I am happy to report that the honorable Judge Charles L. Brieant of the US District court has deemed that the case of AAPS vs. NY-DOH has merit and will go forward. He denied the motion by the NY-DOH lawyers to dismiss the case, as indicated in his opinion (click link below).
Link: Motion to Dismiss Denied
Listening to the rhetoric from ER docs about this case, I find that there is much almost willful misunderstanding about the basis for AAPS’ complaint.
This letter to the editor appeared in the Emergency Medicine News, June 2007 in response to the March 2007 EM News article “AAPS SUES NY DOH Over Board Certification”.
It illustrates several misconceptions about the case which need to be addressed, and is posted in full below (italics mine) :
Letter to the Editor:”AAPS Attorney Confused” from Carol Rogala, D.O., FACEP, Yucaipa, CA
In response to the article, “AAPS Sues NY DOH over Board Certification”(EMN 2007;29:1), I feel the AAPS attorney is just a little confused. You see,there is nothing stated in the 14th amendment that is being violated by upholding the current standard of training in emergency medicine or any other specialty for that matter. And the whole concept behind having separate states was that each state was allowed to govern itself. Even given that idea, however, the state board has nothing to do with board certification. It only grants or removes licenses and investigates complaints.
The Department of Health is even further removed from this issue because it can only list the words “board certified”when that physician has been deemed to be board certified by a recognized board. The DOH has nothing to do with written and oral examinations, and is not acting as an “advertising” agency for any physician. When a doctor applies for staff privileges,it will become obvious whether he had residency training and completed his boards. Currently ABEM and ABOEM are the only recognized boards.
If the Department of Health starts to give unrecognized boards this privilege, then the 14th amendment with all its general statements will be able to be used by
anyone or any group representing physicians to protect everyone else’s rights.
So I suspect the AAPS attorney could not find any real legal recourse, but knew he was going to get cheap advertising. Or perhaps he took his bar exam from the “American Association for Legal Specialties.” After some thought, I have decided to change my opinion regarding board certification. If AAPS wins this legal battle, then I am going to take the hip replacement exam and begin calling myself a board certified orthopedic surgeon. When some hospital appropriately denies me staff privileges, I will have the ability to sue it based on the ruling of
this case and retire.With the right attorney I could even add sexual harassment or sex discrimination or maybe even a COBRA violation because the hospital denied me the right to be on call when no one else would take it.
Carol Rogala, D.O., FACEP, Yucaipa, CA
CONFUSED? LET’S SEE WHO’S “CONFUSED” ABOUT WHAT:
“there is nothing stated in the 14th amendment that is being violated by upholding the current standard of training in emergency medicine or any other specialty for that matter”
The 14th Amendment says that “No State shall deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” The AAPS contends that NY-DOH, by denying recognition to its certification process without providing a rational basis for doing so, and therefore keeping its members from serving as Independent Medical Examiners, testifying as experts, and from listing themselves as “board-certified” on the NY-DOH website, is discriminating against them unfairly and is denying them “equal protection under the law”.
The AAPS complaint has nothing to do with the standard of residency training in Emergency Medicine, it is merely asking the NY-DOH to stop discriminating against the ER docs certified by ABPS by treating them differently, which goes precisely to the 14th amendment, as the Judge has concurred.
Even given that idea, however, the state board has nothing to do with board certification.
As stated previously, the NY-DOH definitely has something to do with board certification since it has decided that doctors certified by the ABPS can not list themselves as “board certified” on the NY-DOH website.
The Department of Health is even further removed from this issue because it can only list the words “board certified”when that physician has been deemed to be board certified by a recognized board… Currently ABEM and ABOEM are the only recognized boards.
Actually, the board certifications “recognized” by the NY-DOH are the American Board of Medical Specialties (ABMS), American Osteopathic Association (AOA), Royal College of Physicians and Surgeons of Canada (RSCPSC), and the College of Family Physicians of Canada (CFPC). But who decided that these are the only board certifications to be “recognized“? This seems to be a totally arbitrary process. Why is ABPS certification not “recognized” in NY when it has been studied and accepted in other states like Florida? Isn’t it ironic, (to say the least) that physicians with board certifications from other countries, but without any record of clinical experience in this country, are given preference over ER docs who have served in NY state emergency rooms for almost a decade?
If the Department of Health starts to give unrecognized boards this privilege, then the 14th amendment with all its general statements will be able to be used by anyone or any group representing physicians to protect everyone else’s rights.
The 14th Amendment is supposed to be used to protect everyone else’s rights! What don’t you get about “equal protection under the law”? Or is that only for certain privileged groups to whom you happen to belong?
If AAPS wins this legal battle, then I am going to take the hip replacement exam and begin calling myself a board certified orthopedic surgeon.
This statement is an attempt to denigrate the rigorousness of ABPS certification. The letter-writer seems to think that simply taking a written exam entitles her to ABPS certification in Orthopedics. ABPS certification in Orthopedics also requires that you perform at least 200 procedures in Orthopedic surgery (including hip surgery), aside from many other prerequisites which are as, or even more rigorous, than the boards “recognized” by NY-DOH. The AAPS case calls out all these prejudices and exposes them for what they are.
It is interesting to note that the letter writer is a “D.O” (Doctor of Osteopathy). How soon people forget the struggles that their predecessors had to fight on their behalf to achieve recognition and equivalency, and how little compassion they show to others who are in the same situation they had been in only a short time ago.
A Brief History Lesson on the Legal Battles of Osteopathic Doctors for Recognition (c/o the AOA and Wikipedia):
In the 1960s in California, the American Medical Association (AMA), sensing increased competition from osteopathic medicine, spent nearly $ 8 million to end the practice of osteopathy in the state. With considerable financial support from the AMA, a state-wide referendum was passed (Proposition 22) ending the practice of osteopathic medicine in California. California D.O.s were offered the M.D. degree in exchange for paying $65 and attending a short seminar. The California Medical Association may have been attempting to eliminate osteopathic competition by a process of amalgamation by converting thousands of D.O.s to M.D.s. The College of Osteopathic Physicians and Surgeons became the University of California, Irvine School of Medicine. However, the decision proved quite controversial. In 1974, after protest and lobbying by influential and prominent D.O.s, the California Supreme Court ruled that licensing of D.O.s in that state must be resumed.
Thus, the AAPS vs. NY-DOH is not the first, nor will it be the last case where the courts have had to decide a dispute between competing groups of medical practitioners. Let’s try to keep the facts straight to avoid any “confusion”, shall we?
American Board of Physician Specialties (ABPS)
IOM Report Ignites New Debate on Who Should Practice Emergency Medicine
Disposable Doctors 2: ER Docs Fight Back in NY
Disposable Doctors 1
An ER Doc’s Top Ten List
United States Alliance of Emergency Medicine (USAEM)
“Tribal Thinking and the Ultimate Confounder”