The ability of private law to shape health care and public health is evident in the effects that tort law had on improving patient safety in anesthesiology and curtailing the marketing of tobacco products. One would think of health care costs as a fertile area for litigation, for many reasons: widespread provider of opportunism that invites legal challenges under a number of theories; the considerable resources that payers and health policy philanthropies have available to invest in litigation strategies; and the high stakes involved in a large industry that is unusually aggressive in the chase for consumer and health insurance dollars. One can find numerous examples of parties pursuing legal action to lower costs, often successfully. But what is striking about these cases is how isolated they are – largely individual, uncoordinated efforts – and how they have failed to meaningfully curtail provider excesses. Most tellingly, the problem of balance billing by out-of-network physicians never gave rise to significant litigation and was resolved by Congressional action that, ironically, incorporated existing common law doctrines.

This paper reviews instances of provider opportunism to obtain higher prices, including contriving to bill “charges” rather than accepting market prices for services; “upcoding” for services by overstating the amount of work involved; and consolidation to achieve market concentration and power vis-a-vis payers. It then discusses available legal theories to remedy such conduct and inventories efforts to invoke them. Finally, it applies political science theories to analyze potential explanations for the dearth of litigation in this area.