In the twinkling of an eye : A proporsal for the standard of legality to be applied in hospital staff privileges cases

This paper addresses one of the most troublesome aspects of antitrust jurisprudence. What standard of legality governs cases dealing with medical staff privileges decisions? Heretofore, it was generally thought that only two options existed. The most frequently used standard of legality for this type of case is the rule of reason. In using this analysis, the court looks at the restraint of trade of the reasonableness of its nature, and its purpose and effect. The pro-competitive aspects of the conduct are weighed against the restraints that the conduct imposes on the competition. In health care cases, courts have looked at the purpose of the restriction to determine if it is reasonably related to legitimate objectives or whether it is motivated by an anticompetitive intent to damage or eliminate a competitor form the market. The other option, only rarely applied in the context of staff privileges, is the per se standard. The per se rule deems the restraint to be automatic violations of the antitrust laws without any further inquiry into the precise harm or defendant’s justifications. Historically, the determination of the standard of legality to be used in hospital staff privileges cases heralded the resolution of the case, with the defendant almost always being successful in a rule of reason case and plaintiffs winning the infrequent cases where per se analysis is applied. There appears, however, to be emerging a third option in the field of antitrust law generally. This paper will examine the truncated rule of reason, quick look or twinkling of an eye analysis and its potential application in the hospital staff privileges context