Abstract
This Article considers whether the Supreme Court's decision in Eastman Kodak Co. v. Image Technical Services offers a viable opportunity for plaintiffs to successfully bring unilateral refusal-todeal actions in the health care industry under section 2 of the Sherman Act. Specifically, I will address hospitals or managed care entities' horizontal refusals to deal with health care providers such as physicians or other alternatively credentialed state-licensed providers of medical services. At present, refusal-to-deal actions have been effectively limited to actions under section 1 of the Sherman Act4 because the conventional economic wisdom is that hospitals and managed care entities operate in highly competitive markets. As early as 1919, for example, the Supreme Court in United States v. Colgate & Co., stated that "[i]n the absence of any purpose to create or maintain a monopoly, the [Sherman A]ct does not restrict the long recognized right of [a] trader or manufacturer engaged in an entirely private business, freely to exercise his own independent discretion as to parties with whom he will deal." It follows that a successful plaintiff in a refusal-to-deal case must have evidence either of conspiracy (section 1 actions) or market power (section 2 actions).
Recommended Citation
Glick, Mark A.
(1995)
"Unilateral Refusals to Deal in the Health
Care Industry After Eastman Kodak Co. v.
Image Technical Services,"
Utah Law Review: Vol. 1995:
No.
2, Article 10.
Available at:
https://dc.law.utah.edu/ulr/vol1995/iss2/10