Criminal investigation and enforcement of the antitrust laws in the health care field.

One of the most significant of the many developments contributing to the revolution in the health care field in the past ten years is the federal government's decision to prosecute health care professionals criminally for alleged violations of the antitrust laws. Almost unthinkable ten years ago, hospitals and physicians now face the new-and very real-prospect of criminal investigation and prosecution for activities that are recognized as per se violations of the antitrust laws and for which other businesses and business people have long been convicted. 1 Over the years the seemingly different treatment of health care professionals led to a perhaps understandable but now misplaced confidence that health care providers were somehow immune from criminal prosecution. That belief has now been convincingly shattered. Not only is it unmistakably clear that the antitrust laws apply to health care professionals, like any other professional or nonprofessional engaged in business, 2 but the government demon-Commission. She received her bachelor of arts from Wesleyan University (1974) and her juris doctor from Georgetown University Law Center (1977). ** Helen-Louise Hunter is an associate in the Washington office of Jones, Day, Reavis & Pogue. She received her bachelor of arts from Bryn Mawr College (1956), her masters of arts from Yale University (1958), and her juris doctor from Georgetown University Law Center (1986). 1. Agreements among competitors to fix prices, allocate markets, and/or engage in group boycotts are per se violations of the antitrust laws. The government does not need to prove an anticompetitive intent or effect in such cases, as it must in other antitrust cases, because the anticompetitive effect of these practices has been so well established in case law. These activities have long been considered the most egregious type of antitrust violation and have been prosecuted criminally in most industries, although not in the health care field until recently. 2. In three major decisions, the Supreme Court held unequivocally that professional activities are not exempt from the antitrust laws or from per se scrutiny. See Federal Trade Comm'n v. ("the nature of an occupation, standing alone, does not provide sanctuary from the Sher-man Act"). Annals of Health Law strated that it will, at its discretion, enforce the antitrust laws criminally as well as civilly against health care and non-health care violators alike. In hindsight, it is not surprising that the health care industry became a major focus of the antitrust enforcement agencies during …