The Provider-Monopoly Problem in Health Care

Barak D. Richman, Duke Law School
Clark C. Havighurst, Duke Law School

Document Type Article


Although federal judges have resisted giving due effect to standard antitrust principles in scrutinizing mergers of nonprofit hospitals, the presence of health insurance makes it especially important to oppose monopoly in health services markets. U.S.-style health insurance gives monopolist providers extraordinary pricing freedom, thus exacerbating monopoly’s usual redistributive effects. Significant allocative inefficiencies - albeit not the kind generally associated with monopoly - also result when the monopolist is a nonprofit hospital. Because it is probably impossible to undo past hospital mergers creating undue market power, we suggest some alternative remedies. One is to apply antitrust rules against "tying" arrangements so that purchasers can more easily frustrate hospitals' profit-enhancing practice of overcharging for large bundles of services rather than separately exploiting each monopoly they possess. Another is to use antitrust or regulatory rules to prohibit anticompetitive contract clauses between providers and insurers, such as "anti-steering" or "most favored nation" clauses. These tools might help rectify the serious problem of provider market power that now imposes unsustainable costs onto our health care system.