Abstract

In the Kodak context, several common health care provider practices, previously challenged with varying results under traditional antitrust analysis, may be reexamined to focus upon the effect of refusals to deal in a secondary market with potential competitors in that secondary market. This Article focuses on three such practices: (1) the non-immunized revocation of hospital staff privileges for other than legitimate, quality-of-care motives; (2) the denial of hospital privileges to differentially credentialed, state-licensed providers; and (3) the closure of membership in comprehensive health care plans, such as preferred-provider organizations, combined with a refusal to deal with nonmembers. These practices should be increasingly vulnerable to attack under section 2 of the Sherman Act using a Kodak analysis. That is, courts more likely could find that defendant providers have monopoly power from the locked-in patient's perspective and that their refusal to deal enhanced that power. This Article, not intended as a scholarly survey of the literature or case law or as a prediction of how the lower federal courts will adjudicate a complaint, makes particular reference to the records developed in several health care antitrust cases in which the author has participated. This Article concludes that only by eliminating the patient-provider fee-for-service market altogether, so that there is no separate contractual relationship between patient and provider, will legitimate antitrust concerns be accounted for in the newly dominant health care plan or insurance markets. Such a decision implicates fundamental economic and social policy choices, however, and forces a recognition that competitive market and public utility (or state economy) approaches toward the regulation of health care markets may be mutually exclusive.

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