The Health Care Quality Improvement Act of 1986: its history, provisions, applications and implications

Congress granted qualified immunity from liability for peer review participation to physicians, osteopaths and dentists, created a national practitioner data bank to track inept, incompetent or unprofessional physicians, and enacted procedural rules for due process, privilege restrictions, and reporting and disbursement of information. The Health Care Quality Improvement Act of 1986 is now in full force, and peer review participants are anxious to cloak themselves with immunity from actions brought by health care professionals. Although its goals are worthy, HCQIA's effects remain to be seen. Serious loopholes appear to exist, warranting close monitoring and possibly early amendment of the Act. Cautious judicial assessment is needed, in order to prevent not only circumvention of the Act's requirements by artful litigants, but also use of the national data bank by health care entities as a pretext for denying privileges and escaping antitrust liability.     

A primer on US antitrust claims against patentees under Walker Process

Legal context: In the wake of two recent cases from the Federal Circuit onthe subject, this article provides an introduction to the WalkerProcess doctrine under US law. Under the doctrine, a patenteewho knowingly enforces a patent procured by intentional fraudon the patent office may lose its immunity to antitrust claims,should it act to enforce its patent. Key points: Walker Process fraud refers to a knowing and deliberate fraudperpetrated on the patent office as opposed to mere acts ofinequitable conduct. Proving that a patent applicant engagedin Walker Process fraud does not by itself prove liability foran antitrust violation. The accused infringer must still provethe individual elements of an antitrust claim. Antitrust claimsbased on Walker Process fraud require significant time and resourcesto litigate. Practical significance: With the allure of mandatory treble damages and attorney's fees,antitrust claims based on Walker Process fraud can serve asa potent counterclaim for an accused infringer's arsenal. Butthe legal requirements and resources needed to successfullylitigate these claims to a conclusion may temper their effectivenessfor the typical patent-infringement suit.     

Recent developments in medicine and law

This article addresses important developments in the field of medicine and the law during the last year and highlights some of the significant areas of law affecting health care providers that should be considered. Actions against health care providers may include challenges to peer review immunity, allegations concerning the practice of medicine across state lines without a license, and even accusations of wrongfully assisting a patient to commit suicide. These areas are addressed in turn by this article. Finally, antitrust developments over the last year are briefly addressed as an emerging area of concern for providers forming complex practice networks in today's health care arena.     

Ready or not? A systematic review of case studies using data-driven approaches to detect real-world antitrust violations

Cartels and other anti-competitive behaviour by companies have a tremendously negative impact on the economy and, ultimately, on consumers. To detect such anti-competitive behaviour, competition authorities need reliable tools. Recently, new data-driven approaches have started to emerge in the area of computational antitrust that can complement already established tools, such as leniency programs. Our systematic review of case studies shows how data-driven approaches can be used to detect real-world antitrust violations. Relying on statistical analysis or machine learning, ever more sophisticated methods have been developed and applied to real-world scenarios to identify whether an antitrust infringement has taken place. Our review suggests that the approaches already applied in case studies have become more complex and more sophisticated over time, and may also be transferrable to further types of cases. While computational tools may not yet be ready to take over antitrust enforcement, they are ready to be employed more fully.     

Federal antitrust jurisdiction in peer review cases: the Pinhas decision

In Summit Health Ltd. v. Pinhas, the United States Supreme Court by a narrow majority found that the exclusion of an ophthalmologist from a hospital in Los Angeles had a sufficient effect on interstate commerce to establish federal jurisdiction under the Sherman Act. In resolving a split among the federal circuit courts of appeal, the Court applied the broad jurisdictional test from McLain v. Real Estate Board of New Orleans, Inc. to peer review proceedings. Despite many ambiguities in the majority opinion by Justice Stevens and a scathing dissent by Justice Scalia, the effect of Pinhas will be to increase the suits in federal court on antitrust grounds brought by aggrieved medical staff members and applicants denied appointments or privileges, and to decrease, if not eliminate, the likelihood of preliminary dismissal on jurisdictional grounds. This, in turn, should serve to emphasize the importance of complying with the Health Care Quality Improvement Act in order to obtain immunity from damages under federal antitrust and state laws.     

反垄断请求的可仲裁性问题研究——以美国为视角

本文以美国为视角,对反垄断请求的可仲裁性问题进行了探讨。文章概述了美国法院在这一问题上的态度,讨论了《纽约公约》的相关规定以及美国的有关立法和司法实践,论及了《谢尔曼法》和AmericanSafety等案件,并对美国法院审理三菱汽车公司一案的判决予以重点研究,分析了该案判决对国际商事仲裁所产生的深远影响。     

Judicial Management of the Pretrial Process in Massive Litigation: Special Masters as Case Managers

This article reports on the experience of Special Masters appointed to regulate pretrial phases of a large civil antitrust suit. It describes techniques for expediting discovery, determining claims of privilege in production of documents, establishing stipulations of undisputed facts, and controlling and resolving disputes arising in discovery. It suggests a "managerial" approach to pretrial that is flexible and experimental and that may be useful in controlling the pretrial phase of other "big" cases.     

Physician organizations: two years under the FTC/DOJ guidelines

The joint antitrust enforcement statement for physician networks was designed in part to dispel uncertainty in the physician community about antitrust agency law enforcement intentions. In the two years since its issuance, the antitrust agencies have generally, but not always, been consistent in applying the methodology and standards set forth in their enforcement statement. Even though agency pronouncements like the enforcement statement are not binding on private parties or the federal courts, both the statement and subsequent advisory opinions and business review letters have been exceptionally helpful, if not always encouraging, to health care providers in their antitrust planning efforts.     

经营者集中的反垄断审查制度刍议简

市场经济大背景下,经营者集中活动无疑给参与者和整个市场带来了许多机遇,但与此同时也给良好市场竞争秩序的保持带来了挑战.经营者集中反垄断审查制度因此应运而生.这一制度广泛借鉴了他国优秀的立法与实践成果,满足了反垄断法内在的价值追求,但在申报标准、审查程序、审查标准等方面仍有不完整、不完善和值得商榷之处.     

UNILATERAL REFUSALS TO LICENSE

Most antitrust claims relating to intellectual property involvechallenges to agreements, licensing practices, or affirmativeconduct involving the use or disposition of the intellectualproperty rights or the products they cover. However, sometimesan antitrust claim centers on an intellectual property owner'srefusal to use or license an intellectual property right, perhapscoupled with efforts to enforce the intellectual property rightagainst infringers. The allegation may be that the intellectualproperty right is so essential to competition that it must belicensed across the board, or that a refusal to license it toone particular party was discriminatory, or that in contexta refusal to license helped a monopolist to acquire or maintainmarket power. Claims based on a unilateral refusal to licensepresent important issues at the center of the tension betweenantitrust and intellectual property. Unilateral refusal to licensecases cut to the heart of the intellectual property owner'sright to exclude others from practising the intellectual property.As such, efforts to invoke antitrust law in this context deservespecial scrutiny. We examine the basic principles relating tounilateral refusals to license intellectual property rights.We then analyze the various sets of circumstances in which antitrustplaintiffs argue for exceptions to those basic rules. Finally,we distinguish unilateral from concerted and conditional refusalsto deal.     

我国反垄断行政诉讼的困境及因应——基于165份判决书的实证分析

行政诉讼在我国反垄断执法体系中居于重要地位。通过165份司法判决文书的实证分析,表明我国反垄断行政诉讼虽有发展,但总体呈现发展起点低、案件总量低、执法机构被诉比例低、原告胜诉率低等"四低"现象,这与反垄断行政诉讼的原告资格认定困难与合法性审查范围偏窄等内因不无关系。反垄断立法条文模糊、执法专业性强等特点易使反垄断执法存在不确定性,要消除这种不确定性,除了实体规范的细化保障外,程序保障亦不容忽视。所以说,为反垄断行政诉讼确立特殊的程序规则不但具有理论必要性,也存在现实紧迫性。申言之,在反垄断行政诉讼中应当尽快确立以程序参与为基础的利害关系认定制度,建立司法审查对程序性执法细则制定的督促机制,并适度加强法院实质审查的力度。     

关于美国横向并购反垄断审查政策最新发展的述评

2010《横向并购指南》体现了美国政府关于横向并购反垄断审查政策最新发展。一方面,2010《指南》维持了1992《指南》中一些重要的方面,同时,2010《指南》也对1992《指南》作出了较大的修改。2010《指南》所体现的横向并购反垄断审查政策和以前相比,审查重点有所变化,审查过程更灵活,分析工具更多元化,审查中考虑更多的因素,审查范围会更广,而审查的门槛也有所提高。     

Antitrust, health care quality, and the courts

Antitrust law represents the principal legal tool that the United States employs to police private markets, yet it often relegates quality and nonprice considerations to a secondary position. While antitrust law espouses the belief that vigorous competition will enhance quality as well as price, little evidence exists of the practical ability of courts to deliver on that promise. In this Article, Professors Hammer and Sage examine American health care as a vehicle for advancing understanding of the nexus among competition, quality, and antitrust law. The Article reports results of a comprehensive empirical review of judicial opinions in health care antitrust litigation between 1985 and 1999, with specific attention to courts' handling of quality and other nonprice concerns. Professors Hammer and Sage conclude that, although antitrust law cannot be expected to serve as the sole oversight mechanism for industries as complex and quality dependent as health care, courts have been successful incorporating some nonprice factors into antitrust analysis.     

Why don't courts treat hospitals like tanks for liquefied gases? Some reflections on health care antitrust enforcement

In this article, I use the Federal Trade Commission and the Department of Justice 2004 report Improving Health Care: A Dose of Competition as an occasion to comment on two specific issues that have arisen in health care antitrust: the recent string of losses by the enforcement agencies in hospital merger cases and an antitrust exemption for physicians to bargain collectively with health insurers. One of the more salient facts about health care antitrust enforcement is the notable recent lack of success of the enforcement agencies in hospital merger cases. This may be due to judges and juries holding views of hospital markets as being different from markets for other goods and services. My conclusion is that hospitals are an industry with unique attributes, but nothing about the specifics of the health care industry suggests that the unregulated use of market power in this industry is socially beneficial. As a consequence, the antitrust laws should be enforced here as in any other industry. Countervailing power is an issue that has come to the fore in health care antitrust. Physicians have explicitly asked for legislative exemption from the antitrust laws in order to bargain collectively with insurance companies, as a means of counteracting insurers' monopsony power. It is not clear that health insurers possess significant monopsony power. Even if they do, bestowing monopoly power on physicians will not necessarily improve matters. Active antitrust enforcement in insurance markets is the correct response, not blanket exemptions for providers.     

COMPETITION POLICY IN CHINA AND ITS RELEVANCE TO SMES

Competition policy has great relevance to all the firms in any economy. Even though it is unlikely that small and medium-sized enterprises (SMEs) have enough market power to constrain competition through a misuse of such power, they may still face prosecution if they are involved in a boycott of competitors or suppliers, price-fixing, output-restriction and other monopoly agreements. This article discusses antitrust issues pertaining to SMEs with a focus on China’s Anti-Monopoly Law (AML) and its implementation rules. Contrary to the popular view that SMEs benefit from competition laws, evidence shows that they are reluctant to get involved in antitrust litigation against large firms partly because of the high legal costs involved. There is an urgent need to promote an awareness of antitrust compliance in China and to educate SMEs about the need to avoid breaching the new antitrust law and its associated regulations. In the meantime, SMEs should take full advantage of the antitrust laws to fight against the abuse of market dominance directed at them, and to gain equal opportunities to market access.     

Cognitive biases in the peer review of bullet and cartridge case comparison casework: A field study

ObjectiveForensic judgments and their peer review are often the result of human assessment and are thus subjective and prone to bias. This study examined whether bias affects forensic peer review.HypothesesWe hypothesized that the probability of disagreement between two forensic examiners about the proposed conclusion would be higher with “blind” peer review (reviewer saw only the first examiner’s comparison photos) than with “non-blind” peer review (reviewer also saw the first examiner’s interpretation and proposed conclusion). We also hypothesized that examiners with a higher perceived professional status would have a larger effect on the reported conclusion than examiners with a lower status.MethodWe acquired data during a non-blind and a blind peer review procedure in a naturalistic, covert study with eight examiners (3–26 years of experience). We acquired 97 conclusions of bullet and cartridge case comparisons in the blind and 471 in the non-blind peer review procedure.ResultsThe odds of disagreement between examiners about the evidential strength of a comparison were approximately five times larger (95%-CI [3.06, 8.50]) in the blind than in the non-blind procedure, with disagreement about 42.3% and 12.5% of the proposed conclusions, respectively. Also, the odds that their proposed conclusion was reported as the final conclusion were approximately 2.5 higher for the higher-status examiners than for lower-status examiners.ConclusionsOur results support both the hypothesis that bias occurs during non-blind forensic peer review and the hypothesis that higher-status examiners determine the outcome of a discussion more than lower-status examiners. We conclude that blind peer review may reduce the probability of bias and that status effects have an impact on the peer reviewing process.     

Arnett v. Dal Cielo: peer review confidentiality threatened by medical board investigational subpoenas

If not modified or overturned on appeal, the Dal Cielo decision will very likely have a significant negative impact on the ability of California's organized peer review bodies to conduct frank, candid, and confidential peer review. Dal Cielo appears to permit the Board to subpoena committee minutes, physician credentials files, and live testimony whenever it determines that a physician should be investigated. Further, the impetus for the Board's investigation might be little more than a complaint from a single patient or even a disgruntled former employee of the physician or hospital. Regardless of current and future decisions, however, peer review bodies in California and other states operating under similar court decisions still retain at least some limited means to protect the confidentiality of their evaluative work. If, for example, a peer review body can establish that an investigatory subpoena seeks irrelevant information, is based upon little more than unsubstantiated rumor, or that the medical board has made no efforts to obtain information from other available, non-privileged sources, it may be able to convince a court that the subpoena is not supported by good cause. Peer review organizations should thus consider challenging medical board subpoenas in court to narrow their scope or establish that there is sufficient need for them. If any peer review body is served with an investigatory subpoena by a medical board requesting production of peer review information, it should carefully assess applicable state confidentiality protections.(ABSTRACT TRUNCATED AT 250 WORDS)     

Trademarks as Sources of Market Power: Legal and Historical Encounters

Although the history of trademarks is well catalogued in various review articles and books in different jurisdictions, one particular missing link is whether trademarks are sources of market power—from a historical perspectives. This article addresses exactly that question, and presents some of the legal encounters that support the historical narrative that trademarks are sources of market power, by examining selected trademark cases—centuries apart in England and the United States. The overall purpose of these discussions is aimed at situating the law and policy of trademarks in the antitrust regime when significant historical trademark cases are brought into the equation and whether a prediction can be made that trademarks are increasingly heading into a clash with the antitrust regime.     

消费者反垄断诉讼的本源与我国应然之探

对于私人反垄断执行,美国《反托拉斯法》所规定的三倍赔偿制度功不可没,为此,许多学者都认为,在确定消费者反垄断诉讼的制度中,也应确定这种民事惩罚性的机制,才能使消费者反垄断诉讼得到很好的运行。但在私人反垄断践行最好的美国,消费者个人是被排除在私人执行之外的,按照美国《反托拉斯法》的规定,消费者个人并不能获得三倍赔偿的诉讼激励。美国《反托拉斯法》所规定的三倍赔偿机制系基于其责任体系仅有民事责任和刑事责任,没有处于刑事和民事责任之间的行政处罚责任,民事责任的三倍赔偿机制实际起到了落实"应刑罚性"和刑罚"最后手段性"的威慑与嚇阻重任。而在反垄断法责任中存在刑事责任、民事责任和行政责任的国家,行政责任中的行政处罚责任完全担当了刑事威慑和遏制的补充责任,为避免过度制裁和重复制裁而普遍都没有设置三倍的民事赔偿责任。消费者反垄断诉讼必须以维持市场秩序为本,对消费者反垄断诉讼的高热情和高厚望必须回归到理性和现实,在具体制度的设置时也应有所体现。     

Antitrust in China: The Problem of Incentive Compatibility

This paper reviews China's recent efforts to enact a competitionpolicy (antitrust) law. We focus on three issues: (1) What isthe substance of the proposed law, and how does it differ fromexisting antitrust law in other countries, (2) How will thelaw be implemented or enforced, and how will those who mustimplement this law interpret their mandate, and (3) What willbe the likely effects of this law given China's unique historyand cultural heritage. We emphasize China's economic, legaland regulatory contexts in which an antitrust law may be enforced.Our central focus is the problem of establishing a substantiveand procedural legal framework that is incentive-compatiblewith economic efficiency and growth. The draft law could beimproved, both to increase its clarity and to make its enforcementmore consistent with the goal of achieving improvements in economicefficiency. Nevertheless, there is much merit in the draft,especially its strong focus on reducing anticompetitive practicesof state-owned enterprises (SOEs) and other government bodies.However, our major difficulty with the new law is that, in theabsence of a tradition of reliance on the rule of law, Chineseand foreign enterprises will find it very difficult to relyon the antitrust statute or the actions of the courts in Chinaas a basis for predicting the antitrust liability that mightresult from various business practices. Therefore, the principalvector by which antitrust law (or indeed any law) affects economicbehavior is absent from the Chinese scene. Unless the bureaucracythat enforces the new antitrust law actively pursues a policyof consistent enforcement based on written guidelines, staredecisis, or other sources of predictability, the substance ofthe statute itself will have little significance. That outcomewould represent a significant loss for the economic welfareof the Chinese people.