A Law and Economics Analysis of the Antitrust Treatment of Physician Collective Price Agreements

Antitrust Chronicle, April 2024

12 Pages Posted: 22 May 2024

See all articles by Seth B. Sacher

Seth B. Sacher

Independent

Shawn W. Ulrick

U.S. Federal Trade Commission (FTC)

Paul R. Zimmerman

U.S. Federal Trade Commission - Bureau of Economics

Date Written: April 19, 2024

Abstract

Physician groups charged with price-fixing are typically prosecuted under civil law rather than criminal law even assuming the per se illegality of such agreements. This paper employs a “law and economics” approach to explain the history and evolution of this legal treatment. It argues that civil enforcement likely reflects a desire to promote efficient risk sharing agreements and/or clinical arrangements that provide benefits to patients — benefits that might be lost or mitigated due to “overdeterrence” should such agreements be regarded as criminal offenses. The paper also discusses application of the rule of reason standard to physician price fixing cases and how this standard may have efficiently evolved over time. Finally, the paper takes a normative approach to consider potential reforms to the antitrust treatment of physicians’ collective negotiations on price or price-related terms.

Keywords: Antitrust, health care, law and econonmics

JEL Classification: L4, K10, L84

Suggested Citation

Sacher, Seth B. and Ulrick, Shawn W. and Zimmerman, Paul R., A Law and Economics Analysis of the Antitrust Treatment of Physician Collective Price Agreements (April 19, 2024). Antitrust Chronicle, April 2024, Available at SSRN: https://ssrn.com/abstract=4834802

Shawn W. Ulrick

U.S. Federal Trade Commission (FTC) ( email )

600 Pennsylvania Ave., NW
Washington, DC 20580
United States

Paul R. Zimmerman

U.S. Federal Trade Commission - Bureau of Economics ( email )

601 New Jersey Ave. NW
Rm. 8103
Washington, DC 20580
United States

HOME PAGE: http://paul.r.zimmerman.googlepages.com/

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