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socrateaser, Lawyer
Category: California Employment Law
Satisfied Customers: 38879
Experience:  Retired (mostly)
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I am a physician I am board certified in my main specialty

Customer Question

I am a physician I am board certified in my main specialty but not in my sub specialty. I finished my training 15 years ago and at that time there was no time limitation to seat for the board. In 2011 I believe the American Board of Pediatrics determine that you only had 7 years to sit for your boards and if you did not do so in that period of time , you had to return to training for 1 year and also meet their new research requirements. This means a person graduating today will have 3 tries to pass the board since they only offer it every other year. I took the Board with little preparation and did not pass. Due to the situation outlined above I thought it was arbitrary to limit me to 1 try when others have 3, specially since the change was recent and applied in a retroactive manner. I wrote the board a letter and interesting enough they wrote back that what they are looking for is "non-cognitive skills" basically how well you play with others. They are not questioning my clinical credential or my professional ability but they want to prove my competency based in non-cognitive skills. Can they do this with out been challenged? This will directly affect my ability to work in my given field since now most hospital are requiring board certification even when is not a requirement fora medical license.- All I want is to be afforded one more chance to sit for the boards and I truly belief this decision making process is flawed. Do I have a recourse under the law?
Submitted: 4 years ago.
Category: California Employment Law
Expert:  socrateaser replied 4 years ago.

The Amercian Board of Medical Specialties is a private organization. Consequently, it is not subject to any Constitutional impediments, other than those that it places on itself through its articles of incorporation and bylaws. You cannot even raise the issue of public accommodation, because ABMS certification is only limited to licensed physicians. The Medical Board of California does not regulate or license board specialties.

The sum of all of the above is that the ABMS has absolute discretion as to what it chooses to do and how, and absent a demonstrable violation of its articles and bylaws, you would have no legal recourse.

It's beyond the scope of this forum to review the ABMS governing instruments to determine whether or not you can state a cause of action based upon the Board's limitations of your right to sit for the examination. However, that would be the only way that you could prevail in court -- you must prove that the organization is violating its own rules in some manner -- or, you will get nowhere.

Please let me know if I can be of further assistance.

Customer: replied 4 years ago.

What about the fact that their actions directly impact the ability to obtain work since most hospital including the military ones require board certification to practice. They are the facto the determining body in terms of the capability of a physician to practice regardless of been licensed or not.

Expert:  socrateaser replied 4 years ago.
Hmmm...that's interesting.

Now we have a public accommodation restricting your ability to engage in business via a third party.

You would have to sue the place that is refusing to admit you to practice on grounds that to do so violates the Unruh Act (Civil Code 51), the Contracts in Restraint of Trade Law (Bus. & Prof. Code 16600), and maybe the Sherman Antitrust Act (15 U.S.C. 1).

The goal would be to show that the various places of business that require your board certification are engaged in restraint of trade and are discriminating against you on the basis of age -- because the organization that certifies your ability to obtain admission to a particular facility arbitrarily creates rules that prevent you from reasonably practicing your profession -- a profession that is supposed to be governed solely by the Medical Board of California.

That's my first pass at the possible cause of action. This could be a very costly legal action -- but, if there are other physicians in similar circumstances, you might be able to make it into a class action. And, a class action filled with physician-plaintiff's could really make a large law firm's collective palms start to sweat with greed.

You'll have to shop the case. Maybe you, or some of your colleagues already have connections with a high-powered law firm. If not, then for a possible referral, see this link.

Please let me know if I can be of further assistance.

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