Nossaman LLP Advises American Board of Obstetrics and Gynecology on Definition Policy on Certification

IRVINE (January 31, 2014) – On January 29, 2014, the American Board of Obstetrics and Gynecology (ABOG) adopted a new definition of an obstetrician and gynecologist and a new policy on certification.  The new policy no longer precludes the treatment of men and further provides that, in order to be eligible for certification, a physician must devote a "majority" of his or her practice to obstetrics and gynecology. Advising the ABOG on behalf of David Matlock M.D., a Board-certified obstetrician/gynecologist, was Tom Curtis of Nossaman LLP.

In September 2013, the ABOG adopted a policy to exclude obstetrician/gynecologists from eligibility for Board certification or recertification if they treated male patients or did not devote 75% of their practices to obstetrics and gynecology. The policy identified eight narrow exceptions under which a male patient could be treated by a Board-certified/eligible physician. Later that year, in response to protests from certain Board certified obstetrician/gynecologists, two additional exceptions were created.  However, the broad prohibition against the treatment of male patients remained in place.

On January 10, 2014, Nossaman advised ABOG that the policy constituted an unlawful restraint of trade in violation of the federal antitrust laws. Curtis advised ABOG that Board certification was critical to the successful practice of obstetrics and gynecology and that no legitimate justification existed for prohibiting obstetrician/gynecologists from treating men, since the prohibition did nothing to maintain or improve the quality of care provided by ABOG members and was not rationally related to issues of education, training, competence or expertise.

Nossaman informed ABOG that, in light of the devastating impacts that loss of Board certification would cause, Dr. Matlock and other similarly situated obstetrician/gynecologists were prepared to engage in legal action to overturn the unlawful restraint.  Nossaman requested that ABOG engage in further rulemaking activity, and withdraw the prohibition against treating men in its entirety. On January 21, 2014, the General Counsel of ABOG responded, stating that the Board of ABOG was revising the rule. ABOG requested that Nossaman refrain from litigation pending review of the new rule.

"We commend Dr. Matlock for his courage in challenging the unlawful policy of ABOG and further complement ABOG and its legal counsel for their willingness to reconsider this matter and revise their policies voluntarily," said Curtis. "In doing so, ABOG has relieved Dr. Matlock and other physicians from the burden of engaging in costly litigation at a time when the resources of physicians are becoming ever more constrained."