How Far Have We Really Come?
By Louis Sportelli, DC
It has been 20 years since the August 1987 decision in the Wilk, et al. v AMA, et al. case, and I could not help but reflect on those very exciting, yet extremely turbulent times.As I do quite often, I went back in my files and pulled out an article I wrote years ago. As I re-read "Avarice and Greed," published in the ACA Journal in January 1984, I was stopped cold by the realization that, at least in certain areas, we have really not progressed very far in the 20-plus years since the AMA was found guilty of unlawful conspiracy "to contain and eliminate the chiropractic profession."
Avarice and Greed
January 4, 1984
By now, everyone has heard that the U.S. Court of Appeals on Monday, September 19, 1983, ordered a new trial in the Wilk, et al. antitrust suit. The significance of the action is fundamentally that chiropractic will have a new day in court.
We will have another opportunity to prove that the defendants (the AMA and their cohorts) have conspired to monopolize health-care services in the United States and to restrain doctors of chiropractic from competing with medical doctors in the delivery of health-care services to the general public. This type of activity, if ultimately proven, is a violation of the antitrust laws since the U.S. Supreme Court ruled in 1975 that "learned" professions are not exempt from antitrust violations.
This recent ruling by the Appeals Court sends the case back to the lower court for a new trial and gives chiropractic a new opportunity to prove its charges against the AMA and the other medical defendants. This overrules the court decision in which the AMA and co-defendants were found "not guilty."
Now, what does this all really mean? Have we won the case? No, not necessarily, but it does mean that we have regained the offensive. The panel of two judges which heard the case sent it back for a new trial on technical grounds.
The basis of the decision was that the lower court made some erroneous rulings of law when it was originally tried, and the instructions given to the jury were ambiguous and misleading. Also involved in the reversal of the decision was prejudicial evidence presented by the attorneys for the AMA, which the higher Court of Appeals felt should not have been allowed to be admitted as evidence in the original trial. This evidence was primarily practice-building material which the AMA attorneys used to prove, as quoted from the case record, "the avarice and greed" of chiropractors.
Now, where do we go from here? I have spoken to George McAndrews, the able attorney who headed the team which tried the suit on behalf of the five named chiropractic plaintiffs in the case. He said, "This is just another step in some long, drawn-out proceedings, but it does put us on the high ground once again."
The decision which came out of the Appeals Court took 47 pages, and from what I understand, is composed of complicated and legalistic verbiage, so involved that the guidelines it sets for a future trial are complex. The AMA and other defendants petitioned the entire 7th Circuit Court of nine judges to review the decision of the panel which handed down the reversal, and their appeal was denied.
According to Mr. McAndrews, the issues formulated in massive public interest cases are so pervasive that it is possible the Supreme Court of the United States will want to review the case. The ramifications of such a case are that it is precedent-setting. The final decision will not only be one which involved the five plaintiff chiropractors against a number of medical trade associations, it will be the basis of decisions that will affect many other groups and organizations far removed from chiropractic. It is as important as the case of Brown vs. Topeka Board of Education, a case which most of us have never heard about, but the one in which the decision was that "separate but equal" schools were unconstitutional ... a case that set the stage for the massive anti-segregation movement that has taken place in this country over the past 30 years.
Needless to say, I am elated and excited about what happened in Chicago, as each and every chiropractor should be. But I must tell you that I am also scared, for the victory is not yet won. I am not worried about the "generals" in this battle. Not of the ability of Mr. George McAndrews, for he is an able attorney. Not of the leadership of the ACA officials or the various state organizations which have played an active supporting role in this litigation. However, I am afraid of our foot soldiers; I am concerned about rank-and-file chiropractors. Are they prepared? Are they armed? Are they willing to fight for what is right and give it their all for another year, maybe two, five, maybe even 10 if necessary? Do they have the perseverance under fire? Do they have the lasting power? Do they know what they are fighting for and do they know their real enemy?
Many chiropractors will read of the Appeals Court reversal and think this small victory (which doesn't do much more than give chiropractic back the burned-out ground it had) is the total battle. They are apt to lay back and coast at a time when we need all the energy and resources we can muster. Chiropractic must be willing, during this critical period, to mass its forces, accept the losses, learn from its failures, and continue to take on the big guns of the AMA. The AMA boasts of an annual budget of $125 million. The other defendants possess awesome financial resources. They do not, however, control the courts.
My fellow colleagues, this is going to take persistence and MONEY. And there is nobody that is going to underwrite this job for us. It is going to take the individual efforts of each and every chiropractor and chiropractic organization to furnish that drive and that money.
We can talk about what chiropractic wants and deserves. We can yell and scream about the abuses perpetrated by the AMA and other political medical interests. But this is truly one of those rare times when we can say, "Talk is cheap." We must put our money where our mouth is. Soon there will be fund-raising efforts by various organizations directed at you, so the massive legal work can be continued. Obviously, you have an interest in the outcome, so let your conscience be your guide.
But there is another issue which we must not overlook. It is one that could easily be forgotten in the reams of cross-testimony, but one which is all-important. Do you remember that phrase which was used by the AMA attorneys, which was ruled prejudicial by the high court ..."avarice and greed" of chiropractors? Let me repeat it once more ... "avarice and greed" of chiropractors. That phrase is in the testimony and proceedings of the trial. It makes you squirm, doesn't it? I know it made me feel very uneasy. The words are strong, powerful, inflammatory, and provocative. They were designed to conjure up images in the minds of the jury that chiropractic is largely composed of money-grubbing, insensitive professionals.
The strange thing is that the court did not defend the chiropractic profession against this statement ... it merely stated that the evidence presented by the defending attorneys concerning chiropractic's "avarice and greed" was inadmissible as evidence in this antitrust suit against the AMA and its co-defendants. It said that the evidence was relevant but so grossly prejudicial that it should have been excluded. That means that an average juror seeing the evidence would have had his or her passions inflamed to such an extent by the practice-building evidence that the juror's ability to reason dispassionately would have disappeared. Can you imagine that?
The reprehensible conduct of the AMA and its colleagues in isolating chiropractors so as to destroy our profession makes many of us heartsick and defensive. The child psychologists say that a child frequently grows up to match the expectations of his or her elders. Tell the child that you expect nothing and that will probably be the result. Have some of the chiropractors grown professionally to meet the distorted image of them portrayed for so long by the AMA's propaganda? I sometimes wonder when I see the materials sold and taught by some practice-builders. What a travesty.
I am sorry to say there is "avarice and greed" in our profession, just as there is in medicine. The difference is ... we cannot afford it!
There is an element of this profession which is not only greedy, but is attempting to teach and promulgate its greed throughout the profession. I'm talking about the practice-builders who tell you about the baits and lures for hooking patients, the easy-money formulas, and the "bring 'em in dead or alive" insurance schemes. The sad part, however, is that many honest, decent, well-intentioned doctors of chiropractic are using some of these ideas and materials without a realization of the impact and negative public image this type of conduct creates for the entire profession.
Clever attorneys for the AMA will pick up one ad in Pennsylvania, another in Michigan, and another in Florida, and use them to discredit the entire chiropractic profession throughout the United States.
It is easy to blame the medical attorneys or justify the conduct of practice-builders by the fact that many doctors are looking for management training, but this does not rectify the situation. The truth of the matter is practice-builders who promote unethical ideas and materials have lived off the very life blood of the naïve chiropractic community, which perhaps needs some management training, but not this. They proselytize within our profession using the hard work and sincere efforts of the solid, concerned people of this profession as their point of reference.
Take this antitrust case for example. Practice promoters will probably use the news of the reversal of the lower court verdict as their clarion call for action. They will attempt to frighten you with the threat of "starvation periods," cajole you with "pep rally" motivation, prod you into using "insurance reporting" as your MasterCard for practice success. They will cleverly misinterpret and misstate everything that occurred so as to make it a reason for treating your practice like a business, instead of putting the "serve" back into "service." These promoters will turn the overall interest of this trial toward their self-interest, and will motivate you with frustration and hate. Then they will abuse you worse than the AMA could ever do.
Those of us who have heard Mr. McAndrews cringed as he told of the embarrassment he experienced when examples of chiropractic practice-building material were presented at the antitrust trial. The entire profession should be embarrassed and also insulted and outraged at the fact that a few individuals could publish, preach, and promote material so bad that it could influence an astute judge and lose a cut-and-dry case.
Let me review some of the comments from the trial to refresh your memory. A quote from one of the attorneys describing the practice-building material likened it to putting an intravenous catheter through the navel and sucking the patient until bone-dry of all money. Some hucksters advised their chiropractic devotees, "Take two sets of X-rays; take small ones until patients can prove they can pay," or "Get 'em on a 10-month program." There were testimonials which claimed cures from everything from AIDS to Zoacanthosis, outlandish practice-building tests which suggested that chiropractors write favorable comments on their own business cards and leave them all over town, and seminars which taught or preached a ritual in which participants changed the motivating word, "MONEY." There were ideas, procedures and materials galore presented which at best are unethical, and at worst illegal. If you feel a sense of outrage, how do you think these tactics are viewed by a jury made up of health-care consumers?
The best comments regarding some of the ads which were reviewed and produced as evidence in the court stated, "They are directed at flat-headed morons who can't read a McDonald's menu." Unfortunately, they are also directed at unsuspecting, often frantic people, who are misled as to the goals of their service.
The methods used by some of the unscrupulous practice-builders are as old as the hills of charlatanism. Words like "education" are taken out of context and bastardized by claiming the procedures they are teaching are "education." Words like "research" are prostituted by claiming their methods are based on "research." They will insult the integrity of you and our profession by offering ideas and promotions which fall right into the realm of those pieces of dirty evidence shown by the medical defense attorneys to "inflame and convince" the jury that chiropractors are a menace to society and the public should be protected from their lot.
Unfortunately, the harm cannot be erased. The material generated from practice-builders will come back to haunt us over and over again.
I believe it is now time to send a message to the practice-builders. It is a message which should be presented loud and clear, specifically that this profession does not want to be humiliated and embarrassed any longer by 13th century tactics. That chiropractic should be free from the garbage which would insult and inflame any average American health consumer serving on a jury. That an entire profession will not be brought down by the money-grubbing tactics of a few.
Upon recovery from the elation of the recent victory in Chicago, I wonder: Is chiropractic really willing to accept its responsibilities? Are we mature enough to know that gaining rights by legal action is one thing, but earning respect by deeds is yet another? We are now in the big court, and virtually every member of our society is a spectator; 12 will be jurors. Can we play the game like champions and look like champions? Can we be real champions when we are given a second chance to prove our case?
If so, we will WIN!
It is scary to think that relative to practice management, we are almost in the same situation today. Yes, unscrupulous practice-management schemes and scams are problematic. Some are cleverly disguised as 21st century sophisticated technology-driven, modern patient-centered, HIPAA-compliant, evidence-based, best practice protocols, research-based and clinically sound programs designed to help today's doctor work less and earn more.
Before anyone jumps all over me for denouncing all practice developers, nothing could be further from the truth. I am not denouncing individuals; I am denouncing procedures and protocols that are less than ethical, push the envelope to the limit, border on exploiting the patient and the provider, cause irreparable harm to the global image of the profession, and forsake doctor-patient trust for patient abuse.
In the Sept. 4, 2007 edition of Medscape General Medicine, there was an excellent article dealing with "The Training of the 'Helpless' Physician." The essence of the article was simply that "medical schools turn out well-trained doctors, highly skilled and competent in every phase of practice - except surviving economically." Medical education, the article went on to state, does not provide physicians with basic information to help them understand the economic competitive forces that are shaping today's radically changing economic climate.
Chiropractic education and training are in exactly the same position as medical training. The pure fee-for-service model, which has been the cornerstone of Western health care since Roman times, has been replaced by contract-based health care. The model has changed, but the practitioners entering health care are operating on a model that does not exist any longer. Yet many of the current practice success gurus are still teaching a failed model. Hospitals are merging, health plans are merging, solo practice is becoming obsolete, groups and integration are proliferating, and the regulatory and political climate is in a state of constant flux.
So, just think back at the im-plications of the potential loss of the initial AMA litigation due to the perception that the avarice and greed of the profession could not withstand the scrutiny of a courtroom and a jury composed of potential patients. Have we really changed for the better? Read your journals and count the number of programs and companies selling, promoting and inviting doctors to attend their weekend seminar or join their ongoing programs as a way to work less and earn more.
Today there are requests to join a single national organization, contribute to a national public relations program, give to a political action committee, help support your alma mater, give to research, participate in your state association activities - the list goes on. Yet many of these programs are falling by the wayside because doctors do not support them financially. Some claim, and legitimately so, a severe reduction in their incomes, which many have seen happen with loss of various reimbursement programs. Others simply do not want to give up any time, effort or energy to get involved. I deem this disorder "terminal apathy" and believe that type of attitude will in fact do the profession in. It is imperative now, more than ever, that a commitment to a national and state organization be seen as every doctor of chiropractic's responsibility.
I wish I had the answer to this ongoing challenge. Frankly, I simply do not know! I have asked this question over and over, and the lack of "passion" for the fight to achieve recognition for chiropractic, and the cultural authority to demand that we have a place at the negotiating tables from government programs to third-party inclusion programs, is simply lacking. We do not have a good long-term strategy to deal with the changing demographics, economics, and cultural and societal demands. I do know that every doctor must recognize that in today's media-driven world, nothing escapes the press. We cannot afford any additional tarnish to the chiropractic image.
We need to replace terminal apathy with terminal optimism, and develop and encourage the new generation of chiropractors that the profession still needs to remain eternally vigilant. By doing so, we will achieve many victories tomorrow that seem impossible today.
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