By Ellen Robinson/Courthouse News
OCALA, Fla. (CN) — Doctors claims in an antitrust class action that the American Board of Medical Professions is conspiring to reduce public access to a simple skin cancer procedure, by requiring specialty certification for the outpatient surgery.
In Mohs surgery, also known as Micrographic Dermatologic Surgery, a physician cuts around and removes a visible skin cancer, then “removes a thin layer of surrounding tissue while the patients waits,” according to the July 11 lawsuit filed in federal court.
“The layer of tissue surrounding the lesion is then analyzed under a microscope to determine if there are any cancer cells in the margin of the tissue removed,” lead plaintiff Dr. David Allyn of Florida says. If cancer remains, the physician removes a larger portion of tissue and examines it, and repeats the process until no more cancer is found.
Allyn and his named co-plaintiffs, one from Wisconsin and one from Florida, are certified by the American Board of Dermatology. All say they have “performed thousands of Mohs surgeries” and routinely do the procedure in their office, under local anesthetic.
Skin cancers — melanoma, basal cell carcinoma and squamous cell carcinoma — are among the most common cancers, particularly in sunny areas such as Florida. They usually can be treated easily if caught early, but also are known to metastasize rapidly, with possibly fatal results.
Because skin cancer can be caused by prolonged exposure to sunlight, many patients are elderly, and pay for the procedure through Medicare or state Medicaid programs. “If the defendants and their co-conspirators are successful, they will convince payors for medical services, specifically the Medicare Program, to limit payments for Mohs surgery procedures to only those performed by Mohs Surgery Board certified physicians. This will artificially reduce the number of physicians able to provide such services to patients.”
Yet it is a simple procedure, which “can take from a few minutes to a few hours, depending on how many times the procedure must be repeated,” the doctors say.
They accuse the American Board of Medical Professions and the American Board of Dermatology of conspiracy, restraint of trade, deceptive trade and state and federal antitrust violations.
The doctors say Mohs surgery is routinely taught in medical residency programs, usually in dermatology, but general surgeons, oncologists, plastic surgeons and others also “routinely perform Mohs surgery.”
If the defendants approve creation of a Mohs Surgery Board, the named plaintiffs, and the class, “will be prohibited from performing Mohs surgery on their premises,” and may lose clinical privileges at hospitals, despite the fact that they have done the simple procedure thousands of times.
Creation of a Mohs Surgery Board would be deceptive trade, the doctors say, because it would “misleadingly disparage physicians who decline to participate in a Mohs surgery fellowship by ABMS’s Mohs Surgery Board, by falsely implying that such physicians will be of inferior quality to those who do Mohs surgery fellowships and will become certified by the Mohs Surgery Board.
The doctors seek class certification, treble damages, costs of suit, including attorneys’ fees, and a permanent injunction restraining the defendants from limiting “in any way” their ability to perform, and charge for, Mohs surgery.
The American Board of Medical Professions did not respond to a request for comment.
The doctors’ lead attorney is George F. Indest III, with The Health Law Firm, of Altamonte Springs, Florida.