Physician consensus is blurred, he believes, because of the limited information provided to them from the hospitals on possible impacts of the merger on their practices. Diefenbach believes the FTC will extend the process by requesting more information, during which time he hopes to poll physician opinion in the medical society and send fresh physician input to both the FTC and the state attorney general. At the state level, the attorney general's Antitrust Section determines whether to challenge hospital and insurance company mergers using guidelines drafted by the National Association of Attorneys General, in tandem with merger guidelines provided by the Department of Justice and the Federal Trade Commission, explains Donahue. The guidelines map out a procedure to determine if a merger would result in excessive market concentration, potential adverse competitive effects or barriers to entry by competitors into the market. The guidelines also help assess whether efficiencies claimed by the merging entities could be achieved through other means.
Different factors come to the forefront in different cases.
The Department tempers its assessment of a merged entity's market concentration with what customers, providers and competitors say about the merger's expected impacts, Donahue explains. It is possible, for example, for the Department to approve an anticompetitive merger if it is able to demonstrate benefits to consumers that outweigh the monopolistic concerns, or if it is likely to become more efficient and force others in the market to become more efficient, Donahue notes. The Attorney General's office did threaten to sue to block a proposed merger a few years ago between Geisinger and Bloomsburg Hospital, Donahue says. In that instance, Geisinger would not only have had a monopoly, but there was almost universal opposition expressed by employers and health insurers, notes Donahue. Physicians, especially if unified in consensual voice, could have a significant impact on the outcome of institutional mergers, but only if they choose to participate.