some forms of chiropractic treatment and joint adjustments are scientific. The membership has never been informed of this position.

The plaintiffs argue that the AMA boycott began in 1966 and continued until 1983 when the JCAH accreditation standards were revised. The AMA argues that Report UU and the 1977 opinions constituted a change in the AMA’s policy on chiropractors. I reject both positions. Report UU and the 1977 opinions were clearly inadequate to announce a change in the AMA policy, and probably deliberately so. This is well demonstrated by the American College of Physicians’ analysis of the 1977 revisions of the opinions. In a 1978 report to its members, the ACP stated:

In 1977, as noted above, a revision of the Judicial Council interpretations of the AMA Principles of Medical Ethics appeared. The explicit language of 1966 was absent; there was no reference to chiropractic per se. In many places, the language used was unclear and ambiguous.

Paragraph 1, Section 3.50, of the 1977 Judicial Council Opinions and Reports does, however, remain forthright:

“A physician should not use unscientific methods of treatment, nor should he voluntarily associate professionally with anyone who does. it is wrong to engage in, or to aid and abet in treatment which has no scientific basis and is dangerous, is calculated to deceive the patient by giving him false hope, or which may cause the patient to delay in seeking proper care until his condition becomes irreversible.”

This interpretation supports the court’s view that the 1977 opinions were ambiguous and that the use of the key phrase “unscientific methods” continued to signal the existence of the boycott. I conclude that the AMA and its members engaged in a group boycott or conspiracy against chiropractors from 1966 to 1980, when Principle 3 was first eliminated. [Dr. Sammons was a willing participant in the conspiracy. An AMA trustee, Dr. Sammons was on the Committee on Quackery Oversight Panel of the Board of Trustees of the AMA and recommended continued funding of the Committee with knowledge that its prime mission was to be to contain and eliminate chiropractic. Dr. Sammons presently is the Executive Vice President of the AMA.]

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