Writing for Slate Goldfarb v. Virginia State Bar
laid the foundation for one of the major causes of the present medical costs crisis. The reasoning is that the cause of the constantly rising cost of medical care is the physician owned hospital and excessive and unnecessary referrals for expensive testing. Goldfarb held that the practice of law and other "learned professions" constituted commerce as defined by the Sherman Act and therefore the lawyers of Virginia could not fix prices as this was "anticompetitive conduct." The entrepreneurial doctors, with no doubt the help of their lawyers, convinced the American Medical Association that the previous practice of restricting doctors from advertising, to selling drugs, or owning a financial interest in any lab or machinery they used to perform tests constuted an unlawful restraint of trade. What resulted was the unrestrained increase is medical costs. Great for doctors and the insurance trade, but driving the rest of us to bankrupcy.
The one reason the "silent hand" of the market place does not work to efficiently keep medical care costs down is that entry ino the the market of the "learned professions" is restricted by the state. The state controls entry in to the professions by requiring licenses to practice them. It is recognized that to practice the "learned professions" it is in societies interest that they have minimum levels of training. This monopoly is the reason the Sherman Act should not have been applied the Virgina lawyers. Perhaps the Court should have said that because the lawyers have a legal monopoly that they should not be allowed to fix prices to the injury of their clients. Now that the "learned professions" have sipped the honey of entrepreneueship, it is going to be difficult to get them to restrain themselves. Perhaps, the way to control medical costs is to either abolish their monopoly or for the government to take over some regulation of the profession by restricting their activity to practicing medicine.
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