1 See generally Davis, , Competition and Contracting for Health Care Services in Ohio, 17 U. TOL. L. REV. 817 (1986)Google Scholar (government deregulation has served to change the health care market from an artificial to a real market where government planning has a lessened role and open market growth is possible).

2 The use of the word “consumers” is very general and represents the many parties that pay for health insurance, such as employers, individual subscribers and the state and federal governments through the Medicare and Medicaid programs.

3 See generally Legal and Ethical Issues in the Regulation of Health Care, 1987 BIOLAW (UPA) § 14, at 346-47 (July 1987) [hereinafter Issues in Regulation]. Many critics blame this blatant lack of cost and procedure consciousness on the procedure-based reimbursement system used by most third-party insurers for many years.

4 The HMO combines both health insurance and medical care. In general, the HMO provides health services to its members who pay a fixed annual or periodic fee. See B. FURROW, S.JOHNSON, T. JOST & R. SCHWARTZ, HEALTH LAW 392 (1987).

5 The PPO also combines health care financing and delivery, and provides services to its subscribers. However, unlike the HMO, the PPO does not require that its members utilize the preferred physicians in the plan; instead it gives incentives to its subscribers to use these physicians by covering a greater percentage of the cost of the medical service. See G. ANNAS, S. LAW, R. ROSENBLATT & K. WING, AMERICAN HEALTH LAW 775 (1990).

6 Issues in Regulation, supra note 3, at 346.

7 Sherman Anti-Trust Act 15 U.S.C.A. §§ 1-7 (West 1982 & Supp. 1991).

8 A per se offense of tying occurs when a seller will sell a particular product (the tying product) to the buyer only if the buyer agrees to purchase a second product (the tied product) as well. The seller must have market power in the tying product and must use this power to compel the sale of the tied product.

9 Group boycotts fall within section 1 of the Sherman Act which states in relevant part that “[e]very contract, combination in the form of trust or otherwise, or conspiracy in restraint of trade or commerce among the several States … is declared to be illegal.” 15 U.S.C.A. § 1. Monopolies fall within section 2 of the Sherman Act which prohibits monopolization, attempted monopolization and conspiracies to monopolize. Id. at § 2.

10 Northwest Medical Laboratories v. Blue Cross and Blue Shield, 97 Or. App. 74, 775 P.2d 863 (1989).

11 A closed-panel HMO involves salaried physicians practicing in HMO-owned facilities. Id. at 77, 775 P.2d at 865.

12 Id. at 86, 775 P.2d at 870.

13 Id. at 89, 775 P.2d at 872.

14 See, e.g., Arizona v. Maricopa County Medical Soc'y, 457 U.S. 332 (1982) (holding that an insurer-physician agreement fixing maximum prices was per se unlawful under the Sherman Act); Ocean State Physicians Health Plan, Inc. v. Blue Cross, 883 F.2d 1101 (1st Cir. 1989) (upholding a contract clause which prohibited doctors from lowering their prices for any patient without also lowering their prices for the insurer's subscribers), cert, denied, 110 S. Ct. 1473 (1990); Brillhart v. Mutual Medical Ins., Inc., 768 F.2d 196 (7th Cir. 1985) (holding that an insurer's agreement with physicians to provide services at predetermined prices did not constitute illegal price-fixing); Datillo v. Tuscan Gen. Hosp., 23 Ariz. App. 392, 533 P.2d 700 (1975) (upholding as reasonable a contract giving two doctors the exclusive right to provide a hospital's nuclear medicine services).

15 Northwest Medical, 97 Or. App. at 77, 775 P.2d at 865.

16 The only other type of health care plan in Portland at this time was the Kaiser Permante HMO, but this plan was available only to the employees of Kaiser Industries. Id. at 76, 775 P.2d at 864.

17 See supra text accompanying note 11.

18 Participating providers accept 80% of the normal fee and the remaining 20% is placed in the risk pool. The money collected in the HMO risk pool is distributed to the participating providers at the end of the fiscal year as long as the providers are able to control excess utilization of services successfully. Northwest Medical, 97 Or. App. at 78 n.5, 775 P.2d at 865 n.5.

19 Id. at 80, 775 P.2d at 866.

20 OR. REV. STAT. § 646.725 (1989).

21 See supra text accompanying note 9.

22 Northwest Medical, 97 Or. App. at 87 n.8, 775 P.2d at 871 n.8.

23 Id. at 89, 775 P.2d at 872.

24 OR. REV. STAT. § 646.715(2) (1989). This section provides that “the decisions of federal courts in the construction of federal law relating to the same subject shall be persuasive authority in the construction of [Oregon's ‘Little Sherman’ Act].“

25 Northwest Medical, 97 Or App. at 79, 775 P.2d at 866.

26 Brodley, , The Economic Goals of Antitrust: Efficiency, Consumer Welfare and Technological Progress, 62 N.Y.U. L. REV. 1020, 1021 (1987)Google Scholar.

27 Id. at 1044.

28 Vertical arrangements are those between a party competing on one level, here, Network, and a party on another level of competition, here, the preferred provider.

29 Krattenmaker, & Salop, , Anticompetitive Exclusion: Raising Rivals Costs To Achieve Power Over Price, 96 YALE L.J. 209, 215 (1986)Google Scholar.

30 E. GELLHORN, ANTITRUST LAW AND ECONOMICS IN A NUTSHELL, 215 (3d ed. 1986). Market share is now a necessary element in concluding that an exclusionary practice is a per se “group boycott” offense. See Northwest Wholesale Stationers v. Pacific Stationers and Printing Co., 472 U.S. 284, 296 (1985). For a discussion of how to determine market share, see infra text accompanying notes 72-80.

31 See, e.g., Barry v. Blue Cross, 805 F.2d 866 (9th Cir. 1986); Weiss v. York Hosp., 745 F.2d 786 (3d Cir. 1984), cert, denied, 470 U.S. 1060 (1985); Hassan v. Independent Practice Assoc, 698 F. Supp. 679 (E.D. Mich. 1988). See generally Gilmore, , The Antitrust Implications of Boycotts by Health Care Professionals, 14 AM. J.L. MED. 221, 231-34 (1988)Google Scholar (examining the boundaries imposed upon professional expression, focusing on antitrust implications of expression of professional and ethical beliefs).

32 L. SULLIVAN, HANDBOOK OF THE LAW OF ANTITRUST, 229-30 (1977).

33 Northwest Wholesale Stationers v. Pacific Stationers and Printing Co., 472 U.S. 284 (1985).

34 Id. at 284.

35 Id. at 291.

36 See generally Comment, Ball Memorial Hospital: Section 2 Sherman Act Analysis in the Alternative Health Care Delivery Market, 14 AM. J.L. MED. 250 (1988)Google Scholar (arguing that when courts decide whether to issue an injunction, their examination of alternative health care delivery markets must go beyond a conservative economic analysis).

37 Proger, , Problems of Access to Health Facilities and Equipment: New Competition for Limited Resources, 55 ANTITRUST L.J. 599, 614 (1986)Google Scholar.

38 Id. at 614.

39 Id. at 618.

40 Id.

41 1984 A.B.A. SEC. ANTITRUST L. REP. 110 (quoting Standard Oil Co. v. United States, 337 U.S. 293, 299 n.5 (1949)).

42 2 P. AREEDA & D. TURNER, ANTITRUST LAW t 517, at 331 (1978).

43 Hassan v. Independent Practice Assoc., 698 F. Supp. 679 (E.D. Mich. 1988).

44 Northwest Medical, 97 Or. App. at 79, 775 P.2d at 866.

45 Id.

46 OR. REV. STAT. ch. 438 (1989).

47 Northwest Medical, 97 Or. App. at 79, 775 P.2d at 866.

48 United States v. E.I. duPont de Nemours & Co., 351 U.S. 377 (1956).

49 Id. at 395.

50 Address by D. Yakoubian, Exclusive Contracts for Provider Services by Hospitals, Clinics, HMOs and PPOs, National Health Lawyers Association 3 (Jan. 1989).

51 du Pont, 351 U.S. at 400.

52 See id.

53 Brown Shoe v. United States, 370 U.S. 294 (1962).

54 id. at 325.

55 International Boxing Club, Inc. v. United States, 358 U.S. 242 (1959).

56 United States v. Empire Gas Corp., 537 F.2d 296 (8th Cir. 1976), cert, denied, 429 U.S. 1122 (1977).

57 United States v. Paramount Pictures, Inc., 334 U.S. 131 (1948).

58 Photovest Corp. v. Fotomat Corp., 606 F.2d 704 (7th Cir. 1979), cert, denied, 445 U.S. 917 (1980).

59 Northwest Medical, 97 Or. App. at 79, 775 P.2d at 866.

60 For a discussion of this change, see infra text accompanying notes 77-80.

61 Tampa Elec. Co. v. Nashville Coal Co., 365 U.S. 320, 327 (1961).

62 Brown Shoe v. United States, 370 U.S. 294, 336 (1962).

63 Id. at 336.

64 William Goldman Theatres, Inc. v. Loew's Inc., 150 F.2d 738 (3d Cir. 1945), cert, denied, 334 U.S. 811 (1948).

65 Defendants included Loew's, Inc.; Paramount Pictures, Inc.; R.K.O. Pictures, Inc.; Twentieth Century Fox Film Co.; and Warner Bros. Pictures, Inc. Id. at 741 n.6.

66 Id. at 741.

67 Id. at 744.

68 Id.

69 Northwest Medical, 97 Or. App. at 79, 775 P.2d at 866.

70 Id.

71 See, e.g., Marathon Oil Co. v. Mobil Corp., 669 F.2d 378 (6th Cir. 1981) (upholding definition of relevant geographic market as the state rather than as the nation as a whole), cert, denied, 455 U.S. 982 (1982); Hecht v. Pro-Football, 570 F.2d 982 (D.C. Cir. 1977) (relevant geographic market for pro-football defined as Washington, D.C, not as the nation as a whole), cert, denied, 436 U.S. 956 (1978); United States v. Empire Gas Co., 537 F.2d 296 (8th Cir. 1976) (defining relevant geographic market as 30 mile radius around defendant's bulk plant), cert, denied, 429 U.S. 1122 (1977).

72 L. SULLIVAN, supra note 32, at 33.

73 Id.

74 The court did not specify if it looked at the number of radiologists practicing in Portland or the number of Portland area physicians, regardless of specialty. Since the court did not specify radiologists in this discussion of market share computation, one may assume it was accounting for all Portland physicians.

75 Northwest Medical, 97 Or. App. at 80, 775 P.2d at 866.

76 Id. at 80, 775 P.2d at 866 (emphasis added).

77 Arizona v. Maricopa Co. Medical Soc'y, 457 U.S. 332, 352 (1982).

78 Hassan v. Independent Practice Assoc., 698 F. Supp. 679 (E.D. Mich. 1988).

79 Current Comment, Health Care Trends—U.S. Officials’ View, 7 Trade Reg. Rep. (CCH) ¶ 50,025 (Nov. 14, 1989) [hereinafter Health Care Trends].

80 E. GELLHORN, supra note 30, at 215-16.

81 See supra text accompanying notes 42-71.

82 McQuinn, , Boycott Law After Northwest Stationers, 57 ANTITRUST LJ. 839, 846 (1988)Google Scholar.

83 Federal Trade Comm'n v. Superior Court Trial Lawyers Ass'n, 110 S. Ct. 768 (1990).

84 Id. at 782.

85 Competitive effects increase competition and are considered desirable, while anticompetitive effects decrease competition and are considered undesirable.

86 Northwest Medical, 97 Or. App. at 87, 775 P.2d at 870.

87 Id. at 88, 775 P.2d at 870 (referring to the effects of increased competition as procompetitive effects and to the effects of decreased competition as anticompetitive effects).

88 Havighurst, , Competition in Health Services: Overview, Issues and Answers, 34 VAND. L. REV. 1117, 1139 (1981)Google Scholar.

89 See generally, Rosenblatt, , Health Care, Markets, and Democratic Values, 34 VAND. L. REV. 1067 (1981)Google Scholar (survey of the market approach to health care delivery, examining how changes in competition within the health care industry affect that industry).

90 Miller, , Vertical Restraints and Powerful Health Insurers: Exclusionary Conduct Masquerading as Managed Caret, 51 LAW & CONTEMP. PROBS. 203, 204 (1988)Google Scholar (internal quotations omitted).

91 Krattenmaker & Salop, supra note 29, at 216.

92 See id.

93 See, e.g., ARK. STAT. ANN. § 23-98-109 (1987) (membership on provider panels must be open to all practitioners willing and able to meet terms and conditions of organization); GA. CODE ANN. § 33-30-25 (Harrison 1989) (all health care providers within denned service area who satisfy standards set forth by insurer must be given opportunity to apply and to become preferred provider); ILL . ANN. STAT. ch. 73, ¶ 982(b) (Smith-Hurd 1988) (insurer shall not refuse to contract with any noninstitutional provider who meets terms and conditions established by insurer or administrator); IND. CODE ANN. § 27-8-1 l-3(c) (West 1986) (no hospital, physician, pharmacist, or other designated provider may be denied right to enter preferred provider agreement); LA. REV. STAT. ANN. § 40.2202(5)(c) (West 1988) (no licensed provider, other than hospital, who meets terms and conditions of preferred provider contract may be denied right to preferred provider status); UTAH CODE ANN. § 31A-22-617(7)(1986) (any health care provider who is willing to meet terms and conditions established by insurer for designation as preferred health care provider shall be eligible to apply for and receive preferred provider status); VA. CODE ANN. § 38.2-3407(B) (1986) (no physician, hospital, or nonphysician practitioner willing to meet terms and conditions of preferred provider contract shall be excluded).

94 Elder, & Hinder, , Legal Issues in Creating PPOs, 1 J.L. & HEALTH 2, 9 (1985)Google Scholar.

95 See supra text accompanying note 79.

96 See Health Care Trends, supra note 79.

97 See supra text accompanying notes 72-77.