Chiropractic has picked up additional support in its effort to gain a hearing from the Supreme Court in the case of Wilk et al vs the Joint Commission on Accreditation of Hospitals (JCAH). (See "George McAndrews Files In Supreme Court Against JCAH" June 6, 1990 Dynamic Chiropractic.) Part of the procedure involved in filing petitions to the Supreme Court require "Friend of the Court" briefs in which an interested support group or organization presents their views -- in essence supplicatory appeals for the court's affirmative decision to grant the pending Petition to Review.
Below are excerpts from Friend of the Court (Amicus Curiae) briefs from each of the following groups, entreating the court to grant certiorari and to re-examine the issues;
The State of Illinois;
The American Association of Nurse Anesthetists;
The American Massage Therapy Association; and
The National Institute of Chiropractic Research
Excerpt from State of Illinois brief, page eight:
"JCAH enjoys enormous economic power. It accredits hospitals with 94% of all patient admissions in the United States (Petition for Writ of Certiorari, p.6), and loss of that accreditation is so devastating that it can close a hospital. (App. 38a, 100a). The ability to preclude licensed health care providers from obtaining hospital privileges is a substantial barrier to entry (cf. App. 75a), and the trial court concluded that JCAH "has the power to define and regulate the activities which take place in hospitals and to eliminate or frustrate competition from non-medical physician health care providers." (App 100a). Thus, in some cases consumers were prevented from choosing lower priced chiropractic services which, for some conditions, are higher in quality and more effective than the more expensive medical services. (App. 81a)."
Excerpt from Nurse Anesthetists brief, page 12:
"Without the protection of the antitrust laws, physicians, through their domination of JCAH, can effectively control their competition in the health care industry. If the decision below is not reversed, physicians will be able to exercise their power and thwart economic competition through the facade of a purportedly neutral body. Given the far-reaching role that JCAH standards play i the health care industry, this Court should grant certiorari to examine the important issues raised in this case."
Excerpt from the American Massage Therapy Association brief, pg. 10.
"The JCAH is comprised of the AMA, AHA, ACS, ACP and ADA. Wilk, 671 F. Supp. at 1489. The trial court found that the AMA and ACS violated the antitrust laws (although the ACS settled before the entry of the final opinion and order), and that the AHA shared similar animus toward chiropractors. See, Wilk, 671 F. Supp. at 1490-1491; see also, Wilk v. American Medical Association, 1987-2 Trade Cases par. 67,689 (N.D. Ill. 1987) (opinion of trial court prior to ACS settlement). These three members control 17 of the 22 commissioner positions in the JCAH. Wilk, 671 F. Supp. at 1490. Despite the extensive control exercised over the JCAH by these dominating associations, the lower courts held that the exclusion of chiropractors from hospitals did not violate the antitrust laws because the commissioners did not publicly announce that the purpose of Standard X was to boycott chiropractors. Wilk, 895 F. 2d at 375; Wilk 671 F. Supp. at 1490."
Excerpt from The National Institute of Chiropractic Research brief:
"This case is of immense importance to the entire nation. The Seventh Circuit's decision exempts the most powerful trade association in health care from the antitrust laws in clear, unmistakable conflict with the decisions of the Court and other Courts of Appeals as well. The decision stands to impose incalculable damage not only in the health care market, but in all other markets influenced by trade associations as well. NICR therefore requests that the Court grant the Petition and review the questions presented in this case."
What a difference 15 years makes. Today the chiropractors' legal interests can find allies that were totally absent 15 years ago. We have been informed of the possibility that numerous other governmental and private interests will file Friend of the Court briefs if the Supreme Court elects to grant the pending Petition for Review. If that happens we will have a more extensive opportunity to brief the actual merits of the case, including oral arguments before the Supreme Court. Please remember, however, that the Supreme Court only grants review to approximately 3.75 percent of the Petitions submitted to it.
