Published 1/1/2008
Grant Nyhammer, JD

AAOS files two amicus briefs

On Nov. 12, 2007, the Executive Committee of the American Association of Orthopaedic Surgeons (AAOS) approved filing amicus curie briefs in two cases before the U.S. Circuit Court of Appeals for the District of Columbia.

Restrictions on tobacco marketing needed
The first case is U.S. Department of Justice v. Philip Morris, which is an appeal by Philip Morris USA, Inc., and other tobacco manufacturers (collectively “Morris”), of a decision by the U.S. District Court in a civil case brought by the U.S. Department of Justice (DOJ). Morris is appealing the finding that they violated the Racketeer Influenced and Corrupt Organizations Act by participating in a conspiracy to preserve profits by misleading the public about the dangers of tobacco.

The District Court’s decision, which was more than 1,700 pages in length, describes, as part of the conspiracy, the “intricate, interlocking, and overlapping web of national and international…research laboratories” funded by Morris for the purpose of countering “the growing scientific evidence that smoking causes cancer and other illnesses.”

The brief filed by the AAOS supports the District Court’s decision and argues that restrictions on the marketing of tobacco to children are necessary. The American Medical Association, American Thoracic Society, Mississippi State Medical Society, Public Health Advocacy Institute, and the Society for Thoracic Surgeons joined the brief.

Protecting physician privacy
The second case is Consumers’ Checkbook Center for the Study of Services v. U.S. Department of Health and Human Services. The Centers for Medicare and Medical Services (CMS) is appealing a decision by the U.S. District Court that would require CMS to disclose 2004 Medicare claims (exclusive of patient data) submitted by physicians in Washington, D.C., Illinois, Maryland, Washington state, and Virginia. The information was requested under the Freedom of Information Act (FOIA) by Consumers’ Checkbook Center (Checkbook).

CMS refused to provide the information by ruling that an exception to FOIA protects the privacy interests of the physicians. After CMS denied the request, Checkbook filed suit and the District Court ruled that the information must be disclosed because FOIA does not protect details of physician business relationships.

The AAOS (along with 16 other medical societies) will be filing a brief in January 2008 supporting the CMS ruling.

Grant Nyhammer is the AAOS assistant general counsel. He can be reached at nyhammer@aaos.org