Antitrust Pedagogy Series: Greaney on Teaching Healthcare Antitrust

Antitrust and Competition Policy Blog is pleased to have Professor Thomas (Tim) Greaney of Saint Louis University School of Law guest blog in the second of our series in antitrust pedagogy. Tim is the Chester A. Myers Professor of Law and Co-Director, Center for Health Law Studies. He is a luminary in health care law and its intersection with antitrust. His most recent publications in the area have focused on hospital mergers. Within the larger health care law field, Tim is co-author of the major casebook, treatise and hornbook in the field. His guest blog is on Teaching Healthcare Antitrust.

Posted by Guest Blogger Tim Greaney

Because we have a large health law program at Saint Louis University (God bless U.S. News & World Report), I’ve had the luxury of teaching the antitrust / health care intersection in a number of different settings: the basic antitrust class; a seminar in antitrust and health care; a course entitled “health care financing and business organizations” (taken by almost all health law certificate students here); an IP-Antitrust Seminar and occasional classes taught to medical and public health students. The goals, coverage, tactics, and jokes necessarily vary with the class.

Health law cases pop up throughout the basic antitrust course: Cal Dental, Indiana Federation of Dentists, Maricopa, Jeff Parish, and Judge Posner’s HCA opinion are staples in most case books. Scattered through the course and idiosyncratic as these cases are, it’s difficult to develop an overarching account of antitrust law’s role in promoting competition in health care. However I think it important to point out that private and government litigation have served that important purpose (and occasionally still do). The healthcare cases also serve a pedagogical purpose by illustrating that antitrust doctrine needs to take into account market imperfections in order to make an accurate economic appraisal of the conduct and structure in that industry. To give one example, in Indiana Federation, the Court thrashed about in its competitive analysis, branding the dentists’ refusal to supply x-rays to third parties as  “withhold[ing] from their customers a particular service that they desire”and a "refusal to compete with respect to the package of services offered to customers." Taking into account the critical market imperfections that are dealt with by managed care (in this case via ‘utilization review’ evaluating x-rays) would have more precisely identified the effect and purpose of the conduct and revealed it as warranting summary condemnation. [This and a few dozen other examples of the neglected role of market failure are explored in my article, “Chicago’s Procrustean Bed: Applying Antitrust Law in Health Care” in the Antitrust Law J. (2004)]. In addition, other post-Chicago items like unilateral effects in differentiated product markets can be illustrated and elaborated by considering health care markets (e.g. the merger of two sophisticated teaching hospitals in a market served by many other hospitals, U.S. v. Long Island Jewish Hospital). 

In other settings, such as health law and the health financing course, teaching antitrust is, as the saying goes, both a challenge and an opportunity. The challenge is in laying down enough of a base so those who haven’t taken an antitrust course will be on board. The opportunity is in putting the law in context and applying it given the sometimes-conflicting commands supplied by other legal doctrines (eg. Medicare anti-kickback, exempt organization, state corporate, and Stark laws). As to teaching antitrust itself, my casebook (Furrow, Greaney, Johnson, Jost & Schwartz, Health Law [5^th Ed Thomson/West devotes 100 pages to the subject. My goal in the casebook was to give  students a look at the application to the health industry of the two most important antitrust concepts: conduct and structure. The former includes classic cartels and moves along the Section One continuum to advertising restraints, and other restraints carrying interesting “professionalism” justifications (standard-setting by medical specialty organizations). The book then goes on to consider the very actively litigated conduct/structural issues raised by partially integrated physician joint ventures and concludes with merger analysis. After that, (and exposure to the other areas of law mentioned above) students are ready to tackle problems (e.g. counseling regarding hospital-physician joint ventures that have both vertical and horizontal competitive dimensions and implicate all the other areas of law just mentioned.)

Finally, the health-antitrust intersection offers an opportunity to bring into class a seemingly endless stream of policy issues (e.g. health system reform proposals;  Tom Campbell’s lamentable physicians union legislation; exclusion payments involving generic drugs and the overall effect of Hatch-Waxman law; allowing HHS to negotiate directly with big pharma for Medicare Part D purchasing). It keeps you young.