457 U.S. 332 (1982), 80-419, Arizona v. Maricopa County Medical Society

Docket Nº:No. 80-419
Citation:457 U.S. 332, 102 S.Ct. 2466, 73 L.Ed.2d 48
Party Name:Arizona v. Maricopa County Medical Society
Case Date:June 18, 1982
Court:United States Supreme Court

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457 U.S. 332 (1982)

102 S.Ct. 2466, 73 L.Ed.2d 48



Maricopa County Medical Society

No. 80-419

United States Supreme Court

June 18, 1982

Argued November 4, 1981




Respondent foundations for medical care were organized by respondent Maricopa County Medical Society and another medical society to promote fee-for-service medicine and to provide the community with a competitive alternative to existing health insurance plans. The foundations, by agreement of their member doctors, established the maximum fees the doctors may claim in full payment for health services provided to policyholders of specified insurance plans. Petitioner State of Arizona filed a complaint against respondents in Federal District Court, alleging that they were engaged in an illegal price-fixing conspiracy in violation of § 1 of the Sherman Act. The District Court denied the State's motion for partial summary judgment, but certified for interlocutory appeal the question whether the maximum fee agreements were illegal per se under § 1 of the Sherman Act. The Court of Appeals affirmed the denial of the motion for partial summary judgment and held that the certified question could not be answered without evaluating the purpose and effect of the agreements at a full trial.

Held: The maximum fee agreements, as price-fixing agreements, are per se unlawful under § 1 of the Sherman Act. Pp. 342-357.

(a) The agreements do not escape condemnation under the per se rule against [102 S.Ct. 2468] price-fixing agreements because they are horizontal and fix maximum prices. Horizontal agreements to fix maximum prices are on the same legal -- even if not economic -- footing as agreements to fix minimum or uniform prices. Kiefer-Stwart Co. v. Joseph E. Seagram & Sons Inc., 340 U.S. 211; Albrecht v. Herald Co., 390 U.S. 145. The per se rule is violated here by a price restraint that tends to provide the same economic rewards to all practitioners regardless of their skill, experience, training, or willingness to employ innovative and difficult procedures in individual cases. Such a restraint may also discourage entry into the market, and may deter experimentation and new developments by individual entrepreneurs. P. 348.

(b) Nor does the fact that doctors, rather than nonprofessionals, are the parties to the price-fixing agreements preclude application of the per se rule. Respondents do not claim that the quality of the professional services

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their members provide is enhanced by the price restraint, Goldfarb v. Virginia State Bar, 421 U.S. 773, and National Society of Professional Engineers v. United States, 435 U.S. 679, distinguished, and their claim that the price restraint will make it easier for customers to pay does not distinguish the medical profession from any other provider of goods or services. Pp. 348-349.

(c) That the judiciary has had little antitrust experience in the health care industry is insufficient reason for not applying the per se rule here. "[T]he Sherman Act, so far as price-fixing agreements are concerned, establishes one uniform rule applicable to all industries alike." United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 222. Pp. 349-351.

(d) The per se rule is not rendered inapplicable in this case for the alleged reason that the agreements in issue have procompetitive justification. The anticompetitive potential in all price-fixing agreements justifies their facial invalidation even if procompetitive justifications are offered for some. Even when respondents are given every benefit of doubt, the record in this case is not inconsistent with the presumption that respondents' agreements will not significantly enhance competition. The most that can be said for having doctors fix the maximum prices is that doctors may be able to do it more efficiently than insurers, but there is no reason to believe any savings that might accrue from this arrangement would be sufficiently great to affect the competitiveness of these kinds of insurance plans. Pp. 351-354.

(e) Respondents' maximum fee schedules do not involve price-fixing in only a literal sense. Broadcast Music, Inc. v. Columbia Broadcasting System, Inc., 441 U.S. 1, distinguished. As agreements among independent competing entrepreneurs, they fit squarely into the horizontal price-fixing mold. Pp. 355-357.

643 F.2d 553, reversed.

STEVENS, J., delivered the opinion of the Court, in which BRENNAN, WHITE, and MARSHALL, JJ., joined. POWELL, J., filed a dissenting opinion, in which BURGER, C.J., and REHNQUIST, J., joined, post, p. 357. BLACKMUN and O'CONNOR, JJ., took no part in the consideration or decision of the case.

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STEVENS, J., lead opinion

JUSTICE STEVENS delivered the opinion of the Court.

The question presented is whether § 1 of the Sherman Act, 26 Stat. 209, as amended, 15 U.S.C. § 1, has been violated by agreements among competing physicians setting, by majority vote, the maximum fees that they may claim in full

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payment for health services provided to policyholders of specified insurance plans. The United States Court of Appeals for the Ninth Circuit held that the question could not be answered without evaluating the actual purpose and effect of the agreements at a full trial. 643 F.2d 553 (1980). Because the undisputed facts disclose a violation of the statute, [102 S.Ct. 2469] we granted certiorari, 450 U.S. 979 (1981), and now reverse.


In October, 1978, the State of Arizona filed a civil complaint against two county medical societies and two "foundations for medical care" that the medical societies had organized. The complaint alleged that the defendants were engaged in illegal price-fixing conspiracies.1 After the defendants filed their answers, one of the medical societies was dismissed by consent, the parties conducted a limited amount of pretrial discovery, and the State moved for partial summary judgment on the issue of liability. The District Court denied the motion,2 but entered an order pursuant to 28 U.S.C. § 1292(b),

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certifying for interlocutory appeal the question

whether the FMC membership agreements, which contain the promise to abide by maximum fee schedules, are illegal per se under section 1 of the Sherman Act.3

The Court of Appeals, by a divided vote, affirmed the District Court's order refusing to enter partial summary judgment, but each of the three judges on the panel had a different view of the case. Judge Sneed was persuaded that "the challenged practice is not a per se violation." 643 F.2d at

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560.4 Judge Kennedy, although concurring, cautioned that he had not [102 S.Ct. 2470] found

these reimbursement schedules to be per se proper, [or] that an examination of these practices under the rule of reason at trial will not reveal the proscribed adverse effect on competition, or that this court is foreclosed at some later date, when it has more evidence, from concluding that such schedules do constitute per se violations.

Ibid.5 Judge Larson dissented, expressing the view that a per se rule should apply and, alternatively, that a rule of reason analysis should condemn the arrangement even if a per se approach was not warranted. Id. at 563-569.6

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Because the ultimate question presented by the certiorari petition is whether a partial summary judgment should have been entered by the District Court, we must assume that the respondents' version of any disputed issue of fact is correct. We therefore first review the relevant undisputed facts and then identify the factual basis for the respondents' contention that their agreements on fee schedules are not unlawful.


The Maricopa Foundation for Medical Care is a nonprofit Arizona corporation composed of licensed doctors of medicine, osteopathy, and podiatry engaged in private practice. Approximately 1,750 doctors, representing about 70% of the practitioners in Maricopa County, are members.

The Maricopa Foundation was organized in 1969 for the purpose of promoting fee-for-service medicine and to provide the community with a competitive alternative to existing health insurance plans.7 The foundation performs three primary activities. It establishes the schedule of maximum fees that participating doctors agree to accept as payment in full for services performed for patients insured under plans approved by the foundation. It reviews the medical necessity and appropriateness of treatment provided by its members to such insured persons. It is authorized to draw checks on insurance company accounts to pay doctors for

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services performed for covered patients. In performing these functions, the foundation is considered an "insurance administrator" by the Director of the Arizona Department of Insurance. Its participating doctors, however, have no financial interest in the operation of the foundation.

[102 S.Ct. 2471] The Pima Foundation for Medical Care, which includes about 400 member doctors,8 performs similar functions. For the purposes of this litigation, the parties seem to regard the activities of the two foundations as essentially the same. No challenge is made to their peer review or claim administration functions. Nor do the foundations allege that these two activities make it necessary for them to engage in the practice of establishing maximum fee schedules.

At the time this lawsuit was filed,9 each foundation made use of "relative values" and "conversion factors" in compiling its fee schedule. The conversion factor is the dollar amount used to determine fees for a particular medical specialty. Thus, for example, the conversion factors for "medicine" and "laboratory" were $8 and $5.50, respectively, in 1972, and $10 and $6.50 in 1974. The relative value schedule provides a numerical weight for each different medical service -- thus, an office consultation has a lesser...

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