Online ordering is currently unavailable due to technical issues. We apologise for any delays responding to customers while we resolve this. For further updates please visit our website: https://www.cambridge.org/news-and-insights/technical-incident
We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
Published online by Cambridge University Press: 24 February 2021
In a two-part article entitled “Private Credentialing of Health Care Personnel: An Antitrust Perspective,” Clark C. Havighurst and Nancy ‘M. P. King purport to set forth “a new and previously unexplored agenda for antitrust enforcement, one that the Authors believe will increase the quantity and quality of information available to consumers … .” Having concluded in Part One of the Article that antitrust courts and regulators should exercise only limited supervision over private credentialing in the health care field, in large part because of their “important procompetitive purpose of supplying useful information and advice to consumers,” the Authors reverse field and seek to use the antitrust laws to call into question the activities and structure of leading medical specialty boards, the Liasion Council on Medical Education, various accrediting, certifying and credentialing bodies in medicine and the allied health professions, and the Joint Commission on Accreditation of Hospitals (JCAH).
The Authors, private practitioners, and other partners in the law firm of Kirkland & Ellis, collectively have several decades of experience representing various organizations in the health care field.
1 Havighurst & King, Private Credentialing of Health Care Personnel: An Antitrust Perspective—Part One, 9 Am. J.L. & Med. 131 (1983) [hereinafter cited as Part One]; Havighurst, & King, , Private Credentialing of Health Care Personnel: An Antitrust Perspective—Part Two, 9 Am. J.L. & Med. 263 (1983)Google Scholar [hereinafter cited as Part Two].
2 Part Two, supra note 1, at 263.
3 Id. at 264.
4 Id. at 265.
5 Even the casual reader will note the proliferation of citations in the Article to previous writings of Professor Havighurst, who has been a prolific and persistent critic of the health care field generally. In all, there appear 31 cites to 11 different prior expressions of Havighurst's opinion.
6 Part Two, supra note 1, at 264.
7 Id. at 327. No basis exists in this regard for distinguishing accrediting from, for example, credentialing, as the Authors conceded. As the Authors state: “Properly understood, therefore, private credentialing is nothing more than an expression of opinion.” Part One, supra note 1, at 133.
8 Part Two, supra note 1, at 272-73.
9 The Article conceded as much in pointing out, with respect to the five member organizations of the JCAH, that “there are a few, if any, equally capable entities and only a handful of other authoritative sources of information and opinion.” Id. at 323.
10 Part One, supra note 1, at 152.
11 Part Two, supra note 1, at 287.
12 The Article finds such objectivity antithetical, concluding: “It should be obvious that cost information and data permitting the skills of individual professionals to be judged on the basis of actual outcomes of care—rather than on the basis of educational hurdles surmounted and examinations passed—are the ultimate keys to matching individuals efficiently with the professional tasks to be performed.” Part Two, supra note 1, at 294. While an argument can be made for evaluating the outcomes of care, that is not a function that can currently be effectively performed by private credentialors, especially “gateway” bodies. The relationship of cost information to the skills of the professional is more difficult to see.
13 Part One, supra note 1, at 135.
14 Part Two, supra note 1, at 287.
15 Id. at 299.
16 National Soc'y of Professional Eng'rs v. United States, 435 U.S. 679, 695 (1978).
17 Part Two, supra note 1, at 307.
18 Id. at 269.
19 Id. 274-75 n.30. The Authors refer to PPOs as “consumer organizations.“
20 See, e.g., Kreuzer v. American Academy of Periodontology, 558 F. Supp. 683 (D.D.C. 1983); Nara v. American Dental Ass'n, 526 F. Supp. 452 (W.D. Mich. 1981); Paralegal Institute, Inc. v. American Bar Ass'n, 475 F. Supp. 1123 (E.D.N.Y. 1979).
21 See, e.g., American Soc'y of Mechanical Eng'rs v. Hydrolevel Corp., 456 U.S. 556 (1982).
22 Part One, supra note 1, at 135. Though seeking to minimize the competitive alternative to specialty certification, the Article states:
consumers seeking health care in a given field generally have as alternatives to board-certified specialists only uncertified but self-proclaimed specialists, a few specialists certified by non-ABMS boards, specialists certified in other fields, and … general practitioners.
Id. at 145. As early as 1973, more than 83% of all doctors were self-proclaimed specialists. Id. at 139-40 n.21.
23 Id. at 155.
24 Part Two, supra note 1, at 269.
25 Part One, supra note 1, at 145 n.44.
26 Part Two, supra note 1, at 313.
27 Id. at 272.
28 See Part One, supra note 1, at 139 nn. 18 & 19.
29 Part Two, supra note 1, at 283.
30 Id. at 295.
31 Id. at 307.
32 Id. at 281.
33 Id. at 263.
34 Id. at 266.
35 Id. at 267.
36 Id. at 276.
37 Part Two, supra note 1, at 278.
38 Id. at 278. Citing Federal Trade Commission and Supreme Court reluctance to embrace such controversial advertising, the Article bootstraps a further argument for a variety of competing credentialing systems to provide consumers with “guides in finding a provider with the desired mix of attributes.” Id. at 281.
39 The Article notes, however, that if this were the case, eventually competition from uncertified practitioners would become a significant check on market power, thus obviating the need for structural change. Id. at 305-06 & 306 n.124.
40 Id. at 300-08.
41 Part One, supra note 1, at 143 n.34.
42 Part Two, supra note 1, at 310.
43 Id. at 313.
44 Id. at 311 & n.135.
45 Id. at 314.
46 Part One, supra note 1, at 173 n.137.
47 Id. at 173.
