In years past, medical schools did not include courses on the business of healthcare delivery. So physicians typically graduated relatively unprepared for the economics involved in their life's work.

Uniformly uninformed, physicians never had a true understanding of the contemporary or historical nature of the dynamic healthcare marketplace. Likewise, patients never had a true grasp of the dollar value of healthcare. Patients floundered in the healthcare delivery system as sheep of lost shepherds.

When new systems of organized healthcare delivery became ripe for harvest, corporations (neither patients nor physicians) did the harvesting. Big business, well trained in the process of following the money, kept close track of costs to their competitive advantage.

An understanding of insurance companies' competitive advantage begins with an understanding of the history of monopolies and antitrust.

In the late 1800s, American small-business representatives expressed a great deal of concern that large-business monopolies would control interstate commerce and stifle competition. At that time, healthcare delivery existed as a cottage industry controlled by solo and small-group practicing physicians. Physicians paid no attention to the possibility that corporations might grow to exert oligopolistic control and then transform legal and medical systems without regard for the sacrosanct doctor-patient relationship. The "lay practice of medicine" had not yet been debated in Washington, D.C.

In 1890, President Benjamin Harrison's administration passed the Sherman Antitrust Act to protect small businesses. Restraining or monopolizing free trade and reducing competition became a felony. Physicians had no reason to believe that they would ever need to bargain collectively, and if they had desired to do so, collective bargaining would not have been illegal.

In 1914, the Clayton Antitrust Act gave teeth to the Sherman Antitrust Act by establishing steeper penalties for individuals involved in the conspiracy of antitrust. The act specifically defined price fixing, restraint of trade and restriction of competition. The "learned professions" such as medicine and law stayed immune to the legislation because they were not considered a "trade" or "commerce."

Times changed, as did healthcare delivery systems. With the advent of third-party payers, some physicians formed medical practice groups, financial buying groups and various medical society groups. Collective bargaining by one physician on behalf of a group of physicians became commonplace.

However, in 1975, the U.S. Supreme Court found a group of lawyers guilty of price fixing for their professional services, in the Goldfarb vs. the Virginia State Bar case. A Virginia County Bar Association had established a rigid price floor to evaluate title insurance for a couple buying a home in Virginia. The "learned profession" of law had agreed to exchange its services for a fixed fee, published in a minimum fee schedule. The State Bar threatened disciplinary action against lawyers who charged less. In light of those events, the Supreme Court defined the transaction as "anticompetitive" and the exchange of money for the service as "commerce."

The Sherman Antitrust Act was then extended to the "learned professions," including medicine. Thus, physicians lost the right to collective bargaining.

In 1982, the U.S. Supreme Court found an antitrust violation by physicians in Arizona vs. Maricopa County Medical Society. The prevailing justices abandoned the "rule of reason" in making a split decision, a ruling that failed to account for the public good, where a discounted maximum relative value price scale benefited patients by lowering prices.

Also in 1982, Congress passed the Antitrust Equal Enforcement Act, which defined consequences for litigating aspects of the Sherman Antitrust Act, but failed to make any exception for the practice of medicine. The legislation provides for severe penalties: jail sentences, loss of citizenship, lifetime business restrictions and individual fines up to $100,000, with corporate fines up to $1 million per count.

Today, the original antitrust laws designed to protect small businesses, such as private doctors' offices, now protect oligopolistic and monopolistic healthcare delivery corporations by denying physicians the right to collectively bargain. Instead, physicians are forced to sign non-negotiable "take it or leave it" contracts or risk losing 50 percent or more of their patient base.

Before 1982, physicians agreed to work with health insurance companies on an assignment basis. Independent contracting in Medicaid came along as a good thing for the poor, but a hidden rider to that good deed punished physicians by allowing independent contracting for all healthcare insurers. Direct independent contracting eventually created an additional and unquestioned imbalance of power in favor of insurance companies and to the detriment of physicians and patients.

The Quality Health Care Coalition Act of 1999, passed by the U.S. House of Representatives as HR 1304, would have restored physicians' rights to collectively bargain, without conferring any right to participate in any collective cessation of services to patients. However, the bill failed in the U.S. Senate.

Allowing physicians to negotiate collectively with healthcare plans will not change physicians' ethical duty to continue to provide medically necessary care to patients. Healthcare is not a "take it or leave it" commodity that can be strictly ruled by the "letter" of antitrust law. Our nation's healthcare is a necessity that should be judged by the "spirit" of antitrust law.

Healthcare delivery can never be considered an industry completely subject to all the antitrust rules of a free market. Unlike other industries that are not conflicted with moral dilemma, health keepers--thankfully--are not willing to refuse life or death services to those who cannot pay.

The time is ripe for physicians to unite behind a renewed effort to urge Congress to pass an antitrust exemption bill for healthcare.