Chiropractic Antitrust Suit: Liability of the American Academy of Orthopaedic Surgeons

Memorandum Opinion and Order:
Liability of Remaining Defendants

4. American Academy of Orthopaedic Surgeons (AAOS)

From early on, the exact date is not known, AAOS required its members to pledge compliance with the AMA’s Principles of Medical Ethics. This required compliance with Principle 3. Prior to January 30, 1981, again the exact date is not known, AAOS’s bylaws were amended to delete this requirement.

In 1966, Dr. David B. Stevens, a Kentucky orthopedic surgeon, sent a copy of the Kentucky Medical Society’s anti -chiropractic resolution to Sam Youngerman, a lawyer with the AMA’s Department of Investigation. Stevens also sent Youngerman a draft of a resolution to be proposed by Stevens to the AAOS. Youngerman proposed less “monopolistic” language which would have the 11 some intent.” Stevens adopted Youngerman’s proposed changes and deleted references to the “elimination” of chiropractic. Some argument could be made that at this point Stevens and the AMA are conspiring and that only they knew that the true intent of the resolution was to eliminate and contain chiropractic (which, according to Youngerman would indicate a monopolistic intent).

On January 16, 1967, there was a meeting of the AAOS resolutions committee. Stevens and three others proposed affirmance of the AMA anti -chiropractic policy. Youngerman was an “official guest” at the meeting and “was able to offer the committee helpful advice and suggestions.” The AMA’s 1966 anti-chiropractic policy statement was presented. AAOS adopted a resolution affirming the AMA’s policy statement that chiropractic was an unscientific cult and constituted a hazard to health. The resolution also requested the Executive Committee of AAOS to establish activities to alert the professional and lay public of the hazards of unscientific practice and to participate in the medical profession’s program to reduce such dangers to the public health. Although there was no explicit reference to the prohibition of professional association with chiropractors, the reasonable inference is that AAOS knew that a significant part of the medical profession’s program to reduce chiropractic dangers to the public health was the prohibition against association with chiropractors. This inference is based on Youngerman’s participation at the meeting of the resolutions committee and it is also further supported by the admission made by AAOS in the Status Report on Chiropractic Lawsuits dated October 27, 1978. In this report AAOS acknowledged that Principle 3 proscribed all voluntary association with chiropractors and submitted to the belief that this interpretation of Principle 3 should not be changed.

AAOS argues that the passing of the 1967 resolution was protected Noerr-Pennington activity because the AAOS resolution was obtained by the Committee on Quackery in connection with the Committee’s legislative activities. In support of this argument, AAOS relies on a portion of Dr. Stevens’ testimony (at pp. 2196-98) during which he is responding to a series of leading questions which assumed that at the time Stevens was presenting his resolution to AAOS he was also a member of the Committee on Quackery, and that his activity was on behalf of the Committee on Quackery. The evidence in this record does not support that assumption. Dr. Stevens testified that he joined the Committee in 1967, but he did not state it was as early as January. He frankly could not recall. The Court of Appeals in Wilk referred to the fact that Stevens joined the Committee on Quackery in 1968. During the first trial AAOS’s counsel informed the court that Dr. Stevens joined the Committee on Quackery one and one-half years after the AAOS resolution was adopted. (See p. 866 of the first trial transcript.) AAOS cannot argue in one trial that Stevens joined the Committee on Quackery in 1968 and in this trial that he joined the Committee before January 17, 1967. There is no factual basis for the Noerr-Pennington argument made before this court. There is no evidence that AAOS was acting in furtherance of any political goals when it adopted its anti-chiropractic policy.

In 1972, a member of the AAOS complained to the Academy about pro-chiropractic legislation in California and AAOS wrote to the AMA stating “we are aware of your stated position in this matter.” This shows an awareness of the AMA’s position but not of any particular activities.

In 1974, there was some activity involving AAOS and the American College of Surgeons regarding the study of chiropractic being undertaken by the NINDS. I have already held, in connection with ACP, that attempts to influence NINDS, a governmental agency, was protected activity. Also in 1974, a neurosurgeon told the American College of Chiropractic Orthopedists that Principle 3 prevented him from speaking to the group and he canceled his commitment to speak. There is no evidence, however, that this doctor was acting this way because of his membership in the AMA or in AAOS.

On February 23, 1986, AAOS formally rescinded its anti-chiropractic resolution. It included the resolution among several other obsolete” resolutions and the membership was asked to approve the deletion of these “obsolete” resolutions. There was no affirmative statement that the policy had been rescinded or was wrong.

During the entire relevant period AAOS never attempted to enforce the AMA’s Principles against any members. However, the bylaws did have discipline procedures. Dr. Freitag, an orthopedic surgeon who testified on behalf of the plaintiffs, regularly associates with chiropractors. He had some concerns about his association with chiropractors in connection with passing his specialty boards, but he in fact encountered no difficulty. Several of the plaintiffs have professionally associated with orthopedic surgeons,

In a separate order dated October 25, 1983, the Court of Appeals affirmed the trial court’s denial of AAOS’s motion for directed verdict at the end of the first trial, holding as follows:

However, the evidence permitted the jury to find: that there was communication between the AMA and AAOS on the subject of chiropractic; that this communication revealed acquiescence by AAOS in the AMA view that chiropractic is unscientific cultism; and that by adopting the essence of the 1966 AMA policy statement, in combination with AMA’s Principle 3, AAOS endeavored to discourage medical doctors from professional association with chiropractors.

On the basis of the evidence, I find that AAOS knowingly joined the conspiracy. Whether it adopted Principle 3 of the AMA’s Principles intending to boycott chiropractors is not decisive. When AAOS adopted the 1966 AMA policy statement branding chiropractors as unscientific cultists, it knew that it was prohibiting association with chiropractors. This is clear from the 1978 Status Report. AAOS consciously participated in the conspiracy. The evidence clearly establishes that AAOS was not acting independently.

AAOS relied on the same evidence as the AMA on the patient care defense. That evidence is inadequate to establish that defense.

The question of whether an injunction should issue is not so easily answered. AAOS took no corrective action until 1986, many years after the corrective action taken by the AMA. Orthopedic surgeons are direct competitors of chiropractors and they directly benefited from the boycott. However, the actions of AAOS which tied it to the AMA conspiracy occurred in 1966. Apart from protected activity, it did not actively participate in the boycott after 1967. Most of the facts which led the court to enjoin the AMA simply are not present in the evidence against AAOS. I conclude that there is no likelihood that AAOS would renew any boycott or conspiracy against chiropractors. I find that an injunction should not issue against AAOS.

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