The conflict between physicians and nonphysicians over how scope of practice should be regulated is heating up as a new antitrust challenge pits a medical board against a pain clinic.
The owners of Axcess Medical Clinic Inc. are suing the Mississippi State Board of Medical Licensure over a rule that requires pain clinics be owned by a hospital or licensed physician. The clinic claims the rule is anticompetitive and forced it to close, according to a lawsuit filed April 24 in U.S. District Court for the Southern District of Mississippi.
©belchonock/thinkstockphotos.com
The lawsuit follows a February decision by the U.S. Supreme Court against a local dental board that attempted to stop nonprofessionals from providing teeth-whitening services. The Justices ruled the dental board had violated federal antitrust regulations because the board was not adequately supervised by the state. At the time, physician leaders worried the high court ruling could generate further lawsuits and alter state medical boards’ ability to regulate scope of practice.
The Mississippi case stems from a 2011 board rule that requires pain management clinics to be owned or operated by a hospital or licensed physician. The rule also requires that pain management clinics register with the board before doing business. Then-owner of Axcess Medical Clinic, Kenneth Charles Knight, requested that the clinic be grandfathered against complying with the rule because it opened in 2010, according to court records. The lawsuit claims the board failed to address the request, and Mr. Knight was forced to sell his ownership to a physician to salvage his investment. The physician later rescinded the purchase and the shares reverted back to Mr. Knight.
In 2012, Mr. Knight divested his majority ownership to family physician Dr. Fitzhugh L. Neal Jr., according to court documents. The board approved the clinic’s registration, but later requested more information about the physician’s proof of ownership. According to the lawsuit, the board found the physician was practicing pain management without proper qualifications and did not renew its registration. The clinic temporarily closed, but reopened a month later with a new registration, court documents state. In 2013, the licensure board issued new education and certification requirements for physicians to practice pain management. The requirements forced Axcess Medical Clinic to permanently close, the lawsuit states.
Plaintiffs Mr. Knight and Dr. Neal claim the board violated state and federal antitrust regulations by engaging in anticompetitive activities that deprived patients of choice. The suit also alleges that the board is made up of market participants who are not adequately supervised by the state.
An attorney for Axcess Medical Clinic said he could not provide timely comment on the case.
Dr. H. Vann Craig, executive director for the Mississippi State Board of Medical Licensure declined to comment on details of the litigation, but defended the board’s general practices. He noted that he is not aware of any Federal Trade Commission interest in the case.
“Our process is we try to deal with physicians and make sure they’re qualified to be doing what they are doing,” he said in an interview.
The board, which will be represented by the Mississippi Attorney General’s office, has not yet issued a formal response to the lawsuit.
Joshua Prober
The vagueness of the Supreme Court’s decision opened the door for further legal challenges, according to Joshua Prober, senior vice president and general counsel for the American Osteopathic Association (AOA). The high court’s decision found North Carolina’s model for state licensing board regulation did not provide for sufficient state oversight of a board made up of market competitors, but the ruling does not provide clear guidance on what’s expected from state governments in structuring state licensing boards, he said.
“Instead, it said its inquiry would be ‘flexible and context dependent,’ which appears to invite challenges to structures used in other states,” he said. “Because antitrust litigation provides that a successful plaintiff can recover treble damages, there can be a generous payoff for a successful challenge.”
On Twitter @legal_med