I have several concerns about the American College of Physicians' policy statement on antitrust matters [1].

The policy position begins with the assertion that the health care industry has been treated the same as every other industry, even though physicians are restricted to 20% or 30% of market share, depending on whether or not contracts are exclusive, exceptions notwithstanding. The presentation, in attempting to balance its discussion of pros and cons, fails to convey just how sharp and great are the differences between these two camps. For example, the American Medical Association has antitrust reform as one of its highest priorities, and the members of the House of Delegates are extremely passionate and strong in their feelings on this matter. In muting the intensity of these feelings, the College strikes a position that is deeply divisive in the house of medicine at a time when unity is of fundamental importance. Little attention is given to how the antitrust chill has almost frozen out peer review in medical communities so that the only such venue is within the managed care organization or a formal physician-run organization mechanism. The College seems to rely on the good will and flexibility of the bureaucracy in modifying its rules and regulations at its own whim or after studying the impact on physicians affected by a rapidly developing marketplace. Such a plan would mean that the antitrust wounds of physicians, finally discovered by such a monitoring process, would be several years old and healed by secondary intention.

Antitrust laws prohibit "physician activities that suggest joint establishment of fees" but also proscribe "threats of concerted refusals to deal." What would happen if a medical society's leadership used every tactic possible to encourage members not to sign a third-party contract that had an unethical and immoral gag rule? Such collusion would probably be sanctioned severely by per se ruling. The Marshfield Clinic case is cited as a victory for physicians operating in a rural marketplace. The cost of that protracted litigation, however, was not mentioned; it was fearsome.

My main final concern with the antitrust policy is its logical extension into the mode of practice in the medical marketplace. It will lead, for safety's sake, to a recommendation that the health care system of the 21st century be fully capitated. In that setting, antitrust risk is not a problem, although redefining what we mean by professionalism and autonomy would be an important task.