Introduction: An In-House Counsel’s View
| Date | 01 February 2010 |
INTRODUCTION
No
sector
of
the
U.S.
economy
is
more
important
to
American
consumers
than
the
health
care
sector.
Not
only
are
health
care
services
indispensable,
having
no
reasonable
substitutes,
but
in
2008,
the
latest
year
for
which
statistics
are
available,
expenditures
for
health
care
were
$2.3
trillion
or
16.2
percent
of
U.S
Gross
Domestic
Product,
amounting
to
$7,681
per
person.’
The
aggregate
annual
cost
of
an
average
family
health
plan
was
$12,680
in
2008,
of
which
the
average
worker’s
annual
contribution
was
$3,354
and
rising
as
a
percentage
of
the
total cost.
At
the
same
time,
businesses
that
offer
their
employees
health
insurance
are
cutting
back
on
these
plans
and
are
increasing
employee
contributions
and
deductibles.”
Health
care
is
big
business.
Because
the
United
States,
unlike
many
other
countries,
historically
has
relied
primarily
on
market
forces
to
allocate
health
care
resources,
it
is
no
surprise
that
increasing
health
care
costs
have
attracted
the
attention
of
state
and
federal
antitrust
enforcement
agencies,
whose
job
is
to
examine
whether
conduct
adversely
affecting
competition
is
a
significant
cause
of
this
phenomenon.
Indeed,
one
goal
of
health
care
reform
is
to
increase
competition
among
firms
in
the
health
care
sector
to
lower
health
care
costs.
Accordingly,
the
Federal
Trade
Commission
(FTC)
has
indicated
that
antitrust
issues
in
the
health
care
sector
will
be
one
of
its
priorities,*®
and
its
actions
appear
to
corroborate
this."
For
example,
1,
See
Micah
Hartman
ef
al.,
Health
Spending
Growth
at
a
Historic
Low
in
2008,
29
HEALTH
AFF.
147
(2010),
2,
See
generally
Vanessa
Fuhrmans,
Workplace
Health
Premiums
Continue
Climb
but
Rate
Slows,
WALL
ST.
J.,
Sept.
24,
2008,
at
B3.
3.
See
generally
Antitrust
Spring
Meeting
Ends
with
Enforcers’
Views
on
Challenges,
ANTITRUST
&
TRADE
REG.
REP.
(BNA)
329
(Apr.
3,
2009)
{noting
FTC
chairman’s
comment
that
health
care
is
certain
to
receive
FTC
attention);
J.
Thomas
Rosch,
Comm’r,
FTC,
Enforcement
Priorities
in
the
New
Administration
3-4,
Remarks
Before
Global
Competition
Review’s
2009
Competition
Law
Review
(Nov.
17,
2009),
available
at
http://www.
ftc.gov/speeches/rosch/09
111
7enforcementprioritiesremarks.
pdf
(“[T]he
FTC
manages
its
limited
resources
by
focusing
on
industries
that
most
directly
affect
consumers
and
in
which
the
agency
has
particular
expertise.
These
industries
include
health
care...
.
The
Commission
is
committed
to
doing
everything
it
can
to
promote
competition,
choice,
and
innovation
in
health
care
markets
....
Our
current
chairman
has
made
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