onsdag 27 juli 2011

The following is copied from: "Medicine, Monopolies, and Malice How the medical establishment tried to destroy chiropractic in the U.S." by Dr Chester A. Wilk page 173- 179.

Text of the Court Order
in Wilk v. AMA

The following is the full text of the court order issued on september 26, 1987, by Judge Susan Getzendanner aginst the American Medical Association:

"The court conducted a lengthy trial of this case in may and June of 1987 and on august 27, 1987,issued a 101 -page opinion finding that The American Medical association ("AMA") and its members participated in a conspiracy against chiropractors in violation of the nations antitrust laws. Thereafter an opinion dated september 25 ,1987, was substituted for the August 27,1987, opinion. The question now before the court is the form of injunctive relief that the court will order.
As part of the injunctive relief to be ordered by the court against the AMA, the AMA shall be required to send a copy of this Permanent Injunction order to each of its current members. The members of the AMA are bound by the terms of the Permanent Injunction Order if they act in concert with the AMA to violate the terms of the order.
Accordingly, it is important that the AMA members understand the order and the reasons why the order and the reasons why the order has been entered.

The AMA´s Boycott and Conspiracy

in the early 1960s , the AMA decided to contain and eliminate chiropractic as a profession. In 1963 the AMA´s
Committee on Quackery was formed. The committee worked aggressively-both overtly and covertly -to eliminate
chiropractic. One of the principal means used by the AMA to achieve its goal was to make it unethical for medical physicians
to professionally associate with chiropractors . Under Principle 3
of the AMA´s Principles of medical Ethics, it was unethical for a physician to associate with an "unscientific practitioner ", and
in 1966 the AMA´s House of Delegates passed a resolution calling
chiropractic an unscientific cult. To complete the circle , in 1967 the AMA´s Judicial Council issued an opinion under Principle 3 holding that it was unethical for a physician to associate professionally with chiropractors.
The AMA´s purpose was to prevent medical physicians from referring patients to chiropractors and accepting referrals of patients from chiropractors, to prevent chiropractors from obtaining access to hospital diagnostic services and membership
on hospital medical staffs to prevent medical physicians from teaching at chiropractic colleges or engaging in any joint research , and to prevent any cooperation between the two groups in the delivery of health care services.
The AMA believed that the boycott worked-that chiropractic would have achieved greater gains in the absence of the boycott. Since no medical physician would want to be considered unethical by his peers, the success of the boycott is not surprising. However, chiropractic achieved licensing in all 50 states during the existence of the Committee on Quackery.
The Committee on Quackery was disbanded in 1975 and some of the committee´s activities became publicly known. Several lawsuits were filed by or on behalf of chiropractors and this ace was filed in 1976.

Change in AMA Position on Chiropractic

In 1977, the AMA began to change its position on chiropractic. The AMA´s Judical Council adopted new options under which medical physicians could refer patients to chiropractors, but there was still the proviso that the medical physician should be confident that the services to be provided on referral would be performed in accordance with accepted scientific standards. In 1979, the AMA´s House of Delegates adopted Report UU which said that not everything that a chiropractor may do is without therapeutic value , but it stopped short of saying that such things were based on scientific standards . It was not until 1980 that the AMA revised its Principles of Medical Ethics to eliminate Principle 3. Until Principle 3 was formally eliminated,there was considerable ambiguity about AMA´s position.The Ethics code adopted in 1980 provided that a medical physician "shall be free to choose whom serve , with whom to associate , and the environment
in which to provide medical services."
The AMA settled three chiropractic lawsuits by stipulating and agreeing that under the current opinions of the Judical Council a physician may, without fear of discipline or sanction by the AMA,refer a patient to a duly licensed chiropractor when he believes that referral may benefit the patient .The AMA confirmed that a physician may also choose to accept or to decline patients sent to him by a duly licensed chiropractor. Finally, the AMA confirmed that a physician may teach at a chiropractic college or seminar. These settlements were entered into in 1978, 1980, and 1986.
The AMA´s present position on chiropractic, as stated to the court,is that it is ethical for a medical physician to professionally associate with chiropractors provided the physician believes that such association is in the best interest of his patient. This position has not
previously been communicated by the AMA to its members.

Antitrust Laws

Under the Sherman Act, every combination or conspiracy in restraint
of trade is illegal. The Court has held that the conduct of the AMA and its members constituted a conspiracy in restraint of trade based on the
following facts: the purpose of the boycott was to eliminate chiropractic;chiropractors are in competition with some medical physicians; the boycott had substantial anti-competitive effects
; there were no pro-competitive effects of the boycott; and the plaintiffs were injured as a result of the conduct. These facts add up to a violation of the Sherman Act.
In this case however, the court allowed the defendants the opportunity to establish a "patient care defense" which has the following elements:
(1) that they genuinely entertained a concern for what they perceive as scientific method in care of each person with whom they have entered into a doctor -patient relationship;(2) that this concern is objectively reasonable;(3) that this concern has been the dominant motivating factor in the defendants´ promulgation of principle 3 and in the conduct intended to implement it; and (4) that this concern for the scientific method in patient care could not have been adequately satisfied in a manner less restrictive of competition.
The court concluded that the AMA had a genuine concern for scientific methods in patient care , and that this concern was the dominating factor motivating AMA´s conduct. However, the AMA
failed to establish that throughout the entire period of the boycott,from 1966 to 1980, this concern was objectively reasonable.The court reached that conclusion on the basis on extensive testimony from both witnesses for the plaintiffs and the AMA that some forms of chiropractic treatment are effective and the fact that the AMA recognized that chiropractic began to change in the early 1970s. Since the boycott was not formally over until Principle 3 was eliminated in 1980, the court found that the AMA was unable to establish that during the entire period of the conspiracy its position was objectively reasonable. Finally, the court ruled that that the AMA´s concern for scientific method in patient care could have been adequately satisfied
in a manner less restrictive of competition and that a nationwide conspiracy to eliminate a licensed profession was not justified by the concern for scientific method. On the basis of these findings, the court concluded that the AMA had failed to establish the patient care defense.
None of the courts findings constituted a judicial endorsement of chiropractic. All of the parties to the case, including the plaintiffs
and the AMA, agreed that chiropractic treatment of diseases such as diabetes, high blood pressure, cancer, heart disease and infectious disease is not proper, and that the historic theory of chiropractic, that there is a singel cause and cure of disease, was wrong. There was disagreement between the parties as to whether chiropractors should engage in diagnosis. There was evidence that the chiropractic theory of subluxation was unscientific, and evidence that some chiropractors engaged in unscientific practices. The court did not reach the question of whether chiropractic theory was in fact scientific. However, the evidence in the case was some forms of chiropractic manipulation of the spine and joints was therapeutic. AMA witnesses, including the present Chairman of the board of Trustees of the AMA, testified that some forms of treatment by chiropractors, including manipulation, can be therapeutic in the treatment of conditions such as back pain syndrome.

Need for Injunctive Relief

Although the conspiracy ended in 1980, there are lingering effects of the illegal boycott and conspiracy which require an injunction. Some medical physicians´individual decisions on whether or not to professionally associate with chiropractors are still affected by the boycott.
The injury to chiropractors´reputations which resulted from the boycott has not been repaired. Chiropractors suffer current economic injury as a result of the boycott. The AMA has never affirmatively acknowledged that there are and should not be no collective impediments to professional association and cooperation between chiropractors and medical physicians, except as provided by law. Instead, the AMA has consistently argued that its conduct has not violated the anti-trust laws.
Most importantly, the court believes that it is important that the AMA members be made aware of the present AMA positions that it is ethical for a medical physician to professionally associate with a chiropractor if the physician believes it is in the best interest of his patient, so that the lingering effects of the illegal group boycott against chiropractors faintly can be dissipated.
Under the law every medical physician, institution,and hospital has the right to make an individual decision as to whether or not that physician, institution, or hospital shall associate professionally with chiropractors. Individual choice by a medical physician voluntarily to associate professionally with chiropractors should be governed only by restrictions under state law, if any, and by the individual medical physician´s personal judgement as to what is in the best interest of a patient or patients. Professional association includes referrals, consultations, group practice in partnerships, Health Maintenance Organizations, Preferred Provider Organizations, and other alternative health care delivery systems; the provision of treatment privileges and diagnostic services (including radiological and other laboratory facilities) in or through hospital facilities ; association and cooperation in educational programs for students in chiropractic colleges; and cooperation in research, health care seminars, and continuing education programs.
An injunction is necessary to assure that the AMA does not interfere with the right of a physician, hospital,or other institution to make an individual decision on the question of professional association.

Forms of Injunction

1. The AMA, its officers, agents and employees, and all persons
who act in active concert with any of them who receive actual
notice of this order and hereby permanently enjoined from
restricting, regulating or impeding, or aiding and abetting
others from restricting, regulating or impeding, the freedom of
any AMA member or any institution or hospital to make an
individual decision as to whether or not that AMA member,
institution, or hospital shall professionally associate with
chiropractors, chiropractic students, or chiropractic

2. This permanent Injunction does not and shall not be
construed to restrict or otherwise interfere with the AMA´s
right to take positions on any issue, including chiropractic,
and to express or publicize those positions, either alone or in
conjunction with others. Nor does this Permanent Injunction
restrict or otherwise interfere with the AMA ´s right to petition
or testify before any public body on any legislative or
regulatory measure or to join or cooperate with any other
entity in so petitioning or testifying. The AMA´s membership
in a recognized accrediting association or society shall not
constitute a violation of this Permanent Injunction.

3. The AMA is directed to send a copy of this order to each AMA
member and employee, first class mail, postage prepaid,
within thirty days of entry of this order. In the alternative, the
AMA shall provide the Clerk of the court with mailing labels
so the court may send this order to AMA members and

4. The AMA shall cause the publication of this order in JAMA and
the indexing of the order under "Chiropractic" so that persons
desiring to find the order in the future will be able to do so.
5. The AMA shall prepare a statement of the AMA´s present
position on chiropractic for inclusion in current reports and
opinions of the Judicial Council with an appropriate heading
that refers to professional association between medical physi-
cians and chiropractors, and indexed in the same manner that
other reports and opinions are indexed. The court imposes no
restrictions on the AMA´s statement but only requires that it
be consistent with the AMA`s statement of its present position
to the court.

6. The AMA shall file a report with the court evidencing compli-
acne with this order on or before January 10, 1988.

It is so ordered.
Susan Getzendanner
United States District Judge
September 27, 1987