United States District Court, E.D. North Carolina, Western Division
C. DEVER III Chief United States District Judge.
February 2, 2016, Joseph Jemsek, M.D., ("Jemsek" or
"plaintiff') sued the North Carolina Medical Board
("NCMB"or "the Board") and various
current and former Board members in both their individual and
official capacities [D.E. 1]. On March 9, 2016, Jemsek
amended his complaint [D.E. 66]. Jemsek alleges that
the Board and its members (collectively,
"defendants") conspired to violated the Sherman
Antitrust Act, 15 U.S.C. §§ 1-7, and seeks
declaratory and injunctive relief. On April 7, 2016,
defendants moved to dismiss Jemsek's amended complaint
under Federal Rules of Civil Procedure 12(b)(1), (b)(2), and
(b)(6) [D.E. 68] and filed a supporting memorandum [D.E. 69].
On May 26, 2016, Jemsek responded in opposition [D.E. 74
& 75]. On June 13, 2016, defendants replied [D.E. 79]. As
explained below, the court grants defendants' motion to
case concerns various disciplinary actions the NCMB took
against Joseph Jemsek, M.D. Jemsek is a physician licensed to
practice medicine in North Carolina, but his license is
currently inactive. Am. Compl. [D.E. 66] ¶ 32.
He currently practices medicine in Washington, DC.
2000, Jemsek founded the Jemsek Clinic in Charlotte, North
Carolina. Id. ¶ 61. He is and was at all
relevant times certified by the American Board of Medical
Specialties in internal medicine and infectious disease.
Id. ¶ 62. In 2001, Jemsek began focusing his
practice on treating individuals with persistent and chronic
Lyme disease. Id. ¶¶ 65-66. In doing so,
Jemsek routinely treated his Lyme-disease patients with
long-term antibiotic regimens. Id. ¶ 66. The
Infections Disease Society of America ("IDSA")
guidelines did not recognize the efficacy of treating Lyme
disease with long-term antibiotics beyond 28 days. M. ¶
70. Jemsek, however, used the International Lyme and
Associated Disease Society's ("ILDAS")
guidelines, which placed no durational limit on treating Lyme
disease with long-term antibiotics. Id. ¶¶
in 2001, Blue Cross Blue Shield of North Carolina
("BCBSNC") reimbursed Jemsek's clinic for its
use of long-term antibiotics to treat patients with chronic
Lyme disease. Id. ¶ 86. Before treating
Lyme-disease patients, Jemsek's staff would call BCBSNC
to confirm coverage for long-term antibiotic treatment.
Id. ¶ 88. "In nearly every case"
BCBSNC communicated that its plans imposed no restrictions on
the use of intravenous or long-term antibiotics to treat Lyme
disease. IcL Rather, BCBSNC relied upon the general paradigm
of "medical necessity" to determine on a
case-by-case basis which claims to accept or reject.
Id. ¶ 87.
2003, BCBSNC began examining Jemsek's claims regarding
the use of long-term antibiotic therapy for Lyme-disease
sufferers. Id. ¶ 90. In doing so, BCBSNC
applied a Blue Cross Blue Shield Association policy that
defined all courses of antibiotics lasting longer than 28
days to be "medically unnecessary" for treating
Lyme disease. Id. ¶¶ 91-92. BCBSNC never
informed Jemsek that it used this specific policy to deny
Jemsek's patients' claims. Id. ¶¶
91, 93. Instead, BCBSNC told Jemsek's patients that
Jemsek's use of long-term antibiotics did not meet the
general "medical necessity" standard. Id.
2005, BCBSNC circulated an internal memo listing Jemsek as
one of the top 25 providers in the Charlotte area to which
BCBSNC paid the greatest volume in claims. Id.
¶¶ 96-97. Later in 2005, BCBSNC stopped paying
Jemsek's patients' claims for long-term antibiotic
use in treating Lyme disease. Id. ¶ 99. For the
first time, Jemsek learned that BCBSNC would not reimburse
claims for antibiotic treatment of Lyme disease beyond 28
days. Id. Jemsek alleges that, in taking these
actions, BCBSNC enlisted defendants' help in order to put
Jemsek out of business by fixing the pricing of Lyme-disease
treatment, forming a monopoly in favor of physicians whom
BCBSNC agreed to reimburse, and allocating market share for
Lyme-disease patients to physicians providing less-expensive
services. Id. ¶¶ 102-03.
2005, around the same time BCBSNC notified Jemsek of its
policy toward long-term antibiotic treatment of Lyme-disease
patients, some of Jemsek's patients lodged complaints
with the NCMB regarding Jemsek's treatment of their Lyme
disease with long-term antibiotics. Id. ¶¶
121-22. The patients participated in BCBSNC plans.
Id. Jemsek alleges that former NCMB members
solicited, generated, or staged the complaints. Id.
¶¶ 107, 109, 121. In response to the complaints,
the NCMB investigated Jemsek's practice and asked him to
answer questions regarding the patients' complaints.
Id. ¶¶ 107, 109, 128. Specifically, the
investigation concerned itself with Jemsek's use of
long-term antibiotics in treating Lyme-disease patients.
Id. ¶¶ 128, 131, 134.
December 2005, the NCMB recommended charging Jemsek with
professional misconduct for improperly diagnosing Lyme
disease and improperly using long-term antibiotics to treat
Lyme disease. Id. ¶¶ 139-40. After the
charges against Jemsek were made public, BCBSNC relied on the
formal charges to place a hold on all claims of Jemsek and
his clinic. Id. ¶ 141. BCBSNC also ordered a
review of all pending claims dating to October 2005 and
stated that it would not pay such claims. Id. ¶
March 2, 2006, BCBSNC announced a formal policy regarding
Lyme disease, which became effective on May 8, 2006.
Id. ¶ 143. The policy excluded antibiotic
treatment of Lyme-disease patients for longer than 28 days as
"medically unnecessary." Id. ¶ 145.
Jemsek alleges that this action was taken in concert with the
NCMB's proceedings against Jemsek as part of a conspiracy
to financially benefit BCBSNC. Id.
formal hearings before the NCMB began on June 14, 2006, and
ended on July 20, 2006. 141149. The process culminated with
the NCMB issuing a disciplinary order on August 21, 2006 (the
"2006 Order"). Id., ¶¶ 149, 153;
Am. Compl. Ex. A. The 2006 Order contained certain findings
of fact, including that Jemsek diagnosed Lyme disease in a
manner that departed from accepted and prevailing standards
of medical practice; administered treatment that similarly
diverged from accepted and prevailing practices, specifically
his use of long-term antibiotics; failed to adequately
educate and inform his patients that his method of diagnosing
Lyme disease departed from recognized standards for
diagnosing the disease; and failed to adequately educate and
inform his patients that his use of long-term antibiotics
departed from recognized standards for treating Lyme disease.
See Am. Compl. Ex. A. Based on these findings, the NCMB
concluded that Jemsek's diagnosis and treatment practices
constituted unprofessional conduct by failing to adhere to
acceptable and prevailing standards of medical practice, and
Jemsek's failure to explain his methods of diagnosis and
treatment violated his patients' informed consent.
Id. The NCMB suspended Jemsek's medical license
for twelve months, a decision it stayed pending Jemsek's
adherence to certain terms and conditions. Id. These
terms and conditions restricted how Jemsek could treat
Lyme-disease patients and barred him from using long-term
antibiotics without pre-clearance. Am. Compl. ¶¶
149, 155; see Am. Compl. Ex. A. After the NCMB issued the
2006 Order, Jemsek continued practicing medicine in North
Carolina and complied with the 2006 Order's requirements.
Am. Compl. ¶ 167.
alleges that the NCMB and former Board members initiated the
NCMB's investigative process as part of a conspiracy to
restrain Jemsek's medical practice by restricting the
types of treatment he could administer to Lyme-disease
patients to those treatments consistent with BCBSNC's
policies. Id¶¶ 124, 126, 127, 133, 137, 138-39,
154-56, 165. According to Jemsek, the 2006 Order was the
"byproduct" of the conspiracy. Id., ¶
156. Jemsek also accuses defendant Dr. Rhyne-then a Board
member-of spearheading the investigation and encouraging
Board members to investigate Jemsek because Dr. Rhyne
consulted on BCBSNC's Lyme-disease policy. Id.
¶¶ 105, 107, 115-16, 121-24.
2007, the NCMB initiated a new investigation into
Jemsek's use of hyperbaric chambers to treat Lyme-disease
patients. Id. ¶ 172. The NCMB and former Board
members communicated to Jemsek through his attorney that the
NCMB would not pursue the new investigation or further
discipline if Jemsek allowed his North Carolina medical
license to lapse or become inactive. Id. ¶ 174.
In response, Jemsek placed his North Carolina license on
inactive status. Id. ¶ 177. Jemsek alleges that
the NCMB conspired to violate the Sherman Act by offering to
forego further disciplinary actions in exchange for Jemsek
letting his license lapse or placing it on inactive status.
Id. ¶¶ 167, 175, 177.
23, 2008, the NCMB issued a "Public Letter of
Concern" (the "2008 Letter"). Id.
¶ 179; Am. Compl. Ex. B. The 2008 Letter-a public
record-represented the conclusion of the NCMB's inquiry
in Jemsek's use of hyperbaric chambers to treat
Lyme-disease patients. See Am. Compl. Ex. B. The 2008 Letter
noted that Jemsek failed to supervise his nurse practitioners
consistent with regulations, used a form of treatment
"non-indicated for Lyme disease, " and did so after
being ordered to stop using long-term antibiotics, which the
NCMB had also found to fall below acceptable and prevailing
standards of medical practice. See id. Jemsek
alleges that defendants' aim in issuing the 2008 Letter
was to restrain trade and prevent Jemsek from practicing
medicine in North Carolina and elsewhere. Am. Compl.
¶¶ 180-82, 190.
September 9, 2014, Jemsek sued the NCMB and some of its
current and former Board members alleging that in issuing the
2006 Order and 2008 Letter defendants violated his right to
due process under the United States Constitution. See
Jemsek v. State of North Carolina. (Jemsek I) No.
5:14-CV-504-BO, (E.D. N.C. Sep. 9, 2014) [D.E. 1]. He sought
a declaration that the NCMB's 2006 Order and 2008 Letter
were null, void, and unconstitutional, and a mandatory
injunction directing the current Board members to rescind the
2006 Order and 2008 Letter. See UL; Order,
Jemsek I. No. 5:14-CV-504-BO (E.D. N.C. Mar. 23,
2015) [D.E. 65] 7-8.
March 23, 2015, the Honorable Terrence W. Boyle granted
defendants' motion to dismiss. The court held that the
Eleventh Amendment barred Jemsek's claims against the
NCMB and his official-capacity claims against the
Board-member defendants. Order, Jemsek I. No.
5:14-CV-504-BO (E.D. N.C. Mar. 23, 2015) [D.E. 65] 6-9. In
doing so, the court explained that the relief sought was
"clearly retrospective" because the claim for
declaratory relief "addresse[d] alleged wrongs that
occurred entirely in the past, " and the claim for
injunctive relief "relate[d] only to the consequences of
actions in the past." Id. As for Jemsek's
individual-capacity claims against the former Board members,
the court observed that Jemsek lacked standing to pursue
those claims against the former Board members because a
favorable judgment would not redress his alleged harms.
Id. at 8-9. As the court stated: "the past
board members would have no authority to comply with an
injunction and a declaratory judgment would have no legal
effect on these individuals." Id. at 9.
appealed. On October 13, 2016, the Fourth Circuit affirmed
the dismissal. Jemsek v. Rhvne. (Jemsek I Appeal),
No. 15-1420, 2016 WL ...