Board information and certification status is protected information, he explained. “They’ve added a two-factor verification component to this, so again, this was a broader issue than just a waiver. MyABEM is looking more at protecting personal information.”

Part of Doing Business

Dr. Vukmir explained that in any business, there is a choice of consenting or not consenting to a specific requirement. “There are often waivers to be signed, and in any contract you sign, there is a dispute clause,” he said. “The dispute clause gives you certain rules for how you do something, such as mandating that mediation or arbitration must occur before you litigate.”

The waivers are usually there to save costs, and all parties need to sign them to proceed with the contract. Generally, participation is contingent on signing the clause. “If you don’t sign it, you may not be able to participate, as in this situation with ABEM,” he said. “In any business arrangement, there tends to be provisions to address downstream liability for both parties in that context.”

ACEP Responds

After hearing concerns from some physicians regarding the waiver, ACEP reached out to ABEM to seek clarification as to the reason for these attestations. “After discussion with ABEM leadership, and extensive review by ACEP staff and ACEP General Counsel, we believe that this clause is not significantly different from the previous indemnification clauses that diplomats and candidates have been signing for decades,” said L. Anthony Cirillo, MD, FACEP, President of ACEP. “In ACEP’s discussion with ABEM, it became clear that the indemnification clause was instituted to protect against the kind of costly lawsuits that have occurred in the past. The most notable of these cases was the Daniel case, which ended up being a 15-year-long antitrust lawsuit challenging the primacy of emergency medicine residency training as a fundamental standard for board certification.”

The Daniel v. American Board of Emergency Medicine lawsuit, filed in 1990, challenged ABEM’s decision to end the “practice track” for board certification. The plaintiffs alleged that this was done to restrict competition in the market for emergency physicians, and that it violated antitrust laws. Specifically, the physicians were seeking to restore, temporarily, the practice track route so they could qualify for the ABEM board certification examination. The case grew to include over 175 plaintiffs and 30 defendants. However, after 15 years of litigation, the court found that the plaintiffs failed to allege an antitrust injury and the case was dismissed.