the recertification procedure was reasonably designed to further the public good or whether it was adopted in an arbitrary and/or capricious manner. R&R at 13. The affidavit of Harry R. Kimball, M.D., the President of the Board, explains why -- and how -- the recertification procedure was adopted and plaintiff does not dispute this explanation in any meaningful way.
After setting forth in some detail the mission, function, composition, and status of the Board, Dr. Kimball explains how diplomates are certified and how the Board's standards for certification have "evolved over time", with many changes made in the requirements in order to improve the standards for certification. Kimball Aff. P 12. The Board always announces changes in its policies several years in advance -- as it did here -- and those changes are prospective only. Id. at PP 16, 17. In determining to issue time-limited certificates, the Board followed the practice of most medical specialty boards, id. at P 18, and made this determination when, in the mid-1980's, it came to believe that, to be accountable, "it should establish a mechanism to encourage continued scholarship and to promote a continued high standard of clinical competence and patient care by its diplomates". Id. at P 13. It did not time-limit any certificates issued before 1990 but only because it believed that, in accordance with its Policies and Procedures, it could not unilaterally revoke or amend the certificates previously issued unconditionally, such as plaintiff's certificate in internal medicine. Id. at P 14.
The first time-limited certificates issued will expire in the year 2000, id. at 19, with recertification not requiring the retaking of the initial certification examination but, rather, a simpler three-step process, with the objective of the self-evaluation step -- an at-home, open book examination in four subject areas of the candidate's choosing as well as in general internal medicine -- being to promote continuing scholarship in the candidate's field and to provide diplomates with a mechanism by which to assess their knowledge of recent advances and current concepts. Id. at PP 22, 24, 25. While the self-examination "modules" are currently being developed, the Board anticipates that the self-evaluation process will require only ten to fifteen hours of the candidate's time over a five year period of time. Id. at 26. The only other requirements for certification are that the candidate be licensed to practice medicine and be in good standing in his or her community or institution and that he or she pass a one day multiple choice examination, with the candidate choosing two "modules" in his or her specialty area and a third in any area, with a single overall score. Id. at PP 23, 27, 28. This final examination will offer credibility to the public and will test clinical judgment concerning well established medicine that certified specialists should know. Id. at P 28. The Board anticipates that all well-prepared candidates will pass. Id.
Plaintiff does not dispute virtually any of the foregoing. Rather, his affidavit is predicated on the fact that a certificate is an important credential, a fact defendant does not dispute, id. at P 20, and his expectation as to what will ensue if, sometime after the year 2001, he takes and fails the final examination. Plaintiff's sole problem with the recertification procedure itself is directed to the final examination and his assumption, contrary to what defendant posits, that that examination will be as rigorous as it was for the initial certification, requiring an extended period of preparation and study which will severely curtail the time he can otherwise devote to the practice of medicine. DeGregorio Aff. at P 10. Because plaintiff further assumes that the same failure rate will follow, he speculates that he might fail the examination and thus would lose the certification which is an "economic necessity" to practice successfully as a cardiologist, particularly in New Jersey. Id. at PP 10, 14, 16. He recognizes that because the first recertification examination will not be offered until 1996 or in large numbers until the year 2001 and, indeed, has not yet even been fully developed, he can only "estimate" what the burden of preparation (or, the court suggests, the level of difficulty and the rate of failure) will be. Id. at P 13. Adoption of the recertification policy by the Board, plaintiff argues, has violated the Board's fiduciary duty to him.
Importantly, at no point does plaintiff even suggest that the Board has not acted appropriately
or that the reasons proffered for recertification are not legitimate or are not in the public interest. Moreover, he concedes the role the Board plays as the body which sets standards of clinical competence in the various subspecialties of internal medicine, including cardiology, in which connection it establishes training requirements for physicians seeking to have their competence recognized through certification procedures established and administered by the Board, determines and assesses the credentials for certification, and substantiates the competence and professional standards of candidates for certifications through examinations testing the competence of candidates. Id. at PP 4, 5. In a nutshell, Magistrate Judge Chesler wrongly concluded that there was insufficient evidence before the court to determine whether the recertification procedure was reasonably designed to further the public good or whether it was adopted in an arbitrary or capricious manner; rather there was ample undisputed evidence on both scores.
The Report & Recommendation is adopted in part and rejected in part. Defendant's motion for summary judgment will be granted. An appropriate order will issue.
MARYANNE TRUMP BARRY, U.S.D.J.
Dated: January 14, 1994
ORDER - January 18, 1994, Filed
This matter having come before the court through the October 1, 1993 Report and Recommendation of the Honorable Stanley R. Chesler, United States Magistrate Judge, pursuant to 28 U.S.C. § 636(b)(1)(B), Fed.R.Civ.P. 72(b), and Rule 40(D)(5) of the General Rules of this court; and the court having considered the recommendations of the Magistrate Judge and the objections of the parties;
IT IS on this 14th day of January, 1994,
For the reasons expressed in the court's Opinion of even date hereby
ORDERED that defendant's motion for summary judgment be and hereby is granted.
MARYANNE TRUMP BARRY, U.S.D.J.