Minimizing antitrust and corporate liability risks.

Abstract

To avoid antitrust problems, health care organizations must conduct a fair hearing on decisions related to physicians' staff appointment or privileges. To win such litigation, the physician must show some effect on interstate commerce and prove a conspiracy. These cases are usually reviewed not as a per se violation (in which motives and other relative factors are not considered) but under the rule of reason test--that is, the court considers whether the action was more procompetitive or anticompetitive. Hospitals can protect themselves by using admission criteria related to their interests and excluding potential competitors from staffing decisions. Hospitals that are underused, are geographically isolated, or offer unique services will have the least latitude in staffing decisions. Physicians getting together to agree on charges constitutes price fixing--a per se violation. Preferred provider organizations can avoid price fixing by using the "messenger" or "supermessenger" approach to negotiating payment, in which they relay information between individual physicians and the payer. Having an outside committee establish the fee is another possibility. To minimize antitrust concerns, joint ventures should include pooling of capital, shared risk, enhanced competitive pressure, and efficiencies and economies of scale. In malpractice suits, hospitals--including their boards of trustees--are liable for the actions of their physicians. Boards must exercise their ultimate authority for staffing decisions. More malpractice cases are arising and awards are increasing in U.S. society, while at the same time companies that offered liability insurance are withdrawing from the market.(ABSTRACT TRUNCATED AT 250 WORDS)