Antitrust Law Daily Wrap Up, ANTITRUST—D.N.M.: Confidential patient data not discoverable in oncology monopolization suit, (May 12, 2016)

By Greg Hammond, J.D.

A cancer treatment facility, health care system, and health plan provider were not entitled to third-parties’ detailed patient and billing information to demonstrate market power in the inpatient hospital services (IHS) market, the federal district court in Las Cruces, New Mexico, has determined. In granting the third-parties’ motions to quash, the court concluded that significant other evidence of monopoly power in the IHS market exists and can be utilized for the same purpose; the comprehensive data request was massive; and the patient data is protected from disclosure under all but very limited and controlled circumstances (New Mexico Oncology and Hematology Consultants, Ltd. v. Presbyterian Healthcare Services, May 10, 2016, Wormuth, G.).

New Mexico Oncology and Hematology Consultants, Ltd. (NMOHC) filed a complaint against Presbyterian Healthcare Services and Presbyterian Network, Inc., alleging monopolization and attempted monopolization claims under Section 2 of the Sherman Act. Specifically, NMOHC claimed that the defendants used their dominance in the market for private health insurance and inpatient hospital services to drive the plaintiff out of the market for comprehensive oncology services. The court, however, dismissed a third claim, alleging that the defendants exercised monopoly control over IHS. The case was before the court on various third-party motions to quash subpoenas seeking information concerning the IHS market.

Patient, billing data. Both NMOHC and the defendants have subpoenaed detailed patient and billing information for every inpatient hospital service provided by the University of New Mexico Medical Group, Lovelace Health System Inc., New Mexico Health Connections, and Blue Cross Blue Shield in the surrounding Albuquerque-area for the “past eight years.” Although the defendants’ market power in the IHS market remained relevant to NMOHC’s claims of monopolistic behavior in the private health insurance market and the comprehensive oncology market, the requests for patient and billing data were not proportional, according to the court. In particular, the court determined that significant other evidence of the defendants’ power and behavior in the IHS market exists and can be utilized for the same purpose; the comprehensive data request is massive, including approximately 7 million service lines that would take months to sort through; and it is uncontroverted that the request seeks highly confidential patient data that is protected from disclosure under all but very limited and controlled circumstances by the Health Insurance Portability and Accountability Act and similar New Mexico privacy laws. The motions to quash were therefore granted with regard to this data.

Market plans, analyses. There were additional motions to quash requests for third-party market plans and market analyses concerning the IHS market. Although the court found that competitors’ views and evaluation of the market were relevant to defining a market and evaluating market power, the information sought was undeniably confidential commercial information. The court consequently established two categories of documents: (1) documents that relate to prior business plans and/or the market generally (Category 1); and (2) documents that detail future plans to compete in the market (Category 2). The court required disclosure of Category 1 documents, but limited to high level strategy and planning documents concerning the market that speak to entry and exit conditions, competitive and comparative positions and products offered by the requested party and competitors, relative size and strength of the requested party and competitors, consumer sensitivity to change in price, and innovations or developments in the market. The court, however, granted the third-parties protection from disclosing documents that detail future plans, but required disclosure of documents that reveal their general analysis of the market and business plans for years prior to 2015.

The case is No. 12-526 MV/GBW.

Attorneys: Brian P. Jakulevicius (Law Office of George M. Sanders, PC) and J. Douglas Foster (Foster, Rieder & Jackson, PC) for New Mexico Oncology and Hematology Consultants, Ltd. Bruce D. Hall (Rodey Dickason Sloan Akin & Robb PA) and Douglas E. Litvack (Jones Day) for Presbyterian Healthcare Services and Presbyterian Network, Inc.

Companies: New Mexico Oncology and Hematology Consultants, Ltd.; Presbyterian Healthcare Services; Presbyterian Network, Inc.

Cases: Antitrust NewMexicoNews