Connecting the Dots: Quality, Antitrust and Medicine

Abstract

Antitrust applies to healthcare. Questioning the wisdom of this universal truth, medical professionals actively insisted and still insist on professional discretion, self-regulations and other practices that violate the antitrust laws. What do medical professionals aim to achieve by resisting the application of antitrust into their profession? What do antitrust enforcers aim to achieve by applying antitrust law to the medical profession? The answer is simple. Among others, both antitrust enforcers and medical professionals aim to ensure quality. Interestingly, albeit their goal is identical, their approach is different. Why? This essay explores this enigma by analyzing some seminal healthcare antitrust cases. It concludes that the U.S. antitrust enforcers by remaining faithful to the narrative that, the more the available choices, the better the quality, miss a crucial point: that the quality of medical treatment also depends on non-economic values such as the notions of safety and trust, essential features of the therapeutic enterprise. This essay proposes that the antitrust enforcers should extend the notion of healthcare quality when they apply antitrust law in the healthcare sector so that this notion encompasses the multiple facets of healthcare quality and the ethical values the doctor - patient relationship crucially depends on. Adopting an alternative, less myopic, approach would allow the antitrust enforcers to create an analytical framework under which the multiple dimensions of healthcare quality could be balanced against harm to competition. More importantly, it would ensure that antitrust enforcers and medical associations do not continuously struggle to impose their own views on what the prevailing facets of healthcare quality should be. In Donabedian’s language, an alternative approach would ensure that all functions of the health system commit to the quality goals that the system as a whole pursues.

Keywords: Antitrust, Quality, Professionalism, Self-Regulation, Horizontal Restraints, Medical Professionals, Rule of Reason, Procompetitive justifications, Section 1 of Sherman Act