Abstract: This Note will examine the legality of bills that open up physician collective bargaining—and what kind of provisions lawmakers should include to ensure legality and good policy. Given the current economic downturn, states must look for ways to make health insurance more affordable; a low-cost adjustment of collective bargaining rules may be a good solution. Such an adjustment would not be the only, or necessarily the best, solution to the healthcare cost crisis that exists in America, but it would be worthwhile for legislators to consider. Furthermore, if lawmakers craft legislation that puts state governments in charge of actively supervising these policies, the policies can comport with the existing stateaction doctrine and avoid federal antitrust rules that govern healthcare. Part II of this Note describes the history of the issues involved in physician collective bargaining, including the antitrust laws that apply to the healthcare industry. Part III looks at the specific bills that recently made their way into the California and New York legislatures. Part IV analyzes the main elements of those bills against the state-action doctrine, an exception to antitrust laws that applies when states have a purpose that benefits the public welfare and actively supervise how parties bypass antitrust rules. Part IV also offers recommendations for creating legislation that comports with the state-action doctrine.
Citation: 10 Nev. L. J. 811 (2010)