Chiropractic Antitrust Suit: Liability of the American College of Surgeons

Memorandum Opinion and Order:
Liability of Remaining Defendants

5. American College of Surgeons (ACS)

In June of 1966, the then Director of ACS responded to an unsolicited inquiry from the Michigan State Medical Society regarding the ACS position on relationships between medical physicians and chiropractors. The Director called the AMA to find that the answer was that there should be no relationships and he then responded to the Michigan State Medical Society. He stated that “the College has never taken an official position. . . . We have followed the lead of the AMA, which is not always entirely clear.” However, the Director also stated the AMA’s position. At this time ACS hod not adopted or endorsed the AMA’s Principles. Nor had ACS endorsed the AMA’s 1966 anti-chiropractic policy statement. Nevertheless, this incident shows the willingness of ACS to follow the AMA’s lead.

In 1974, there was considerable anti-chiropractic activity by ACS, spearheaded by the College’s Executive Director, Dr. C. Rollin Hanlon. The Board of Regents appointed an ad hoc committee to draw up a position statement regarding chiropractic for submission to the Board. In a letter from one committee member to another the following statements were made:

The developments which have given rise to the feeling that ACS should issue a public statement at this time include:
1. The inclusion of chiropractic under PL92-603 among the services available to Medicare and Medicaid beneficiaries.
2. The determination by the U.S. Commissioner of Education that a College of Chiropractic had met the definition of an institution of higher education eligible to receive federal funds.
3. The attempt by the Idaho Association of Chiropractic Physicians to obtain authorization for chiropractors to perform the periodic medical examination required for drivers of commercial vehicles.
4. The enthusiastic acceptance by the public and certain physicians of acupuncture as a therapeutic modality. If this discipline, for which there is currently no known scientific basis gains approval, one of the fundamental objections to the philosophy of chiropractic is demolished.
5. The appropriation of funds by Congress for a study of chiropractic fundamentals by the National Institute of Neurological Diseases and Stroke in cooperation with the National Institute of General Medical Science.
6.The failure of licensure to protect the public from the hazards of chiropractic while providing a shield of legitimacy for the cult.
There are a number of options open to our committee:
1. An independent study of chiropractic.
2. A letter of support for H. Thomas Ballantine, M.D., F.A.C.S., Chairman of the A.M.A. Committee on Quackery, for his recent report presented at the Southeast Regional Conference on Health Quackery-Chiropractic.
3. Endorsement of the statement on chiropractic adopted by the A.M.A. House of Delegates in November 1966 as has been done by the American Surgical Association, the American Thoracic Society and others.
4. Preparation of a concise ACS position paper for submission to the Board of Regents.
It is the fourth option which Dr. Hanlon feels most nearly complies with the charge to our committee.

Several things are clear from this letter. First, ACS viewed chiropractic as a cult, without scientific basis, and was concerned with the success of chiropractic on several fronts, including inclusion in Medicare and Medicaid. The purpose behind the committee was to develop a public statement about chiropractic and that statement would be negative.

The committee apparently did prepare a “Statement Regarding the inclusion of Chiropractic in Medicare and Medicaid” which was presented to and adopted by the Board of Regents on June 19, 1974. The Statement did two things. It protested Congress’s inclusion of chiropractic in Medicare and Medicaid in the Social Security Amendment of 1972 and it stated that ACS “endorses the statement on Chiropractic adopted by the American Medical Association House of Delegates in 1966.” The Statement then quoted the policy statement in full.

Eight days later Dr. Hanlon, the Director of ACS, sent the ACS statement to Dr. Ballantine, a member of the AMA Committee on Quackery, with a copy to Doyl Taylor, chairman of the AMA’s Deportment of Investigation. He states in the letter: “I bring this to your attention in view of the pending AMA Conference on Chiropractic sponsored by your Committee on Quackery. The statement will be given wide circulation to medical societies and will be published in a future issue of the College Bulletin. I hope to be present at your meeting this Saturday.”

And Dr. Hanlon did attend the Committee on Quackery’s invitation meeting on June 22, 1974. There were approximately fifty participants. After the meeting, Dr. Hanlon wrote a memo to the members of the ACS ad hoc committee on chiropractic and stated:

The AMA was highly laudatory toward the statement on chiropractic approved by the Regents earlier this month. Plans are under way to give this statement broad distribution by ACS and AMA.

ACS argues that Dr. Hanlon was only interested in attending the meeting to hear the Assistant Director of the Social Security Administration who spoke on the inclusion of chiropractic under Medicare. It is true that Dr. Hanlon’s notes of the meeting deal only with the Assistant Director’s speech. However, it is also true that Dr. Hanlon was impressed with the AMA’s praise of ACS’s antichiropractic statement and he obviously joined in the AMA’s plans to broadly distribute the statement jointly with the College.

On June 25, 1974, after the AMA meeting, Dr. Hanlon caused the ACS statement to be widely distributed to governmental agencies and medical societies. Although the cover letter indicated that the statement concerned the inclusion of chiropractic in Medicare and Medicaid and it invited comments, it did not state that the statement was being distributed in order to gain support for political activity or petitioning the government for legislative action. A press release was issued July 1, 1974. After this flurry of activity, the statement was not published any further.

ACS argues that all of this activity is protected under the Noerr-Pennington doctrine. It is difficult to see what legislative or administrative governmental activity ACS was attempting to influence. All of the ACS concerns were based on legislative events which had already occurred. Chiropractic hod been included in Medicare and Medicaid the prior year. An accrediting body for chiropractic hod been approved by Congress. Congress had appropriated funds for a study of chiropractic by NINDS. It seems clear from the evidence that in view of all these events the College decided that it was time to take a public stand against chiropractic – to stem the tide if it could. Shortly after that decision was made, Dr. Hanlon worked closely with the Chairman of the AMA Committee on Quackery. I conclude that during this period of time the statement was intended by ACS’s Director to be used in furtherance of the AMA boycott. The statement itself, and the use of the statement, was more than independent action by ACS. ACS, through its Director, knew of the Committee on Quackery and its activities. it is reasonable to assume the Director knew of the boycott.

Dr. H. Thomas Ballantine, M.D. (a former defendant) was Chairman of the Committee on Quackery and a member of ACS. He had many conversations with key people within ACS regarding the AMA’s anti -chiropractic campaign. At his deposition in 1978, Dr. Ballantine testified that in his conversations with both an officer and the Director of ACS, they would discuss the fact that chiropractors still wished to consider chiropractic a separate health care profession and “we cannot tolerate that … We, the physicians of the United States, regardless of our specialty.” The lost time Ballantine talked to Dr. Hanlon about chiropractors was in 1974 or 1975. (Ballantine Dep. at 260-63).

In May of 1974, Dr. Ballantine asked ACS Director Hanlon to write to Dr. Tower of NINDS in connection with the government study of chiropractic being undertaken, and a letter was written. As I have already held, this activity is protected under the Noerr-Pennington doctrine.

On November 1, 1974, ACS published its Statement on Principles. The College had been working on this for several years. The preamble to the Statement included the following: “The College endorses the ‘Principles of Medical Ethics’ of the American Medical Association.” Thus, between June and November, 1974, ACS had both publicly endorsed the AMA policy identifying chiropractic as an unscientific cult and publicly endorsed the AMA’s Principles.

The endorsement of the AMA’s Principles was deleted from the Preamble in 1980 or 1981, but by this time, Principle 3 hod been deleted from the AMA’s Principles. Dr. Hanlon testified that the endorsement of the AMA’s Principles was not related to chiropractic in any way and was not made at the instance of the AMA. However, in the 1978 Status Report on the Chiropractic Lawsuit, ACS admitted that Principle 3 prohibited all association with chiropractors and condemned the 1977 change in AMA policy. The important fact is that the adoption of an ethical prohibition against association with unscientific practitioners, combined with the College’s public condemnation of chiropractors as unscientific practitioners, forcefully told the ACS members that they should not associate with chiropractors.

ACS has never disciplined a member for violating the AMA’s Principles or for associating with a chiropractor. Fellows of the College can only be disciplined for violating the bylaws, and those make no mention of chiropractic. ACS maintains that it has no policy regarding interprofessional association with chiropractors and has no plans to adopt such a policy.

In 1983, ACS actively lobbied in favor of the more restrictive accreditation standards during the revision of the JCAH standards and the ACS Commissioners voted in favor of the more restrictive standards. Dr. Hanlon was concerned that under the original proposals, it would have been, possible for a chiropractor to be admitted to the medical staff of a hospital. This statement shows an intent to keep chiropractors out of hospitals, notwithstanding the fact that under some state laws chiropractors are permitted to be on hospital staffs.

I find from the evidence that ACS was a member of the conspiracy and that its actions were not independent of the AMA boycott. The evidence further establishes a conspiracy between ACS and its members. ACS has failed to establish the patient care defense.

I am persuaded that an injunction is necessary. ACS’s actions were more egregious than those of AAOS, which the court has declined to enjoin, but less egregious than those of the AMA. Its active boycott activities ceased in the mid-1970s but it did not eliminate adherence to the AMA’s Principles until after Principle 3 had been deleted from those Principles. In 1982, its director

Dr. Hanlon was intent on preventing chiropractors from being admitted to hospital medical staffs. ACS has never informed its members that the boycott is over and that its ban on association with chiropractors was wrong and has been lifted. The boycott has lingering effects. it is likely that ACS would again engage in similar boycott activities if presented with the opportunity. Accordingly, some form of injunction is necessary and the parties are requested to confer with respect to the form of the injunction.

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