The American Medical Association

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IN THE MATTER OF THE AMERICAN MEDICAL ASSOCIATION, ET AL.

Docket 9064. Interlocutory Ordr. Apr. 26, 197/ Denial of respondents' motions that Commission reconsider issuance of complaint and for oral argument.

ORDER DENYING MOTIONS TO RECONSIDER ISSUANCE OF COMPLAINT The complaint in this matter alleges that respondents have entered into agreements that inter alia, prevent their members (medical doctors) from soliciting business, by advertising, or otherwise from engaging in price competition. The complaint further asserts that respondents have caused the agreements to be published and circulated in the Principles of Medical Ethics and have enforced these alleged restrictions.

The administrative law judge has now certified respondents motions that the Commission reconsider issuance of the complaint. Respondents assert that even before the fiing of the complaint, the conduct challenged in this proceeding had been terminated. Respondents note, for example, that the Judicial Council of the American Medical Association has reviewed the Association s position regarding advertising and solicitation by physicians and issued a "Statement on Advertising and Solicitation" which permits the making of information about physicians available to the public. The Statement indicates that information may be provided "through the accepted local media of advertising or communication, which are open to all physicians on like conditions." The Statement proscribes "solicitation, " defined as "the attempt to obtain patients by persuasion or influence, using statements or claims that (1) contain testimonials, (2) are intended or likely to create inflated or unjustified expectations of favorable results, (3) are self-laudatory and imply that the physician has skils superior to other physicians engaged in his field or specialty of practice, or (4) contain incorrect or incomplete facts; or representations or implications that are likely to cause the average person to misunderstand or be deceived.

Respondents also argue that in view of the pendency on the Supreme Court' s docket of Bates v. State Bar of Arizona, Dkt. No. 76- 316 (argued Jan. 18, 1977), a case raising the question ofthe legality of state restrictions on advertising by attorneys, the Commission should "reexamine whether this is the time to intervene in efforts of AMERICAN Medical ASSN., ET AL. 297 296 Interlocutory Order physicians to regulate themselves in a manner consistent with the public interest.

It is well-established that the mere fact that allegedly offending practices have been discontinued does not provide, by itself, the requisite assurance that an order is unnecessary and not in the public interest. See, e.g.. Zale Corp. 78 F. C. 1195, 1240 (1971). Moreover, it is not clear, without a full record, that the allegedly ilegal practices challenged in the complaint have been completely terminated, for instance, whether, assuming respondents now authorize physicians to advertise, the remaining restrictions, on the methods by which physicians can solicit patients are unfair methods of competition. The Commission also does not believe that it would be in the public interest to stay these proceedings pending a determination of the Bates litigation. Accordingly, It is ordered. That the aforesaid motions be, and they hereby are, denied.' 1 The Commision denies respondents' motions for oral argument. The Commision also rejects as untimely the Supplementary Memorandum in Support of Motion of H.espundent American Medical Association for Reconsideration offs.uance of the C'..mplaint" as well as complaint counsel' s response. 233-7380- 77 - :20 Complaint 89 F.