Weiss v. American Academy of Ophthalmology, Inc.

Background

Dr. Jeffrey N. Weiss, a Florida resident and member of the American Academy of Ophthalmology, Inc. (AAO), conducted two studies involving the transfer of bone-marrow-derived stem cells to the eyes of visually impaired patients. He alleged that the studies had been reviewed and approved annually by an institutional review board.

AAO’s Code of Ethics contained mandatory and enforceable Rules of Ethics and administrative procedures. The code authorized an Ethics Committee to investigate possible violations and authorized the Board of Trustees to make the final determination and impose sanctions. The relevant rules addressed research and innovation and communications to the public. The administrative procedures required ethics investigations to be conducted confidentially and required sufficient factual notice to allow the member to respond and prepare a defense.

The Ethics Committee investigated Dr. Weiss’s studies, raising concerns about research protocols, scientific support, fees, advertising, patient care, and published claims. After a hearing, the committee recommended a three-year membership suspension and a concurrent ban on sponsoring, presenting, or participating in various AAO activities. Dr. Weiss did not allege that the Board of Trustees had accepted the recommendation or taken final action. He did allege that disclosure of the investigation had financially harmed his medical practice.

Claims and motion

After the court dismissed his original complaint with leave to amend, Dr. Weiss filed an amended complaint asserting breach of contract, violations of the Florida Deceptive and Unfair Trade Practices Act, violations of California Business and Professions Code section 17200, and requests for declaratory and injunctive relief, damages, restitution, and attorneys’ fees. AAO moved to dismiss for lack of subject-matter jurisdiction and failure to state a claim for which relief could be granted.

Jurisdiction

The court held that Dr. Weiss lacked standing and that his claims were not ripe to the extent they were based on possible future sanctions. Standing requires a concrete injury, a connection between the injury and the defendant’s conduct, and a likelihood that a favorable decision would remedy the injury. Because the Board of Trustees had not acted and Dr. Weiss had not plausibly alleged that it routinely imposed recommended sanctions, any future harm from the recommendation was hypothetical. The request for a declaration did not change that conclusion.

The court separately held that Dr. Weiss had standing to assert claims based on the alleged financial harm that his practice had already suffered from disclosure of the investigation. The court concluded, however, that those allegations were not sufficiently specific to state a plausible claim.

Failure to state a claim

Assuming that violating the Code of Ethics could constitute a breach of contract, the court found that Dr. Weiss did not provide enough detail about the alleged violation of the confidentiality provision. He did not identify who disclosed information, what was disclosed, when the disclosure occurred, how it affected patient referrals, or other supporting details.

The court also rejected Dr. Weiss’s arguments that AAO breached the code by investigating studies that had institutional review board approval or by investigating noncommercial communications under the public-communications rule. The court reasoned that institutional review board approval did not necessarily prevent an investigation under the applicable version of the research rule, the public-communications rule applied to all communications to the public, and an investigation itself did not breach the code. The court stated that, apart from the confidentiality provision, Dr. Weiss had not identified a code provision that AAO breached.

Because the Florida and California statutory claims were based on the same alleged breach of the Code of Ethics, the court concluded that those claims also were not plausibly stated.

Disposition

The court granted AAO’s motion to dismiss the amended complaint. It granted Dr. Weiss leave to amend once again and allowed him to file a second amended complaint within 30 days from the date of the order.