IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
CHESTER A. WILK, et al., Plaintiffs, v.
AMERICAN MEDICAL ASSOCIATION, et al., Defendants.
No. 76 C 3777
The court conducted a lengthy trial of this case in May and June of 1987 and on August 27, 1987, issued a 101-page opinion finding that the American Medical Association (“AMA”) and its members participated in a conspiracy against chiropractors in violation of the nation’s antitrust laws. Thereafter on opinion dated September 25, 1987 was substituted for the August 27, 1987 opinion. The question now before the court is the form of injunctive relief that the court wi I I order.
As port of the injunctive relief to be ordered by the court against the AMA, the AMA shall be required to send a copy of this Permanent Injunction Order to each of its current members. The members of the AMA are bound by the terms of the Permanent Injunction Order if they act in concert with the AMA to violate the terms of the order. Accordingly, it is important that the AMA members understand the order and the reasons why the order has been entered.
The AMA’s Boycott and Conspiracy
In the early 1960s, the AMA decided to contain and eliminate chiropractic as a profession. In 1963 the AMA’s Committee on Quackery was formed. The committee worked aggressively — both overtly and covertly — to eliminate chiropractic. One of the principal means used by the AMA to achieve its goal was to make it unethical for medical physicians to professionally associate with chiropractors. Under Principle 3 of the AMA’s Principles of Medical Ethics, it was unethical for a physician to associate with an “unscientific practitioner,” and in 1966 the AMA’s House of Delegates passed a resolution calling chiropractic an unscientific cult. To complete the circle, in 1967 the AMA’s Judicial Council issued an opinion under Principle 3 holding that it was unethical for a physician to associate professionally with chiropractors.
The AMA’s purpose was to prevent medical physicians from referring patients to chiropractors and accepting referrals of patients from chiropractors, to prevent chiropractors from obtaining access to hospital diagnostic services and membership on hospital medical staffs, to prevent medical physicians from teaching at chiropractic colleges or engaging in any joint research, and to prevent any cooperation between the two groups in the delivery of health care services.
The AMA believed that the boycott worked — that chiropractic would have achieved greater gains in the absence of the boycott, Since no medical physician would want to be considered unethical by his peers, the success of the boycott is not surprising. However, chiropractic achieved licensing inall 50 states during the existence of the Committee on Quackery.
The Committee on Quackery was disbanded in 1975 and some of the committee’s activities become publicly known. Several lawsuits were filed by or on behalf of chiropractors and this case was filed in 1976.
Change in AMA’s Position on Chiropractic
In 1977, the AMA began to change its position on chiropractic. The AMA’s Judicial Council adopted new opinions under which medical physicians could refer patients to chiropractors, but there was still the proviso that the medical physician should be confident that the services to be provided on referral would be performed in accordance with accepted scientific standards. In 1979, the AMA’s House of Delegates adopted Report UU which said that not everything that a chiropractor may do is without therapeutic value, but it stopped short of saying that such things were based on scientific standards. It was not until 1980 that the AMA revised its Principles of Medical Ethics to eliminate Principle 3. Until Principle 3 was formally eliminated, there was con. siderable ambiguity about the AMA’s position. The ethics code adopted in 1980 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 AMA settleck three chiropractic lawsuits by stipulating and agreeing that under the current opinions of the Judicial Council a physician may, without fear of discipline or sanction by the AMA, refer a patient to a duly licensed chiropractor when he believes that referral may benefit the patient. The AMA confirmed that a physician may also choose to accept at to decline patients sent to hini by a duly licensed chiropractor. Finally, the AMA con. firmed that a physician may teach at a chiropractic college or seminar. These settlements were entered into in 1978, 1980, and 1986.
The AMA’s present position on chiropractic, as stated to the court, is that it is ethical for a medical physician to professionally associate with chiropractors provided the physician believes that such association is in the best interests of his patient. This position has not previously been communicated by the AMA to its members.
Under the Sherman Act, every combination or conspiracy in restraint of trade is illegal. The court has held that the conduct of the AMA and its members constituted a conspiracy in restraint of trade based on the following facts: the purpose of the boycott was to eliminate chiropractic; chiropractors are in competition with some medical physicians; the boycott had substantial anti-competitive effects; there were no pro-competitive effects of the boycott; and the plaintiffs were injured as a result of the conduct. These facts add up to a violation of the Sherman Act.
In this case, however, the court allowed the defendants the opportunity to establish a “patient care defense” which has the following elements: (1) that they genuinely entertained a concern for what they perceive as scientific method in the care of each person with whom they have entered into a doctor-patient relationship; (2) that this concern is objectively reasonable; (3) that this concern has been the dominant motivating factor in defendants’ promulgation of Principle 3 and in the conduct intended to implement it; and (4) that this concern for scientific method in patient care could not have been adequately satisfied in a manner less restrictive of competition.
The court concluded that the AMA had a genuine concern for scientific methods in patient care, and that this concern was the dominant factor in motivating the AMA’s conduct. However, the AMA failed to establish that throughout the entire period of the boycott, from 1966 to 1980, this concern was objectively reasonable. The court reached that conclusion on the basis of extensive testimony from both witnesses for the plaintiffs and the AMA that some forms of chiropractic treatment are effective and the fact that the AMA recognized that chiropractic began to change in the early 1970s. Since the boycott was not formally over until Principle 3 was eliminated in 1980, the court found that the AMA was unable to establish that during the entire period of the conspiracy its position was objectively reasonable. Finally, the court ruled that the AMA’s concern for scientific method in patient care could have been adequately satisfied in a manner less restrictive of competition and that a nationwide conspiracy to eliminate a licensed profession was not justified by the concern for scientific method. On the basis of these findings, the court concluded that the AMA had failed to establish the patient care defense.
None of the court’s findings constituted a judicial endorsement of chiropractic. All of the parties to the case, including the plaintiffs, and the AMA, agreed that chiropractic treatment of diseases such as diabetes, high blood pressure, cancer, heart disease and infectious disease is not proper, and that the historic theory of chiropractic, that there is a single cause and cure of disease was wrong. There was disagreement between the parties as to whether chiropractors should engage in diagnosis. There was evidence that the chiropractic theory of subluxations was unscientific, and evidence that some chiropractors engaged in unscientific practices. The court did not reach the question of whether chiropractic theory was in fact scientific. However, the evidence in the case was that some forms of chiropractic manipulation of the spine and joints was therapeutic. AMA witnesses, including the present Chairman of the Board of Trustees of the AMA, testified that some forms of treatment by chiropractors, including manipulation, can be therapeutic in the treatment of conditions such as back pain syndrome.
Need for Injunctive Relief
Although the conspiracy ended in 1980, there are lingering effects of the illegal boycott and conspiracy which require an injunction. Some medical physicians’ individual decisions on whether or not to professionally associate with chiropractors are still affected by the boycott. The injury to chiropractors’ reputations which resulted from the boycott has not been repaired. Chiropractors suffer current economic injury as a result of the boycott. The AMA has never affirmatively acknowledged that there are and should be no collective impediments to professional association and cooperation between chiropractors and medical physicians, except as provided by low. Instead, the AMA has consistently argued that its conduct has not violated the antitrust laws,
Most importantly, the court believes that it is important that the AMA members be made aware of the present AMA position that it is ethical for a medical physician to professionally associate with a chiropractor if the physician believes it is in the best interests of his patient, so that the lingering effects of the illegal group boycott against chiropractors finally can be dissipated.
Under the law, every medical physician, institution, and hospital has the right to make an individual decision as to whether or not that physician, institution, or hospital shall associate professionally with chiropractors. Individual choice by a medical physician voluntarily to associate professionally with chiropractors should be governed only by restrictions under state low, if any, and by the individual medical physician’s personal judgment as to what is in the best interests of a patient or patients. Professional association includes referrals, consultations, group practice in partnerships, Health Maintenance Organizations, Preferred Provider Organizations, and other alternative health care delivery systems; the provision of treatment privileges and diagnostic services (including radiological and other laboratory facilities) in or through hospital facilities; association and cooperation in educational programs for students in chiropractic colleges; and cooperation in research, health care seminars, and continuing education programs.
An injunction is necessary to assure that the AMA does not interfere with the right of a physician, hospital, or other institution to make an individual decision on the question of professional association.
Form of Injunction
1. The AMA, its officers, agents and employees, and all persons who act in active concert with any of them and who receive actual notice of this order are hereby permanently enjoined from restricting, regulating or impeding, or aiding and abetting others from restricting, regulating or impeding, the freedom of any AMA member or any institution or hospital to make an individual decision as to whether or not that AMA member, institution, or hospital shall professionally associate with chiropractors, chiropractic students, or chiropractic institutions.
2. This Permanent Injunction does not and shall not be construed to restrict or otherwise interfere with the AMA’s right to take positions on any issue, including chiropractic, and to express or publicize those positions, either alone or in conjunction with others. Nor does this Permanent Injunction restrict or otherwise interfere with the AMA’s right to petition or testify before any public today on any legislative or regulatory measure or to join or cooperate with any other entity in so petitioning or testifying. The AMA’s membership in a recognized accrediting association or society shall not constitute a violation of this Permanent Injunction.
3. The AMA is directed to send a copy of this order to each AMA member and employee, first class mail, postage prepaid, within thirty days of the entry of this order. In the alternative, the AMA shall provide the Clerk of the Court with mailing labels so that the court may send this order to AMA merpbers and employees.
4. The AMA shall cause the publication of this order in JAMA and the indexing of the order under “Chiropractic” so that persons desiring to find the order in the future will be able to do so.
5. The AMA shall prepare a statement of the AMA’s present position on chiropractic for inclusion in the current reports and opinions of the Judicial Council with an appropriate heading that refers to professional association between medical physicians and chiropractors, and indexed in the some manner that other reports and opinions ore indexed. The court imposes no restrictions on the AMA’s statement but only requires that it be consistent with the AMA’s statements of its present position to the court.
6. The AMA shall file a report with the court evidencing compliance with this order on or before January 10, 1988.
It is so ordered.