Do courts inconsistently apply antitrust laws when it comes to health care? Is health care afforded a “pass” that has not been afforded to other industries? These are questions to which Professor Spencer Waller answered with a strong “yes” in his article, How Much of Health Care Antitrust Is Really Antitrust?, and has offered several examples from case law on group boycotts, price-fixing schemes, and hospital industry consolidation to support his conclusion.

This Article offers a comment to Professor Waller’s observations: antitrust law has had, and should continue to have, an important role in protecting competition in health care markets. To explain lower court decisions that are seemingly inconsistent with case law in other industries, Professor Waller suggests that courts give health care providers a de facto exemption. But this Article offers a simpler explanation: antitrust cases often rest on facts specific to the allegation, the competitors involved, and the market at issue, and this is perhaps truer in health care than it is in other industries. It is not that courts have given health care providers a pass; it is simply that the complexities of the health care industry, coupled with the legal and economic analyses in these cases, often expose specific facts that can make a great difference to a given outcome. This Article revisits the examples offered by Professor Waller and offers an optimistic outlook for health care antitrust. Courts are armed with the ability to consider the many case-and time-specific facts that the health care industry presents, and antitrust enforcement in health care can continue to be effective in the future.

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