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Antitrust Implications of Chiropractic Peer Review Committees

Published online by Cambridge University Press:  24 February 2021

Vicki Volper
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Abstract

Peer Review Committees (PRCs) that aid insurance companies in evaluating chiropractic treatments and fees have been the focus of recent court challenges. Some practitioners have argued that PRC activities constitute price fixing in violation of the Sherman Antitrust Act. PRCs have been successful thus far in claiming an exemption from antitrust scrutiny as a “business of insurance” within the meaning of the McCarran-Ferguson Act. This Note contends that PRCs are not exempt from antitrust regulation; since PRCs do not spread risks and are involved in inter-rather than intra-industry agreements, their activities do not fall within the narrowly defined “business of insurance” exemption.

The Note then analyzes the merits of the price fixing allegations under both the “per se” standard and the “rule of reason.” First, the Note concludes that the unique nature of the health care market and the legitimate functions served by peer review make the application of a per se standard inappropriate. Second, under the rule of reason, the Note indicates that peer review encourages efficient and innovative health care practices while it deters the escalation of health care costs. The Note concludes that the net effect of peer review is not anticompetitive, especially since PRCs lack the coercive power to compel compliance with the recommendations.

Type
Notes and Comments
Information
American Journal of Law & Medicine , Volume 8 , Issue 1 , Spring 1982 , pp. 45 - 68
Copyright
Copyright © American Society of Law, Medicine and Ethics and Boston University 2020

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References

1 National health expenditures by consumers rose from 18*8 billion dollars in 1960 to 114.4 billion dollars in 1979. U.S. Dep’t of Commerce, Statistical Abstract of the United States 105 (101st ed. 1980).

2 This approach is based on assumption that resources are allocateti most efficiently in a competitive market. L. Sullivan, Handbook of the Law of Antitrust 2 (1977).

3 See infra notes 131-35 and accompanying text for a discussion of the elimination of the “learned professions” exemption which previously shielded health professionals from federal antitrust law.

4 The legislation which mandated PSRO review is codified at 42 U.S.C. §§ 1320-1322 (1976).

5 See Pircno v. New York State Chiropractic Ass’n, 650 F.2d 387, 388 (2d Cir.), cert, granted sub norn. Union Labor Life Ins. Co. v. Pireno, 102 S. Ct. 595 (1981).

6 See infra notes 30*33 and accompanying text.

7 15 U.S.C. §§ 1011-1015 (1976).

8 This Note limits the antitrust discussion to analysis of price fixing, which the author believes to be the most likely violation. Other possible antitrust violations such as monopolization and boycott are left for future examination.

9 15 U.S.C. §§ 1-7 (1976).

10 See infra notes 34-98 and accompanying text.

11 See inffra notes 99*186 and accompanying text.

12 Id.

13 The details of the workings of chiropractic PRCs vary somewhat among the states. Most PRCs, however, have members who were trained by the American Chiropractors Association (ACA) and therefore have similar modes of operation. The ACA no longe trains chiropractors in peer review because of antitrust legislation surrounding peer review. Telephone interview with Dr. Raymond T. Kirn, Director of Insurance Relations, American Chiropractors Association (Apr. 9, 1982).

14 Telephone interview with Office of Massachusetts Commissioner of Insurance (Feb. 11, 1982).

15 Telephone interview with Dr. Mark Holland, Director, New York State Chiropractic Association (Feb. 11, 1982).

16 Id. See also Pireno v. New York State Chiropractic Ass'n, 650 F.2d 387, 388 (2d Cir.), cert, granted sub nom. Union Labor Life Ins. Co. v. Pireno, 102 S. Ct. 595 (1981).

17 E.g., Union Labor Life Insurance Co. of New York and Metropolitan Life Insurance Co. of Virginia, the respective defendants in Pireno, 650 F.2d 387 (2d Cir.), cert, granted sub nom. Union Labor Life Ins. Co. v. Pireno, 102 S. Ct. 595 (1981), and Bartholomew v. Virginia Chiropractors Ass'n, 612 F.2d 812 (4th Cir. 1979), cert, denied, 446 U.S. 938 (1980) utilized PRCs after recognizing that doctors were unable to knowledgeably evaluate chiropractic procedures.

18 Telephone interview with Dr. Mark Holland, supra note 15.

19 Id.

20 Id.

21 Id.

22 pireno v. New York State Chiropractic Ass'n, 650 F.2d 387, 388 (2d Cir.), cert, granted sub nom. Union Labor Life Ins. Co. v. Pireno, 102 S. Ct. 595 (1981).

23 Id.

24 The chart is compiled from a statistically significant number of responses to the annual survey. Telephone interview with I)r. Mark Holland, supra note 15.

25 This discussion does not account for the degree of deviation from the average ice which PRCs allow in calculating the maximum fee recommendation. The author was unable to learn what standard deviation applied.

26 Each of the ten members of the PRC individually evaluates the reasonableness of the claims, after which the group reaches a consensus. Telephone interview with I)r. Mark Holland, supra note 15.

27 By contrast, when individual chiropractors are contracted to evaluate claims, the chiropractor personally examines the insured. Telephone interview with Dr. Mark Holland, supra note 15.

28 Although the PRC docs not bring the fact of peer review to the attention of the insured, certain insurers, such as Union Labor Life, will advise the insured that the claim is being denied on the basis of a PRC evaluation. Telephone interview with Dr. Mark Holland, supra note 15. Plaintiff in Pircno alleged that the insurance company had sent copies of the PRC's opinion letters to insured patients, but defendants denied the allegations. Pircnot 650 K-2d 387. 389 (2d Cir.), cert, granted sub nom. Union Labor Life Ins. Co. v. Pireno, 102 S. Ct. 595 (1981).

29 Although PRCs have no authority to discipline providers for charging fees in excess of PRC recommendations, when a PRC observes a gross violation of a state health are code, it mi) report such violations to the Board of Medical Examiners Therefore PRCs aid in quality control although they lack disciplinary powers Telephone interview with Dr. Raymond Kirn, tupta note IS.

30 612 F.2d 812 (4th C"r. 1979). ceri. dented, 446 US. 938 (1980).

31 650 F.2d 387 (2d Cir.). rerl, granted tub nom. Union Ijbor Life Int. Co. v. Pirervo.

32 102 S. Cl. S9S (1981).

33 Brief for Appellee at 7, Pireno v. New* York State Chiropractic An n. 650 F,2d S87 (2d Cir. 1981). The section of the brief entitled ‘ Additional Factual Background*’ provides mine insight into an ongoing battle between the two different factions of chiropractors that practice. According to NYSCA, Pirene" is a mem her of ‘Clinic Masters’ which Is an organization which trains chiropractors on how to manage their practices so as to “extract ter) high fees from patients ’NYSCA” on the other hand, is composed of “old fashioned traditionalists” who reject this newer method of practice management. Petition for certiorari 6*7. Bartholomew v. Virginia Chiropractors Ass n. 612 F.2d 812 (4th Cir. 1979).

34 The McCarran-Ferguson Act reads:

[Sec. I) Congress hereby declares that the continued regulation and taxation by the several States of the business of insurance is in the public interest, and that silence on the part of the Congress shall not be construed to impose any barrier to the regulation or taxation of such business by the several States.

Sec. 2(a) The business of insurance, and every person engaged therein, shall be subject to the laws of the several States which relate to the regulation or taxation of such business.

(b) No Act of Congress shall be construed to invalidate, impair, or supercede any law enactcd by an) State for the purpose of regulating the business of Insurance, or which imposes a lee or tax upon such business, unless such Act specifically relates to the business of inturance: Provided, That after June 30, 1948. the Act of July 2, 1890, as amended, knot*n as the Sherman Act, and the Act of September 26. 1914, known as the Federal Trade Commission Act, and the Act of October IS, 1914, as amended, known as the Clacton Act. as amended, shall be applicable to the business of insurance to the extent that such business is not regulated by State law.

Sec. 3(a) Until June 50, 1918, the Act of July 2, 1890. as amended, known as the Sherman Act. and the Act of October IS, 1914, as amended, known as the Clayton Act, and the Act of September 26, 1914. known as the Federal Trade Commission Act and the Act of Jut"c 19. 1936. kno^n as the Robinson Patman Anti-Discrimination Act. shall not apply to the business of insurance or to acts in the conduct thereof.

(b) Nothing contained in this chapter shall render the said Sherman Act inapplicable to an) agreement to boycott, coerce, or intimidate, or act of boycott, coercion, or intimidation.

35 U.S.C. § 1011-1015 (1976).

36 The Fourth Circuit has recognized the exemption and the Supreme Court has denied certiorari. Bartholomew, 612 F.2d 812, 816-17 (4th Cir. 1979), cert. denied, 446 U.S. 958 (1980). The Second Circuit has denied the exemption and defendants’ petition has hern granted by the Supreme Court. Pireno, 650 F.2d 387, 395 (2d Cir.), cert. granted sub nom. Union I^abor Life Ins. Co. v. Pireno, 102 S. Ct. 595 (1981). The Virginia Chiropractors Association no longer operates PRCs. Although it succecdcd in claiming the McCarran Act exemption, fear of further litigation and the accompanying expenses has caused the Virginia Chiropractors Association to discontinue its PRCs. Peer review of chiropractic services In Virginia is now accomplished through independent contractors which aid insurers in evaluating the necessity of the services provided by chiropractors; fee recommendations are no longer part of the peer review process. Telephone interview with Dr. Richard S. Wright, President, Virginia Chiropractors Association (Apr. 9, 1981).

37 The business of insurance is exempt only to the extent that it is regulated by state law and is not engaging in boycott, coercion or intimidation. 15 U.S.C. §§ 1012-1013 (1976). For a discussion of the role of the McCarran-Ferguson Act in the structure of federalism see Comment, Group Life and Health Insurance Co. v. Royal Drug Co.: The McCarran Fergtaon Act and Health Service Plans, 5 Am. J.L. SC Mfd. 393, 395-98 (1980).

38 Bartholomew v. Virginia Chiropractors Ass'n, 612 F.2d 812, 814-15 (4th Cir. 1979), cert, denied, 446 U.S. 938 (1980); Pireno, 650 F.2d 387, 389 (2d Cir.), cert. granted sub nom. Union Labor Life Ins. Co. v. Pireno, 102 S. Ct. 595 (1981).

39 90 CONC. Rrc. A4403 08 (1944). “[Unrestricted competition in the insurance business is not in the public interest …. [TJhcre must be reasonable uniformity in the rales … by cooperation in obtaining statistical data and in the promulgation of rates based thereon,*’ 90 Cove. Rrc. A4405 (1944) (Recommendations of the Subcommittee on Federal Legislation).

40 322 U.5. 533 (1944). teh'g denied, 323 U.S. 811 (1945).

41 Id. See generally, Hanson, 77ie Interplay of the Regimes of Antitrust, Competition and State Insurance Regulation on the Business of Insurance, 28 DRAKE L. Rf.v. 767 (1979). Until this point the insurance industry was regulated by the states and therefore was not subject to federal antitrust law.

42 Group life & Health Ins. Co. v. Royal Drug Co.. 440 U.S. 205, 217-18, rch’g denied, 441 VS, 917 (1979).

43 SEUA A, 322 VS. 533 (19*14), reh’g denied, 323 U.S. 811 (1945). This is evidenced by the fact that after SEUA, but prior to the passage of the McCarran Act, legislation that would have proscribed all application of federal antitrust regulation of insurance was rejected. Group Life k Health Ins. Co. v. Royal Drug Co., 440 115. 205 , 219 nn.20-21, Re’g denied, 441 US, 917 (1979) (citing 90 Cong. Rec. 6565 (19(4) and 91 Conc. Rev. 1087 (1945) (remarks of Rep. Hancock). See aim Weller, The McCartan-fergmon Acts Antitrust Exemption for Insurance: language, History and Policy, 1978 Duke L.J. 587, 588-608.

44 15 LLS.C. 1012-1013 (1976).

45 Id.

46 Traveler’s Ins. Co, v. Blue Cross of Western Pa., 481 F.2d 80 (3d Ctr.), cert, denied, 414 U.S. 1093 (1973).

47 Anderson v. Medical Scrv. of D.C., 197G-1 Trade Gas. (CCH) f 60.884 (E.D.Va. 1976), aff, 551 F.2d 30-1 (4th Cir. 1977). The medical service plan distinguished between participating providers, who agreed to keep fees within the usual, customary and reasonable amount, and non-participating providers, who did not so agree. Insureds were reimbursed directly for the services of non-participating providers and remained liable for any excess above the allotted amount. Fees charged by participating providers were paid directly to the providers.

48 Manasen v. Cal. Dental Services, 424 F. .Supp. 657 (N.D. Cal. 1976) (claw action by dentists not participating in the pre paid dental plan challenged the plan as a conspiracy to fix fees and as a boycott of non-participating dentists).

49 "440 US. 205, reh*g denied, 441 VS, 917 (1979).

50 The challenged agreement entitled the insured to obtain prescription drugs from participating pharmacies at a cost of two dollars per prescription. Customers of non* participating pharmacies, on the other hand, paid the full price for the drug and were reimbursed for 75 percent of the difference between the full price and two dollars. Nonparticipating pharmacies charged that Blue Shield was violating § 1 of the Sherman Act by fixing the retail price of drugs and boycotting certain pharmacies.

51 For a more complete history of the McCarran-Ferguson Act exemption see Weller, supra note 41. See also Borsody, , The Antitrust Laws and the Health Industry, 12 Akron L. Rev. 417, 440-477 (1979)Google Scholar.

52 Royal Drug, 440 U.S. at 210-11.

53 393 U.S. 453, 459-460 (1969). In this case, the Supreme Court refused to apply the McCarran-Ferguson Act to an insurance company. The Court,held that the insurance company was subject to regulation by the SEC regardless of the applicable state law in the area because it was not part of the “business of insurance.”

54 440 U.S. at 211.

55 Supra note 37 and accompanying text. Contra Note, Insurance Provider Agreements Subject to Antitrust Scrutiny, 17 HOUSTON L. Rev. 643-59 (1980).

56 440 U.S. at 211, 215.

57 Id. at 211.

58 Id.at 215.

59 “Whatever the exact scope of the statutory term, it is clear where the focus was— it was on the relationship between the insurance company and the policyholder” Id. at 216 (quoting SEC v. National Securities, 393 U.S. 453, 460 (1969)).

60 440 U.S. at 231. Infra notes 75-78 and accompanying text.

61 440 U.S. at 231-33.

62 Supra note 56 and accompanying text.

63 Note, The Definition of “Business of Insurance” Under the McCarran*Fergumn Act After Royal Drug" 80 Coi.um. L. Rev. 1475, 1478-79 (1980). This author agTces that any policy limiting reimbursement to acustomary and reasonable“ amount is itself outside the coverage of the business of insurance regardless of the activity of peer review committees.

64 See id. at 1487.

65 See Supra notes 22-23 and accompanying text.

66 440 VS, at 211-15.

67 Supra notes 22-26 and accompanying text.

68 The practice of establishing a usual and customary amount through an annual survey of providers may have the tendency to raise provider fees in the long run. Since the usual and customary amount is based on the average fee charged by providers, a built-in tendency exist* to inflate fees. For example, if the fee charged for a procedure by 90% of providers surveyed was $20, and Dr. X charged $10 for the same procedure the average fee for the following year will tie $22. Thus, providers in the next year could charge $22 and still have their patients fully covered by insurance. The temptation to raise the usual and customary amount through excessive charges reduced the procompetitive input of peer review. But see supra note 25.

69 See supra note 67.

70 See supra note 57 and accompanying text.

71 See supra note 37 and accompanying text.

72 See supra note 22 and accompanying text.

73 See supra note 54 and accompanying text.

74 See supra note 57 and accompanying text.

75 See Pireno, 650 K.2d at 391.

76 Royal Drug, 110 U.S. at 231 and cases citcd therein.

77 410 U.S. at 231.

78 Id.

79 Entities exempt under other antitrust exemptions have sacrificed their exemptions by performing their otherwise exempt activities in conjunction with non-exempt entities. See Foremost Int‘1 Tours, Inc. v. Qantas Airways Ltd., 525 F.2d 281. 285-86 (9th Cir. 1975), cert, denied, 429 U.S. 816 (1976) (an airline ordinarily exempt from antitrust scrutiny by a Civil Aeronautics Board regulation lost its immunity by adversely affecting competition outside the airline industry); United Mine Workers v. Pennington, 381 U.S. 657, 665-66 (1965) (exempt union that joined with a non-labor organization was subject to antitrust scrutiny).

80 618 F.2d 1140 (5th Cir. 1980).

81 Id. at 1145.

82 Id.

83 624 F.2d 476 (4th Cir. 1980).

84 Id. at 483.

85 Id. at 480. 484.

86 Pireno v. New York State Chiropractic Ass'n, 650 F.2d 812 (2d Cir.), cert. granted sub nom. Union Labor Life Ins. Co. v. Pireno, 102 S. Ct. 595 (1981).

87 612 F .2d 812 (4th Cir. 1979). cert, denied, 446 U.S. 938 (1980).

88 See infra notes 99-113 and accompanying text.

89 See supra notes I -29 and accompanying text for a discussion of the PRCs working under the auspices of the New York State Chiropractic Association.

90 Pireno, 650 F .2d at 392.

91 Id. at 394.

92 Id. at 394-95.

93 Id. at 394.

94 Id. at 395.

95 Id.

96 The plaintiffs in Bartholomew alleged that the PRCs and insurers were engaged in a conspiracy to fix prices and to thereby monopolize the chiropractic practice in Virginia.

It was further alleged that by fixing a maximum level of reimbursement per treatment the defendants were boycotting the chiropractors whose charges exceeded that level and encouraging patients to do the same. Bartholomew, 612 F.2d at 817.

97 Id. at 817 (the court stated: “For an especially clarifying discourse of this and the related issues see generally Pireno v. Sew York Chiropractic Ass'n.. No. 76-4309 (S.D.N.Y. March 15. 1979)/’).

98 Id.

99 Bartholomew 612 F.2d at 817. The Bartholomew court also held that peer review did not amount to “boycott, coercion or intimidation” so as to be subject to antitrust scrutiny even though part of the business of insurance. The court did not address the issue of whether there was sufficient state regulation for immunity under the McCarran Act; plaintiffs had conceded state regulation of insurance companies.

100 U.S.C. §§ 1-7 (1976).

101 15 U.S.C. § 1 (1976).

102 The heart of our national economic policy long has been faith in the value of competition.” Standard Oil Co. v. FTC, 340 U.S. 231, 248 (1951). See also United States v. Socony Vacuum Oil Co.. 310 U.S. 150, 221-226 (1940).

103 National Soc'y of Professional Eng℉rs v. United States, 435 U.S. 679, 695 (1978); Standard Oil Co. v. FTC, 340 U.S. 231, 248 (1951); United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 185 (1940).

104 Standard Oil Co. of N.J. v. United States, 221 U.S. 1, 59-60 (1911).

105 Id.

106 See infra note 115 and accompanying text.

107 United States v. Socony-Vacuum Oil Co., 310 U.S, at 221*22. “Under the Sherman Act a combination formed for the purpose and with the effect of raising, depressing, fixing, pegging or stabilizing the price of a commodity in interstate commerce is illegal per se.“ Id. at 223. “[A] conspiracy- to fix prices violates § I of the Act though … it is not established that the conspirators had the means available for accomplishment of their objective… Id. at 225 n.59.

108 See Allison, , Ambiguous Price Fixing and the Sherman Act: Simplistic Ixtbels or Unavoidable Analysis. 16 Houston L. Rev. 761, 762 (1979)Google Scholar. See also Note, The Demise of the Per Se Rule in Indirect Price Fixing Cases: Catalano, Inc. v. Target Sales, Inc., 44 Alb. L. Rr.v. 871 (1980) in which the author forecasts that the per sc rule will be used only in the more direct forms of pricc fixing.

109 United States v. Socony-Vacuum Oil Co., 310 U.S. at 218, 220.

110 e.g., data dissemination. See L. Sli.uvan, supra note 2 at 265-74 (1977).

111 Id.

112 in See Board of Trade of City of Chicago v. United States, 246 U.S. 231, 238 (1918) for a statement of the rule of reason.

113 id.

114 id.

115 L. Sullivan, supra note 2 at 196. ne Id. at 192-98.

116 405 U.S. 596 (1972).

117 Id. at 607-08.

118 441 VS. 1 (1979).

119 Id. at 4-6.

120 Id. at 9.

121 Id. at 9-10.

122 Id.

123 Id. at 19-23.

124 Id. at 23 21.

125 Id.

126 Id. at 10-13. The Court noted that although a consent decree docs not immunize defendants from antitrust liability, or in itself preclude the application of per se liability, the fact that the parties were operating under Justice Department supervision was a factor to be considered in the analysis.

127 See infra note 129.

128 The “agreement” required by § 1 of the Sherman Act is established by the fee which peer review committees pay for their evaluation services. Supra note 13. Furthermore, members of the peer review committee, a group of providers who belong to one trade association, have agreed on a usual and customary fee schedule. See Albrecht v. Herald Co., 390 U.S. 145. 149*50 (1968). That the fee schedules relied upon by PRCs are compiled by the provider trade associations might itself establish agreement.

129 “Horizontal” agreement Tcfers to agreement among competitors at the same level, for example agreements between two or more manufacturers, or two or more retailers, as opposed to agreements between a manufacturer and a retailer which arc “vertical” agreements.

130 See Arizona v. Maricopa County Medical Soc*y, 613 F.2d 553, 556 (9th Cir. 1980), cert. granted, 452 U.S. 913 (1981). See atso Note, Antitrust in Heatth Care—Arizona v. Maricopa County Medical Society, 3 W. Nrw Esc. I” Ri:v. 477 (1981) (arguing that the Maricopa court incorrcctly applied the Broadcast Music rationale).

131 See generally Rorsody, The Antitrust Imws and the Health Industry, 12 Akron L. Rev. 417 (1979); RosofI, Antitrust Ixtws and the Health Care Industry: Sew Warriors Into an Old Battle, 23 St. Louis U.L.J. 416 (1979).

132 421 U-S. 773 (1975).

133 See generally WtMrt, Role and Statxts of the Professional Society, 1979 Health Law Update (Jonathan W. Skiha, ed.) 153.

134 421 U"S. at 786-87. The court noted the artificiality of the distinction between professions and businesses, which in reality overlap, especially in the area of fee control.

135 Goldfarb, 421 U.S. at 788 n.17 and Professional Engineers, 435 U-S. at 696. Both eaves suggest that although there is no longer a learned profession exemption, the special nature of a profession may be considered in a rule of reason analysis.

136 Rosoff, supra note 131, at 447; Borsody, supra note 131, at 420.

137 Rosoff. supra note 131, at 447; Borsody. supra note 131, at 420.

138 Rosoff, supra note 131, at 447; Borsody, supra note 131, at 420.

139 Rosoff, supra note 131, at 447; Borsody, supra note 131, at 420.

140 See generally Sifcur & Osmond, Patikntiiood 69-79 (1979).

141 Horan &: Nord, Application of Antitrust Imw to the Health Care Delivery System, 9 Cum. I., Rev. 685 (1979); Kallstrom. Health Care Cost Control by Third Party Payors: Fee Schedules and the Sherman Act, 1978 DUKE L.J. 615, 647-49.

142 Broadcast Music. Inc. v. Columbia Broadcasting Syst., Inc., 441 U-S. 1 (1979). See supra notes 120-27 and accompanying text.

143 Broadcast Music. Inc. v. Columbia Broadcasting Syst., 441 U.S. 1, 20 (1979).

144 See supra notes 10-17 and accompanying text.

145 Insurers have been increasingly willing to reimburse insureds for the cost of chiro-practic services since the institution of peer review. Interview with Dr. Mark Holland supra note 15.

146 Kallstrom, supra note 141, at 649.

147 See supra note 29 and accompanying text.

148 See supra note 29 and accompanying text.

149 650 F.2d 387 (2d Cir.), cert. granted sub nom. Union Labor Life Ins. Co. v. Pireno, 102 S. Ct. 595 (1981).

150 Brief for Appellee at 38. Pireno v. New York State Chiropractic Ass'n, 650 F.2d 387 (2d Cir.), cert, granted sub nom. Union Labor Life Ins. Co. v. Pireno, 102 S. Ct. 595 (1981).

151 Id.

152 Id.

153 Id.

154 Id.

155 See supra note 126 and accompanying text.

156 Standard Oil Co. of N.J. v. United States, 221 U.S 1.58-60 (1911).

157 Hoard of Trade of Chicago v. United States, 2-16 U.S 231, 238 (1918).

158 Sec supra notes 136*11 and accompanying text.

159 473 F. Supp. 147 (S.D.N.Y. 1979).

160 A relative value guide (RVG) is a list of various medical procedures which describes the procedure and assigns to it an abstract number known as a “unit value.*’ Providers who wish to correlate their own fee with the fees charged by the majority of their peers may do so by dividing the unit value for a particular procedure into their usual fee for the procedure and arrive at a conversion factor. That factor can then be used to anivc at the fee charged by the majority for each of the other procedures listed. See United States v. American Soc*y of Anesthesiologists, 473 F. Supp. 147, 152 (S.D.N.Y. 1979).

161 Id. at 160-01.

162 Id. at 159-60.

163 Id. at 160.

164 Assuming, however, that surgeons are selected on the basis of cost, surgeons may in turn select anesthesiologists by cost and there might, therefore, be indirect competition among anesthesiologists. It is unlikely, however, that surgeons arc selected on the basis of cost. See supra notes 136-41 and accompanying text.

165 See supra notes 136-11 and accompanying text.

166 See supra notes 142-48 and accompanying text. See also Thompson. Antitrust and the Health care Provide 33-36 (1979) in which the author suggests that antitrust law can be applied so as to allow for the peculiarities of the health care market.

167 L., Sullivan. supra note 2, at 187.

168 Id. at 186 87. See National Soc'y of Professional F.ng'is v. United Slates, 435 U.S. 679, 692-95 (1978). The promotion of public safety was found not to be a valid justification.

169 L., Sullivan. supra, supta note 2, at 186-87.

170 See supra note 15 and accompanying text.

171 Interview with Dr. Mark Holland, supra note 15.

172 id.

173 To the extent that this recognition of new services increases the class of providers, peer re\iew further enhances competition.

174 See supra note 22 and accompanying text.

175 R. Posnfr & F. Easterbrook, Antitrust Cases,, Economic Notes and Other Matcrims 347 (2d ed. 1981).

176 id.

177 id.

178 id. at 347-48.

179 E.g., United States v. Container Corp. of America, 393 U.S. 333 (1969).

180 See supra notes 1-18 and accompanying text.

181 See supra notes 28-29 and accompanying text.

182 421 U.S. 773 (1975).

183 See supra notes 28-29 and accompanying text.

184 See supra note 28.

185 473 F. Supp. 147 (S.D.N.Y. 1979).

186 Id. at 160.