The 10 Biggest Legal Mistakes Physicians Make in Responding to Antitrust Complaints

By Phillip A. Nichols, Esq., and Colin H. Luke, Esq.

Executive Summary
Physicians are often dismayed by both the application and complexity of the federal antitrust laws that apply to their practices and to the multiphysician organizations in which they participate. Unfortunately, many physicians believe that antitrust laws pertain only to large corporations, and they often do not take the opportunity to acquaint themselves with antitrust laws and the increasing relevance of these laws to modern American health care. This lack of understanding often leads to unfortunate consequences.

Increasingly, physicians and physician practice groups, such as physician hospital organizations (PHOs) and independent practice associations (IPAs), are the target of enforcement actions brought by one of the two antitrust enforcement agencies–the Antitrust Division of the federal Department of Justice (DOJ) and the Federal Trade Commission (FTC)–as well as civil actions brought by private parties. In addition, antitrust issues are developing during negotiations between physicians and managed care organizations or other payers. The criminal nature of the antitrust offense, the heavy fines and sanctions that accompany conviction, and the possibility of treble damages for successful private litigants all suggest that physicians must pay careful attention to the antitrust laws and take any antitrust complaint seriously. The consequences of failing to do so are far too severe.


Mistake 1        Failing to Understand the Relevant Law

Mistake 2        Failing to Have and Abide by an Appropriate Document Retention Program

Mistake 3        Failing to Take Complaints Seriously

Mistake 4        Failing to Hire Antitrust Counsel in a Timely Manner

Mistake 5        “Creatively” Reconstructing the Facts Involved

Mistake 6        Talking to Government Enforcement Agencies or Plaintiff’s Representatives without Counsel

Mistake 7        Being Uncooperative with Enforcement Agencies

Mistake 8        Relying on Unsophisticated Market Definitions

Mistake 9        Engaging in Misuse of or Overreliance on the Peer Review Process

Mistake 10      Asserting a Defense Based on Policy Arguments That Physician’s Conduct Is Acceptable

The above has been excerpted from the SEAK text, The Biggest Legal Mistakes Physicians Make and How To Avoid Them