Making the Competition for Health Care Dollars a Fair Fight : The Role of Antitrust Law in Improving Efficiency in the U.S. Health Care Market

In an effort to slow the ever-increasing costs of health care in the United States, the U.S. health policy community has highlighted price transparency as one strategy to give consumers more control over their health care choices. But to empower consumers requires more than just making price information available. In certain markets throughout the country, dominant firms have built up significant market power, which gives them the leverage to effectively neuter any increase in consumer power that would be gained from price transparency. Thus, before a price transparency initiative can be successful, something must be done to break down the market power that stands in the way of consumer choice. This article argues that antitrust law may provide the enforcement tool, or at least the theoretical approach, to facilitate a real effort toward price transparency. It describes several theories under which an antitrust lawsuit could be alleged, ranging from challenges against most-favored- nation clauses imposed by insurers to unlawful tying arrangements leveraged by dominant hospital networks, and it analyzes the legal and policy implications of these claims. In concluding, this article highlights the best options to address the problems of hidden prices and market inefficiencies in the health care system, arguing that even if antitrust law is not the solution, its rationale and policy justifications should nonetheless support policy efforts to work toward making the price of health care fair, visible, and efficient