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.     

Private credentialing of health care personnel: an antitrust perspective. Part One

This Article explores the antitrust and other implications of private credentialing and accrediting programs in the health care industry. Although such programs are usually sponsored by powerful competitor groups, they serve the procompetitive purpose of providing useful information and authoritative advice to independent decision makers. Part One examines the risk that credentialing will sometimes be unfair to competitors and deceive consumers. Its survey of common-law, antitrust, and regulatory interventions to correct such unfairness and deception seeks to determine the degree of oversight to which credentialing and similar activities have been and should be subjected. In recommending that judicial or regulatory scrutiny should be limited to discovering whether standards and practices have a rational relation to a procompetitive purpose, the Article argues that greater intrusion into credentialing schemes would be inconsistent with market theory and first amendment values and would discourage line-drawing efforts that stimulate competition and facilitate consumer choice. By emphasizing throughout that personnel certification and institutional accreditation embody ideology and opinion as well as factual information, Part One sets the stage for the argument in Part Two that antitrust law can and should be used to contest the dominance of a single ideology of health care and to facilitate the development of alternative sources of consumer information. The Article's overall thesis is that, whereas the quality of advice given to the public about health care personnel and similar matters should not be closely regulated, neither should the supply of competing information and opinion be artificially curtailed.