How Come There Aren’t More Hospital Antitrust Cases? With Brennan Bilberry—Summer Shorts 1

May I just take a moment and thank the Healthy economist for leaving a super nice review on iTunes? The title of the review is “Best podcast on the healthcare industry,” and the Healthy economist writes, “There’s no one simple fix [for the healthcare industry], but [Relentless Health Value] contains valuable insights on what actions can be taken to make things better for consumers and patients.” Thank you, Healthy economist.

In this summer short, I am talking with Brennan Bilberry; and we’re talking about why everybody isn’t suing health systems for behaving badly in sometimes pretty egregious ways. Why isn’t anybody stepping in to prevent all of this consolidation that we all know, at this point, is pretty bad news? FTC, where are you?

Brennan Bilberry cites three reasons for the way fewer antitrust lawsuits than you’d think would be going on:

1. A continuing lack of transparency. It’s tough to sue someone when you aren’t really sure what they’re up to, and, even if you do, it’s hard to prove because you can’t get the data you need to prove it.

2. Political power of hospitals means legislatures have a hard time telling their major donors to kiss off and pass laws that actually enable legal recourse.

3. Turns out the FTC is a little toothless when it comes to those with tax-exempt (ie, nonprofit) status. Nobody expected nonprofits to act the way that some nonprofits are acting, and the laws haven’t caught up with the reality of the situation.

My guest in this healthcare podcast as aforementioned is Brennan Bilberry, who is a founding partner over at Fairmark Partners, which is a law firm litigating some of these antitrust lawsuits against some of these hospital chains.

The original pod with Brennan (EP395) is entitled “Consolidated Hospital Systems and Cunning Anticompetitive Contracts.”

Here’s a link to an article I was thinking about while recording this show about Daran Gaus’s hypothesis for how mergers will impact hospital prices.

And here’s a link to an article about how commercial prices for outpatient visits were 26% higher for patients receiving care at a health system than those visiting nonsystem physicians and hospitals.

Covering some of the consequences of consolidation and what it tends to do in local markets is the show with Cora Opsahl (EP373) and also the encore with Dale Folwell, state treasurer in North Carolina.

One last link is to the conversation I had with Scott Conard, MD (EP391), where the local hospital bought a local ACO (accountable care organization) physician organization and the community paid an additional $100 million to the hospital the following year.

You can learn more at fairmarklaw.com.

Brennan Bilberry is a founding partner of Fairmark Partners, LLP, a law firm focused on fair competition issues, especially in the healthcare industry. Fairmark has filed numerous antitrust cases against dominant hospital systems, seeking to tackle anticompetitive practices that lead to higher prices for businesses, consumers, and unions.

Prior to founding Fairmark, Brennan worked as a policy consultant and political operative whose work included overseeing environmental public policy campaigns in numerous countries, providing international political intelligence for US investors, advising political campaigns around the world, and designing consumer and legal advertising.

Brennan also worked on numerous US political campaigns, including serving as communications director for Terry McAuliffe’s 2013 successful campaign for Virginia governor, serving as deputy executive director of the 2012 pro-Obama Super PAC Priorities USA, and developing research and policy communications for the House Democrats.

Brennan is a native of Montana and South Dakota and has lived in Washington, DC, for the past 15 years.

00:23 Healthy economist’s review of Relentless Health Value.

00:52 Why aren’t more people suing hospitals?

01:16 How is the lack of transparency diminishing the number of lawsuits?

01:41 Why is the FTC a “little toothless” when it comes to nonprofits?

02:12 EP395 with Brennan Bilberry.

02:35 Why aren’t there as many antitrust cases as there are instances of antitrust laws being broken?

03:10 Has consolidation of hospitals systems been good or bad?

03:45 What quirk in the law creates an impediment for FTC?

04:17 What are certificates of public advantage?

05:03 Why is private antitrust litigation important?

Recent past interviews:

Click a guest’s name for their latest RHV episode!

Stacey Richter (INBW38), Scott Haas, Chris Deacon, Dr Vivek Garg, Lauren Vela, Dale Folwell (Encore! EP249), Eric Gallagher, Dr Suhas Gondi, Dr Rachel Reid, Dr Amy Scanlan