Memorandum Opinion and Order:
Liability of Remaining Defendants
3. American College of Physicians (ACP)
ACP never had a code of ethics. In 1984, it published the American College of Physicians Ethics Manual. The document was not a code or set of regulations but “a modest effort to address major contemporary issues that confront every physician in practice” and an effort “to stimulate reasonable debate so as to widen the area of agreement on medical ethics shared by the lay public, physicians, and others who take part in health care.” With respect to relationships with other health professionals, the Manual states that
there are no rigid guidelines, but rather each situation must be approached in a context of the realities of the practice environment and state low … Degrees of responsibility must be dictated by the competence of the allied health professionals and the nature of the actual practice setting … The patient should be told about the variety and availability of such service, which can be facilitated through cooperation between physicians and licensed allied health professionals.
With respect to “non-scientific medical systems,” the Manual states that a patient’s request for care “outside the orthodox medical system” warrants “the physician’s considerate attention” and that the physician “should not abandon the patient if he should elect to try a non-scientific remedy” but that the physician “should not participate in such treatment.” The Manual states nothing about chiropractic or about what remedies are or are not “scientific.” It appears to leave the individual physician free to make his own judgments as to the kinds of treatment he should participate in and his relations with other licensed health practitioners.
Importantly, ACP never adopted the AMA’s Principles and never required its members to subscribe to those principles. The only reference to ethics in ACP’s governing provisions was the statement in its constitution and bylaws that the purpose of the ACP included “preserving the history and perpetuating the best tradition of medicine and medical ethics.”
Prior to the filing of this lawsuit in 1976, ACP considered the subject of chiropractic only once. On July 31, 1974, Daniel S. Ellis, M.D. wrote to Dr. Edward Rosenow Jr., the executive vice president of ACP, stating that he had been asked by the Chairman of the Committee on Quackery, Dr. Ballantine, to see if ACP would send a statement to the National Institute of Neurological Diseases and Stroke (“NINDS”), which was conducting a congressionally mandated study of chiropractic. Dr. Rosenow must have agreed to do it because on September 4, 1974, he wrote to Donald B. Tower, M.D., Acting Director of NINDS. The letter stated in part:
Although the Board of Regents of the College will not meet until November to take any specific action on the inclusion of chiropractic in Medicare and Medicaid, I am sure that they would be most distressed to find that the government was considering the inclusion of this non-scientifically based form of practice under Medicare and Medicaid … The College, I am sure, would agree with the statement on chiropractic adopted by the American Medical Association’s House of Delegates in 1966. . . .
The letter then quoted the AMA’s policy statement. The ACP Board of Regents, however, did not later adopt the AMA’s policy.
ACP argues strongly that this letter is protected under the Noerr-Pennington doctrine. I agree. The letter was written to a governmental agency in connection with a government project (the study of chiropractic) and it is also apparent from the letter that Dr. Rosenow was acting under the misapprehension (incredible as that may be) that chiropractic had not yet been included in Medicare and Medicaid. That, in fact, had happened a year earlier. Nevertheless, Dr. Rosenow appeared to believe that the letter was written to influence government action on the issue of the inclusion of chiropractic into Medicare and Medicaid. Even if the letter was not protected, it clearly reveals that it expresses Dr. Rosenow’s opinion as to what action the Board of Regents might take in the future and it is not the act of ACP endorsing the AMA chiropractic policy statement. Furthermore, ACP had no member on the Committee of Quackery and there is no evidence that ACP had knowledge of the activities of the Committee.
After this lawsuit and several other chiropractic lawsuits were filed, Dr. Jeremiah Barondess, the president of ACP, wrote to ACP members, principally about the defense of the lawsuits. Dr. Barondess viewed the lawsuits as an effort by chiropractors to gain legitimacy, The letter states in part:
Our concern about these suits does not relate to their merit; indeed, we feel strongly that they have no merit whatever … All have agreed that the issue that is paramount is the health of the population of this country, and that the only ethical position for the College to take in relation to these efforts by the chiropractors is to resist them as strongly as possible.
The letter also discusses various settlements of chiropractic lawsuits by the AMA and other co-defendants and seeks the support of the membership in the defense of this lawsuit. This letter is protected under the Noerr-Pennington doctrine.
In September of 1978, there was a meeting of the Board of Governors of the ACP (the Board of Governors was not the policy making body – that was the Board of Regents). At the meeting the Board heard and accepted a report by the ad hoc committee appointed to suggest what might be done at the chapter or regional level to promote the College’s policy toward chiropractic. The minutes of the meeting reflect that:
The Committee agreed unanimously that ACP should be concerned about and oppose any action which would include chiropractic among the scientifically-based modes of medical care and which would give chiropractors direct access to the diagnostic facilities of hospitals.
The Board of Governors then adopted the following resolution:
- (1) the regents and ACP staff should keep the Governors informed of development in the North Penn case and related actions;
- (2) the Governors should remain alert to efforts of chiropractors to gain access to radiographic and clinical laboratory diagnostic facilities in their regions and keep ACP headquarters informed of such developments;
- (3) the membership of the College should be informed by special mailing regarding the status of the North Penn and Wilk cases and be provided with background information regarding the strategy of intervention;
- (4) the aforementioned mailing to the membership should include information on the nature of chiropractic;
- (5) the Governors should discuss these issues with the College membership in their regions and prepare them for the possibility of a voluntary assessment to support the legal defense;
- (6) the Governors should consider contacting the Attorney General or Medical Practice Committee of their state legislature regarding the efforts of chiropractors to gain access to certain diagnostic facilities, raising the question of the legality of such arrangements;
- (7) the Governors should review the current roster of AMA Trustees and consider, if appropriate, discussing the North Penn agreement and related topics with them on an individual basis;
- (8) the Governors should alert colleagues in other disciplines to the efforts of chiropractors to gain access to radiographic and clinical pathology diagnostic facilities; and
- (9) the Governors and the College members in their regions should discuss these matters with their county and state medical societies and with their representatives to the House of Delegates of the AMA.
Many parts of the resolution relate to matters protected under the Noerr-Pennington doctrine, but not all. Nevertheless, in carefully reviewing the list, there is no call for the participation of ACP or its members in the AMA’s boycott against chiropractors or ACP’s own boycott. I see no evidence in the resolution of any agreement to join the AMA conspiracy. The activity is independent of the AMA’s boycott. Moreover, the resolution was never implemented and there is no evidence that ACP members were called upon to cooperate in effectuating ACP’s “policy” on chiropractic.
Finally, ACP was one of four medical specialty societies which prepared a Status Report on the Chiropractic Lawsuits in 1978. The report was distributed to ACP members. I held during the trial that the report is protected activity but that to the extent it contains relevant admissions of fact, it is admissible. The report does contain an admission that Principle 3 forbade association with chiropractors. This admission is relevant to a medical specialty society, such as the American Academy of Orthopaedic Surgeons, which had adopted the AMA’s Principles. It is not relevant to ACP which had not adopted the Principles and which did not have a medical ethic similar to Principle 3.
ACP is a member owner of JCAH. However, I hove already found that the members are not legally responsible for JCAH’s accreditation standards before 1983, and that the actions of the JCAH members in connection with the 1983 revisions of the hospital standards do not constitute evidence of participation in a conspiracy against chiropractors. Thus, ACP’s membership in JCAH is not material.
On the basis of the evidence, I conclude that plaintiffs have failed to establish ACP’s participation in the boycott or conspiracy. Plaintiffs have also failed to establish a separate conspiracy between ACP and its members. Accordingly, judgment shall enter in favor of ACP.