A Copernican View of Health Care Antitrust

Abstract

This article proposes and explores an analogy between Copernican astronomy and American health care. The transformation in scientific thought that led scholars to reject the geocentric (earth-centered) model of the known universe that had prevailed since ancient times in favor of a heliocentric (sun-centered) model is an apt metaphor for attempts to harmonize the incompletely theorized blend of competition and regulation that characterizes the contemporary health care system. One can analogize pre-competitive, physician-centered conceptions of health care to "Ptolemaic" models that would eventually be superseded by a "Copernican" health system centered on consumers as economic actors. Without a doubt, antitrust law played a significant role in this reconceptualization of medical markets, and in dismantling explicit barriers to price competition, but traditional antitrust law has significant trouble accommodating non-price considerations such as quality, choice, and innovation. Underlying a Copernican view of antitrust law is the desire to construct an integrated competition policy for health care markets. Therefore, a Copernican view requires both rethinking the application of antitrust principles in their traditional domain and revisualizing the relationship between antitrust law and other forms of public and self-regulation. This article examines a range of traditional market failures and subjects of longstanding antitrust concern - issues of agency, asymmetric information, choice and standardization, and the state action doctrine - as well as topics that go beyond traditional market failures -- public purchasing, medical knowledge, technology and political action, and problems relating to insurance, access to health services and social welfare. In conducting this analysis, we conceive of these phenomena as existing within a complicated web of social relations, with private and public actors facing each other across a dynamic interface, not a discrete boundary separating "market" and "nonmarket" institutions.