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In the mid-1970s, ACR included 12,000 of the 14,000 radiologists in the country. ARC conditions membership on adherence to the AMA's Principles (which are printed in the ACR's bylaws) and the Principles of Ethical Radiological Practice. The Principles of Ethical Radiological Practice have contained Principle 3 (identical to the original AMA Principle 3) since the early 1940s.
Under the bylaws, the Board of Chancellors may discipline any member of the College for violation of its principles. Any member who for reasons of moral turpitude or unethical practices ceases to be a member of the AMA or of any country, state, or provincial medical society shall have her or his status as a member of the College referred to the Board of Chancellors for possible action. No radiologist has ever been disciplined for associating with chiropractors.
In the late 1960s, the AMA requested that ACR pass a resolution regarding chiropractic. The AMA supplied ACR with materials on chiropractic for this purpose. ACR in fact adopted a resolution but it was less aggressive than the AMA wanted. ACR informed the AMA that:
This was done on the feeling that the College would like to offer something which would be helpful but not necessarily legally hazardous, since there would seem to be little gain in having the College sued as apparently the AMA has been sued lately on this kind of issue.
The actual resolution passed in 1968 (and again in 1969) stated that ACR
advised the people of the United States that they regard the use of radiation for medical purposes by chiropractors as an unwarranted use of radiation without potential for medical gain to balance the potential risk.
The policy continued by urging state radiation protection agencies and others to "worn the public against the misuse and unsafe uses of x-rays on patients by chiropractors." The ACR resolution was distributed to ACR members and other medical societies. Although this resolution was not published in any way designed to reach "the people of the United States," I view it as protected activity.
A revised version of the resolution was passed by the ACR Council in 1975. This resolution was strongly worded and it explicitly prohibited the submission of x-rays to chiropractors - even at the request of a patient:
(S)ubmitting x-ray films or other medical records to a chiropractor or to a patient to be conveyed to a chiropractor, constitutes a tacit endorsement of chiropractic as a legitimate healing art and as such is not consistent with the Principles of Medical Ethics of the American Medical Association.
This resolution was again amended in 1981 to permit radiologists to provide previously taken x-rays to a chiropractor or a patient. Radiologists were advised as follows:
In deciding whether to make previously-taken x-rays, copies thereof, or x-ray reports available to a chiropractor or a patient, a radiologist should take into account applicable laws, hospital rules and regulations, and the best interests of the patient.
This change was made in response to changing state laws and changes in the rules of some hospitals which required radiologists to turn over previous ly-taken x-rays to the patient or any person designated by the patient. (Despite the existence of this resolution, ACR staff occasionally advised inquiring radiologists that it would be appropriate to make prior x-rays available to chiropractors at the request of patients.) Except in cases where turning over x-rays is required by law or hospital rule, the 1981 resolution may not be all that significant since the current Chairman of the Board of Chancellors of ACR testified at trial that in his view it was not in the patient's best interest to turn over a previously taken x-ray or x-ray report to a chiropractor.
Throughout the mid-1970s, ACR informed its members in response to member inquiries that it was unethical to associate with chiropractors because chiropractic was unscientific. In these responses, explicit reference was made to the AMA's Principles. During the 21-year period from 1960 to 1981, there were only ten such letters written by ACR staff. However, most of them were in 1973 and 1974. In the past six or seven years, every ACR response to an inquiry about chiropractic included a statement to the effect that notwithstanding the College's antichiropractic policy, the radiologist should make an individual choice in deciding to associate with chiropractors.
ACR vigorously opposed the AMA's settlement of some chiropractic lawsuits and the changes in AMA's policies on chiropractic. In the 1978 Status Report on Chiropractic Lawsuits the ACR acknowledged that Principle 3 of the AMA's Principles forbade all association with chiropractors and it condemned any change in the AMA's policies. Radiologists also opposed the revision of the AMA's Principles in 1980 which deleted Principle 3.
In opposing the plaintiff's settlement with the Illinois State Medical Society, ACR publicly informed its members of its position on chiropractic:
The College has always held that consultations or professional association between chiropractors and radiologists are not in the best interest of patient care and are not optimal radiologic practice, and that, therefore, chiropractors should not be provided privileges to request radiological services in the hospital. Any decision to provide hospital privileges to chiropractors would be difficult to reconcile with the increasingly rigorous credentiality of medical physicians.
In 1981, the College Council adopted a policy statement criticizing chiropractic use of radiation. It states that the ACR "regards the prescription and use of radiation by chiropractors as unwarranted and without likelihood of significant benefit to patients." The policy statement notes that radiological studies for medical diagnosis and evaluation should only be requested or conducted by individuals who are scientifically trained and licensed physicians. "There is no scientific evidence to justify the use of radiation by health care providers for non-medical purposes," according to the statement. In addition, it condemns "the use of radiation for promotional purposes by chiropractors or others," and counsels radiologists, when deciding whether to make reports of previously performed radiological studies available to a chiropractor or a patient, to "take into account applicable laws, hospital rules and regulations, and the best interests of the patient."
The Principles of Ethical Radiological Practice also address the question of professional association with chiropractors. Principle three states that "Physicians should practice a method of healing founded on a scientific basis; and they should not voluntarily associate professionally with anyone who violates this principle."
Chiropractic theory and practice is based upon unscientific and unproven tenets. Furthermore, there is no comparability between the comprehensive training and clinical experience of a physician and the limited training and experience of a chiropractor.
A radiologist accepts referrals from other physicians on the premise that the physician's judgment in requesting an x-ray examination is valid. This premise is not valid in the case of chiropractors, who are not equipped by training or experience to assess the risk/benefit ratios of such examinations. Radiologists provide a verbal or written consultation to attending physicians on the premise that they are able to assess these matters and to understand and act upon their findings. This premise also is invalid in the case of chiropractors.
The College has another concern. And that is that chiropractors historically have engaged in inappropriate advertising and promotion of x-ray exposure, including advertising of free x-rays to patients, use of full spine x-rays, and unnecessary follow-up or progress studies. A number of examples of chiropractic misuse of radiation have been brought to the attention of the College over the years. The College feels it is inappropriate for trained and qualified medical radiologists to participate in such a use of radiation.
The College's policy position on chiropractic and its ethical principles serve as guidelines or advice to members of the college and are not intended in any way to preclude the individual radiologist from exercising his best professional judgment concerning patient care. No member of the College has ever been disciplined or otherwise censured for electing to associate professionally with chiropractors.
Plaintiffs characterize statements such as the one just quoted as a renewed call to radiologists to boycott chiropractors. The College argues that it is entitled to state its policy to its members in a statement describing this litigation and the College's position in this case and that the statements are protected under the Noerr-Pennington doctrine. I agree, but the statement of the policy is admissible to prove that this was the ACR policy (a fact not disputed by ACR at trial).
ACR's policies can directly affect hospitals. JCAH accreditation standards for hospitals require that a hospital's radiology equipment and services be controlled by a medical physician radiologist. Almost all radiologists are members of ACR. Radiologists would heavily influence any hospital decision relative to chiropractors, whether it be admission to the medical staff or more limited privileges such as access to the radiology department equipment or services. The testimony of Sister Bonaventure, the President of Resurrection Hospital in Chicago, was enlightening. She has been the chief executive officer of a large hospital for many years and she would rely on the decision of the radiologists in determining whether the services of the radiology department would be made available to chiropractors. ACR is opposed to any hospital privileges for chiropractors. As ACR's Executive Director admitted, radiologists following the policy of the ACR effectively bar chiropractors from the use of hospital radiology departments or services. (aDep. 16-17)
All of the radiologists who testified, in person or by deposition, testified that they had made individual decisions in deciding not to associate with chiropractors but a "number of radiologists testified that they followed ACR's advice." (Post-trial Submission of ACR at Par. 21). A reasonable inference from the evidence is that most radiologists do not associate with chiropractors. About half of all chiropractors own their own x-ray equipment and they purchase this equipment because radiologists in private practice and hospitals refuse to deal with chiropractors.
The common perception among radiologists was that ACR's canons of ethics proscribed as an unethical practice the taking or interpretation of x-rays by radiologists on referral from chiropractors in all circumstances. For example, the New York chapter of the College issued a resolution in May of 1977 urging ACR to consider amendment of the ethical canon so as to permit association between radiologists and chiropractors in states in which chiropractors were licensed. In New Jersey the State Board of Medical Examiners promulgated a regulation that required all radiologists in New Jersey to accept referrals from chiropractors. On October 1, 1976, ACR's Maine chapter issued a resolution unanimously supporting the policies of the AMA and ACR regarding doctors of chiropractic. And there was no question what those policies were.
On August 30, 1978, ACR circulated to all its state chapters a Pledge of Membership which required members to agree to abide by the Principles of Medical Ethics of the AMA and the Principles of Radiological Ethics of ACR. There is some question whether this pledge actually was signed by radiologists but there is no doubt that it was circulated to all state chapters and a reasonable inference is that the pledge was distributed to and executed by some radiologists.
ACR challenges the sufficiency of the evidence on the conspiracy issues, claiming there is not sufficient evidence that ACR was in conspiracy with the AMA or its own members to boycott chiropractors. I find the evidence strong. In 1968, ACR passed a resolution "to be helpful" to the AMA. ACR had the AMA's literature on chiropractic, including the AMA's 1966 anti -chiropractic resolution, and had to know that the AMA believed chiropractic to be unscientific and association between medical physicians and chiropractors to be unethical. ACR had its own Principle 3 and it too opposed association with chiropractors because "the use of radiation for medical purposes by doctors of chiropractic (is) unwarranted." ACR staff conferred with AMA staff before adopting the 1968 resolution.
Beginning in 1973, after chiropractic hod been included in Medicare, ACR began to work with the AMA on matters relating to chiropractic. ACR staff specifically referred inquiries on chiropractic to Doyl Taylor. Mr. Taylor was a fervent, highly motivated person. He had a single goal: to eliminate chiropractic as a profession. The Assistant Executive Director of ACR described Taylor's department at the AMA as "a very active deportment concerning the problems that medicine encounters with chiropractors."
In 1973 ACR advised its members that the College concurred in the opinion of the AMA that "any association with cultists by physicians in the practice of medicine is considered unethical." In 1974 ACR stated: "The American College of Radiology concurs with the American Medical Association. Our stand is: that physicians should not have professional relationships with the practice of chiropractic medicine, and such relationships would be considered by either society as unethical." (Emphasis added).
ACR argues that there is no indication that it had any specific knowledge of, let alone involvement in, the activities of the AMA's Committee on Quackery. Such specific knowledge is not necessary. ACR had knowledge of the boycott. It had a copy of the AMA's anti-chiropractic resolution condemning chiropractic as unscientific and ACR knew, as any reasonable person would have known that under Principle 3 association with unscientific practitioners (chiropractors) was unethical. ACR also argues that the mere existence of an unscientific practitioner ethical standard, such as Principle 3, is not evidence of a conspiracy. That is correct. But when a medical society that has such an ethical standard brands a competing profession as unscientific, that tells its members that association with such practitioners is unethical. This combination of action may be considered in determining whether ACR entered into a conspiracy with the AMA or its own members.
Plaintiffs' evidence establishes more than mere independent action on the port of ACR. The evidence demonstrates a conscious commitment to the AMA boycott and participation in the boycott. I find that ACR was a member of the AMA conspiracy.
I also find that ACR engaged in a similar conspiracy with one or more of its own members. I reject ACR's argument that all radiologists who refuse to associate with chiropractors have done so on the basis of their independent judgment. As noted by ACR in its post-trial submission, a number of radiologists testified that they followed ACR's advice regarding chiropractors. Many members solicited ACR's opinion and policy on chiropractic. The Maine chapter of ACR specifically endorsed ACR's policies. I conclude from the evidence that most radiologists in fact decline to associate with chiropractors.
ACR argues against any finding of a separate conspiracy by ACR and its members on the ground that radiologists and chiropractors do not compete and plaintiffs' economic evidence fails to establish an adverse effect on competition. The first question is whether radiologists and chiropractors compete. Radiologists have a consultative practice, that is, they x-ray patients at the request of other physicians. ACR argues that to the extent radiologists decline to deal with chiropractors, they are injuring themselves economically. However, both groups x-ray patients. Half of all chiropractors own their own x-ray equipment but they generally do not have access to the very sophisticated, expensive x-ray equipment owned by hospitals. Radiologists have such access by virtue of their hospital privileges. Radiologists have the power to prevent chiropractors from obtaining similar hospital privileges, and those who follow ACR's policy effectively do prevent chiropractors from obtaining hospital privileges. By limiting the ability of chiropractors to take appropriate x-rays of their patients, radiologists are adversely affecting chiropractors' ability to compete. Also, ACR clearly wants to eliminate the taking of all x-rays by chiropractors. If ACR were successful, radiologists would benefit because at least some of the x-rays now taken by chiropractors would be taken by them. Based on these factors I conclude that there is competition between chiropractors and radiologists.
Dr. Stano did not testify concerning any effects of a conspiracy of radiologists upon plaintiffs or the chiropractic profession. However, he did testify that requiring chiropractors to purchase their own x-ray equipment because radiological services generally were not available to chiropractors from radiologists increased the costs of entering the chiropractic profession and created an anti-competitive barrier to entry. Mr. Lynk generally agreed that this would be an anti-competitive effect of the AMA boycott (and it would certainly also be an anti -competitive effect of any ACR boycott).
ACR maintains that it has a patient care defense that is different from the patient care defense of the other defendants due to the unique consultative role of a diagnostic radiologist. (Therapeutic radiology, the treatment of cancer patients with radiation, is not involved in this suit. Diagnostic radiology is a consultative practice whereby radiologists, using various imaging techniques, attempt to detect pathology in the patient.) The College described that unique role in its Memorandum Concerning Patient Care Defense at 4-5:
Diagnostic radiologists provide consultative services only - ie, they conduct radiologic examinations only upon referral from other medical doctors, and they report their findings to the referring physicians, to be used as a component of their diagnoses and further treatment of the patients. Radiologists frequently do not even meet their patients and rarely report findings directly to the patients ... This consultative role means that radiologists must rely on their referring physicians, both for initial guidance as to the patient's condition, and for follow-through on the patient's diagnosis and treatment after the radiologic procedure. Hence, a radiologist is critically dependent on the knowledge and competence of his cooperating colleagues for the proper care of the radiologist's patients. (Even though a radiologist performs his task fully competently, he or she (and the patient) face a risk that the patient may nevertheless not receive proper treatment, because the primary provider: (1) gives the radiologist inadequate information to determine what radiologic procedures are indicated; (2) misunderstands the radiologic findings; (3) fails to treat the patient in accordance with those findings; or (4) fails to initiate other diagnostic steps necessary to identify the patient's problem.
I accept ACR's claim that it was acting out of a genuine belief that chiropractors misuse and abuse radiation. Half of all chiropractors own x-ray equipment and it is the prevailing practice to x-ray each new patient. Some chiropractors routinely take repeat follow-up x-rays. Regrettably, the current use of x-rays is attributable in part to Medicare regulations which provide that chiropractors may be reimbursed for chiropractic treatment of "subluxations demonstrated by x-ray to exist." The better view is that a chiropractic subluxation cannot be seen in an x-ray, but chiropractors undoubtedly continue to use x-rays so that they or their patients may qualify for Medicare reimbursement.
There was substantial evidence of radiation abuse - both historic and current - by chiropractors. Some chiropractors, including one of the plaintiffs, routinely take full spine x-rays despite the fact that such x-rays very likely are unnecessary and exposure to radiation is substantially increased. Some chiropractors again including one of the plaintiffs, fail to use gonadal shields when x-raying patients in their procreation years. Some chiropractors use the offer of free spine x-rays to obtain new business. There has been recent recognition in chiropractic literature of the abuse of radiation by chiropractors.
ACR's concern about abuse of radiation has not been limited to chiropractors. The College regularly'has chastised medical physicians and radiologists about overuse and misuse of radiation. So I conclude that ACR was genuinely concerned about the subject and that its concerns about radiation abuse were objectively reasonable. However, to the extent ACR has to establish an objectively reasonable concern about chiropractic generally, it relies on the some evidence as the AMA and the some negative conclusion would apply. Notably, most of ACR's anti-chiropractic activity occurred in the mid-1970s when, according to the AMA's position at trial, chiropractic was growing and changing. Today ACR maintains that chiropractic is unscientific and yet the AMA witnesses are in disagreement, claiming now that at least some chiropractic manipulations are scientific. For these additional reasons, ACR has not established the "objectively reasonable" standard.
Radiologists' concern over chiropractic abuse of radiation has been the dominant motivating factor in ACR's policy on chiropractic. As medical physicians, radiologists have an affinity for their fellow professionals, and this could account in part for ACR's willingness to participate in the AMA boycott. Also, medical physicians currently are radiologists' principal source of business and radiologists could be keen to support their suppliers in a boycott against their suppliers' competitors. This would be true even if chiropractors were an alternative source of business to radiologists because the record established that even in the absence of the boycott chiropractors would not become a large source of business to radiologists. It would be in radiologists' interests to support their fellow medical physicians. But these competitive impulses, while present, did not, in my opinion, dominate ACR's motivation.
The final element in the patient care defense, whether the least restrictive means hove been utilized, has not been established by ACR. ACR joined in a boycott to prevent all association between chiropractors and medical physicians, not just between chiropractors and radiologists. ACR's beliefs about chiropractic misuse of radiation cannot support such a boycott. Moreover, those beliefs do not justify ACR's conspiracy with its own members. Accepting as given the nature of radiological consultative services as described by the defendant, ACR could have advised its members to distinguish between the services requested of a chiropractor rather than advocating a total boycott. For example, if a chiropractor requested a certain x-ray (such as a full spine x-ray) and the radiologist was concerned that there was no medical justification for the radiation exposure, the radiologist could discuss the issue with the referring chiropractor or simply refuse the patient. (Certainly not all x-rays requested by a chiropractor are useless. Chiropractors as well as medical physicians routinely take xrays for leg length measurements and back pain syndrome and such x-rays easily could be taken by a radiologist without risking harm to the patient.) If a radiologist become concerned that his report would not be properly interpreted by the chiropractor, the report could be made more explicit. Radiologists already advise medical physicians if they believe that a referral to another medical specialist is appropriate, and similar explicit advice could be given to a chiropractor. it would be a foolhardy chiropractor who would ignore oradiologist report, for example, that there was a possible cancer pathology and the patient should be referred to an oncologist for further treatment.
The patient is for better off with this result than being treated only by a chiropractor who does not have access to the kind of sophisticated, expensive radiological equipment available to radiologists. (This kind of equipment generally is available only at hospitals. It is equipment that is now owned by radiologists, but access to the equipment is, as described above, in the control of the radiologists who are members of the hospital's medical staff. So a radiologist in that position at a hospital may, by declining to associate with chiropractors, deprive all patients of chiropractors access to that equipment.) The radiologists argue that if the patient chooses to go to a chiropractor instead of a medical physician, she or he must take the consequences and one of those consequences is lack of association between chiropractors and radiologists. That is not much solace to the 10,000,000 patients per year who choose to be treated by chiropractors licensed by the fifty states to render treatment.
Next the radiologists argue that their actions were "least restrictive" because they only occasionally admonished a member of the College not to associate with chiropractors and it was done in private correspondence between the College and the member who sought advice. But the members knew about Principle 3 and it was well known that the College's policy was that association between radiologists and chiropractors was unethical. The College does not have to take the final step of advising the membership against association with chiropractors. That conclusion flows from the synergy created from the existence of the ethical prohibition against association with unscientific practitioners and the knowledge thcLt the College considered chiropractors unscientific practitioners. I conclude that ARC's participation in the AMA conspiracy and in a separate conspiracy with its members was not the least restrictive means of achieving ACR's legitimate patient care goals. Accordingly I find that ACR has failed to establish the patient care defense.
The final issue is whether plaintiffs have established entitlement to an injunction and whether an injunction should issue against ACR. To the extent ACR is a co-conspirotor with AMA, all of the finding's made against AMA apply -against ACR. In other words, plaintiffs have established a threat of injury from the conspiracy and the lingering effects of the boycott that is personal to them. In addition, ACR's separate conspiracy with its members continues to the present time. (Even if ACR's present actions do not constitute a separate conspiracy continuing to the present time, those actions demonstrate ACR's willingness to renew its conspiratorial activity at any time.) This heighten's the necessity for an injunction against ACR. ACR's policy today is that radiologists should not associate with chiropractors. It still has Principle 3 as part of the Radiological Ethics, and it still believes that chiropractic is unscientific. Therefore, the members of the College who do associate with chiropractors are, in the eyes of the ACR, unethical physicians.
ACR asserts that none of this matters because since 1981 it has been advising its members that its ethical principles are merely guidelines without the force of low and they "are not intended to preclude the individual radiologist from exercising his best professional judgment concerning patient care." This advice was given in the College's statement regarding the plaintiffs' settlement with the Illinois State Medical Society (quoted above) and in six or seven letters to members who inquired about the College's chiropractic policy. As the Wilk Court noted, ethical standards do not have to be coercively enforced to be effective. It is not enough to say to a professional that you will not be disciplined for violating the ethical standards. A professional should not have to risk being considered unethical by her or his fellow professionals. The conspiracy among members of ACR has been very effective even without enforcement of the ethical guidelines.
I conclude that an injunction is appropriate and the parties should confer with respect to the form of the injunction.
Based on the findings of fact and conclusions of law set forth in this opinion, the case is dismissed against defendants JCAH, ACP, AAOS, and Dr. Sammons, and an injunction shall issue against defendants AMA, ACS, and ACR. The plaintiffs and the AMA, ACS, and ACR are directed to confer on the form of injunction and to report to the court on the progress of those discussions. The case is set for an in-chambers conference on September 4, 1987 at 3:00 p.m.
It is so ordered.
United States District Judge
August 27, 1987
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