Philadelphia Reflections

The musings of a physician who has served the community for over six decades

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Robert H.Bork Upsets A Century of Antitrust Law
According to the late Robert H. Bork, it ought to be fairly easy to identify price-fixing, because legitimate cases that harm the consumer by price manipulation aren't common, or may not even exist. With this, Bork convinced the judiciary to abandon a century of contrary belief while still a young law professor, thus establishing his own reputation with Ronald Reagan. He was appointed Solicitor General by Richard Nixon, unfortunately thus embroiling himself in Nixon's impeachment.

Legal Standing

The first obstacle for a lawsuit to jump is the right to use the courts. Although failure to demonstrate injury is one of the commonest ways to clear a court's calendar, insisting that the lawsuit must have some utility has become the very foundation for an impartial body of government to be free to settle disputes between citizens. There are other mechanisms, particularly the Courts of Equity of the young Republic, when there were many occasions when something was obviously wrong, but no statute covered the situation. By the Civil War, the Legislative Branch had more than supplied any deficiency of statute. The State of Delaware now has the only surviving Court of Equity, and "standing" now protects the courts from floods of useless lawsuits. However, that leads to the present Court System sometimes blocking a lawsuit, simply because the cause of the complaint is too broad, and requires special strategies to proceed. At the least, it requires a description of how an entire profession has been barred from its customary role, by an accident within the Judicial System.

History of the Matter. In the District Court of Maricopa County, the State of Arizona successfully sued the Maricopa Medical Society as antitrust for its prohibition from Medical Society Membership, any member who charged an indigent patient substantially greater than a fee published by The Society. This action was described as a per se violation of federal antitrust law, and without any trial of the facts was appealed successively to the U.S. Supreme Court. Two Arizona Justices recused themselves, and again without trial of the original summary judgment, was upheld by a 4-3 decision which still stands as National Law.

Subsequent Consequences. In Medical Circles, the Maricopa case is described as "dethronement of the doctors from control of the medical system" and "their replacement by non-physicians". For example, in 1948 the Nation's First Hospital (The Pennsylvania Hospital in Philadelphia) had two administrators, the Administrator and his secretary. Today, the same building which housed 200 patients in 1948 is entirely filled with puzzled administrators. The transition from physician control to something more legal has required insurance redesign which is still an expensive mess. After fifty years of trying, the pharmacy system is still cumbersome, the nursing schools have been upended, and the greatly enlarged billing system is still undecipherable. Meanwhile, physicians are quitting in their fifties because of the welter of unnecessary paperwork which keeps them from doing what they were trained to do, an occasional old nurse still defiantly wears a nursing cap, while cafeteria workers fumble at new-fangled uniforms. Everything has been unnecessarily changed, concealing the fact that it did not need to be changed. Meanwhile, those who took these supervisions in their stride are retiring early. Doctors used to marry their nurses; you now seldom hear of that. Salaries, which used to be zero, are now in six figures. Everybody complains; no one does what he was trained to do, especially the trustees. It once was the function of trustees to oversee funding requests of the doctors and get the money when needed; nowadays they rubberstamp the plans of administrators. There are simply hundreds of computers; no one reads their output. The disappearance of thirty common diseases (tuberculosis, syphilis, polio, rheumatic fever, etc.) is what keeps the system from collapsing. I received a salary of zero for four years, my grandson makes $53,000 a year of what is surely government money for much less medical work, much more red tape. If you don't believe these tales, I will be happy to call these people as witnesses. No doubt, witnesses for the other side will be happy to testify as well, and you can decide for yourself.

Repairing the damage. It took two thousand years to design the old system, but only fifty years to bring many hospitals to mergers, two medical schools to near collapse in Philadelphia alone. The Rs are fighting with the Ds over God knows what. All this mess cannot be repaired quickly, but it wouldn't hurt to get started. The Health Savings Account would be a better place to begin. Since remanding Maricopa for full trial would only be a beginning without much repair, it's little enough to ask as a beginning. The goal, well beyond my own sunset, would be to put the doctors back in charge and then waiting for fifty years. At least, stop getting in their road, since it is only fifty years since they stopped being the most admired profession on earth.

Originally published: Wednesday, July 10, 2019; most-recently modified: Wednesday, July 10, 2019