Tuesday, November 23, 2004

Maryland doctors who take part in group boycotts or work slowdowns to protest the state’s high medical-malpractice insurance rates run the risk of violating antitrust law, state officials say.

“Doctors can lobby and they can also make independent, unilateral decisions on how they want to handle their own business. But what they can’t do is get together and agree not to see patients,” said Ellen S. Cooper, an assistant attorney general in Maryland.

Ms. Cooper would not specifically comment on recent actions by physicians in Prince George’s and Washington counties.

Last week, doctors at Prince George’s Hospital Center and in Washington County in Western Maryland said they would cancel nonemergency procedures to draw public attention to the rising cost of medical-malpractice insurance.

At issue is whether independent doctors in Maryland decided as a group to withhold services to change their economic circumstances. If so, they might be crossing a line from political protest to price fixing and collusion, antitrust lawyers warned.

“It sounds pretty dangerous to me,” said Herb Hovenkamp, a professor at the University of Iowa who specializes in antitrust law. “There is a labor exemption that permits employees to do this, but independent doctors don’t qualify for labor immunity.”

Mr. Hovenkamp said doctors could be penalized for participating in work slowdowns or group boycotts. They could be forced to reimburse monetary losses that result from the slowdown.

“If the hospital takes a big hit in revenue, the damages could get quite large,” he said.

Bob Howell, a spokesman for the Prince George’s Hospital Center, said it hasn’t suffered in the slowdown.

“From our perspective, we haven’t seen that much of a difference,” Mr. Howell said. “There haven’t been any doctors unavailable to do certain procedures.”

“Professionals are not exempted from the antitrust laws, and they’re not allowed to … boycott or fix prices,” said Bert Foer, president of the D.C.-based American Antitrust Institute. “They’re at a risk when they do this sort of thing.”

The doctors who participated in the recent slowdowns say they want state lawmakers to call a special session to reduce malpractice insurance premiums. The doctors say the rising rates are forcing many physicians to retire, leave the state or change specialities.

Last week, Gov. Robert L. Ehrlich Jr., a Republican, said he planned to deliver a revised medical-malpractice insurance reform bill to Democratic legislative leaders this week.

Mr. Ehrlich has been working with House Speaker Michael E. Busch and Senate President Thomas V. Mike Miller Jr., both Democrats, on a malpractice reform measure for a special General Assembly session before a 33 percent increase in insurance premiums takes effect Dec. 31. The doctors’ first payments of the higher premiums are due Dec. 1.

Dr. Willie C. Blair, president of the medical staff at Prince George’s Hospital Center, said the slowdown was a last resort for doctors because lawmakers have been slow to call a special session. He said the slowdown, in which more than 100 physicians participated, will not continue this week.

About 40 physicians from Prince George’s County and more than 60 from Washington County participated in last week’s slowdown, which included halting elective procedures such as biopsies and hernia operations.

Dr. Blair said he wasn’t worried about facing sanctions as a result of the slowdown. “Lock me up and send me to jail,” he said. “I can’t pay my workers, I can’t pay my malpractice insurance. … The lawyers said we couldn’t do it, and they’ve been keeping us in line all along. We followed the rules and followed the rules, and look where it got us. We’re down and out.”

Ms. Cooper, chief of the antitrust division at the office of the attorney general, said doctors generally can organize as a group to lobby lawmakers for a common goal. “If you are interested in lobbying and speaking to legislators, you have a large scope to get together with people who are like-minded to come up with a common position,” she said.

But the antitrust law stops short of allowing physicians to change their business practices to get the attention of lawmakers, she said.

Federal and state antitrust laws prohibit a group boycott because it would reduce the availability of goods and services. The laws aim to prevent independent businesses from coming together to create a monopoly that would harm consumers.

Mr. Hovenkamp said the Maryland attorney general’s office or the Federal Trade Commission could file an antitrust complaint against the physicians. Patients or hospitals also would be permitted to file complaints if they have been harmed economically.

Dr. Blair said physicians will not rule out another slowdown. But he doesn’t expect that to happen anytime soon. “We just wanted to be heard,” he said. “We’re trying to get some results.”

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