Re: Antitrust scrutiny of Lyme guidelines



On Jan 24, 6:16 pm, "pmerv" <p...@xxxxxxxxxx> wrote:


Thanks very much for this, Phyllis...it does help me some sort of
envision how this probably evolved. I can't say that it helps me change
my view of the situation, though.


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Antitrust scrutiny of Lyme guidelines
Disease treatment probe by state AG.

Although the IDSA says its guidelines are not mandatory, they have the
effect of becoming the standard of care in the medical community,
according to Lorraine Johnson, an attorney and executive director of
the California Lyme Disease Association.

Well, maybe...but see the problem there is that in order for these
Guidelines to become a medical standard of care...they have to be
voluntarily accepted and adopted...and that approval process seems to
me to take this out of the arena of anticompetitve behavior. That's
what could be argued to be a sort of intervening act. You're not
talking about non-thinking automatons here, but highly educated medical
professionals whom the law holds to high standards of responsibility.

You can't really monopolize opinion...and make it somehow into an
anticompetitive issue, in my opinion.

If a majority of medical professionals trust the IDSA's view...as
opposed to ILADS...well...that's their call, isn't it?

It's really all well and fine for someone to be engaged in "Creative
Law 101" and trying to come up with novel legal theories to try to
address fact situations...but Judges tend to not approve of that sort
of thing.

In other words, there really needs to be caselaw that would support
this type of application of antitrust principles to this situation. You
have to be able to show how the fact situation fits into applicable
antitrust law...and that is usually accomplished through citations of
prior decisions...precedent.

If you are out there arguing new thories of application...well, don't
bet the farm, you know...

And, someone is going to have to explain how the IDSA is a market
competitor...and you have to be able to have enough confidence in that
theory to argue it in Court.

I think people need to keep firmly in mind that it is arguably NOT the
"practice guidelines" that the insurance companies are going to use to
deny reimbursement for medical care...but the studies the Guidelines
refer to or quote.

And while that may seem like a trivial and semantic difference to some,
to me, it is not. In other words, even if the Guidelines were somehow
repealed, the case studies would still exist...and would still be used
to deny coverage.

So...realize that therein lies the REAL problem.


Douglas A. Hastings, partner in the health care and life sciences
practice in the Washington office of New York's Epstein Becker & Green,
said he could see how the guidelines could be viewed as
standard-setting, but, he added, an antitrust claim in this context is
novel.

"Antitrust requires independent parties conspiring to do certain things
to violate antitrust law and is anti-competitive," said Hastings.

YES!!!

"That is not something typically raised around development of practice
guidelines."

YES, again!!!

The IDSA's attorney, antitrust litigator Alvin Dunn, counsel to the
Washington office of Pillsbury Winthrop Shaw Pittman, said: "Our view
is this is not a matter for antitrust laws or courts generally, but
this is a medical question and one that doctors and scientists should
be addressing if there is an issue as to whether the guidelines are
proper."

I'm afraid that I have to agree, here.

The statements immediately above seem to me, at least, to represent the
mainstream interpretation...line of thinking and precedent and this is
why I am asking questions here.

I think most lawyers would ask the same questions...this application
certainly raises eyebrows. Blumenathal said earlier that it might be
considered anticompetitve "in a way".

To my limited experience, at least, Judges do not have time to listen
to complaints about things that might be "anticompetitve in a way".

In general terms, when you see someone suggesting sort of novel
approaches...and interpretations of law...uhhh....save your betting
money for the Super Bowl, if you know what I mean.

We'll see...we'll see...

.

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