Asheville-Brevard lawsuit against Mission, HCA files motion building on 1st suit's success

ASHEVILLE - A recent success in one antitrust, class-action lawsuit against Mission Hospital and its owner HCA Healthcare is now fueling arguments for another lawsuit.

In an Oct. 14 filing in North Carolina Business Court the cities of Brevard and Asheville and Buncombe and Madison counties responded to HCA and Mission Health's motion to get a class-action, antitrust lawsuit dismissed, using arguments from another, very similar lawsuit to do so.

In the first lawsuit filed in August 2021 ― named "Davis v. HCA ― six Asheville-area plaintiffs claiming the health care giant was engaging in anti-competitive practices including restraint of trade and monopolization of the local health care market, had some success Sept. 19 in a North Carolina Business Court ruling. It became the first of three antitrust lawsuits brought against Mission in less than a year and is now argument fodder for similar lawsuits.

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The second lawsuit was filed by the city of Brevard in U.S. District Court of Western North Carolina June 6. Buncombe County and the city of Asheville combined to file a third lawsuit July 27. Those lawsuits then merged and added a fourth plaintiff, Madison County.

Though they are working their way through separate N.C. court systems, the two lawsuits are very similar.

They are so similar that the Brevard-Asheville-Buncombe-Madison lawsuit now is referencing the Business Court case, which Special Superior Court Judge for Complex Business Case Mark Davis — no relation to the plaintiff — said could move forward since there was sufficient evidence that restraint of trade existed in WNC because of HCA and Mission Health’s market practices.

Davis did not agree, however, that there was a strong enough argument for a monopoly. However, in what the plaintiffs framed as a win, Davis agreed there was sufficient evidence to support the argument that HCA was acting in an anti-competitive manner, which the Brevard-Buncombe-Asheville-Madison lawsuit noted.

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“(A)s Davis recently held, HCA’s assertion that Plaintiffs have not sufficiently alleged anticompetitive practices … is without merit,” states a response in the WNC district case filed Oct. 14. “As in Davis, the Complaint here details the precise nature of the anticompetitive conduct, specific instances of HCA engaging in it, and its deleterious effects on competition in the Relevant Markets.”

As their lawsuit currently stands, attorneys for Brevard, Buncombe, Asheville and Madison are trying to keep claims from being dismissed.

"In their Complaint, Plaintiffs ignore the last 20-plus years of Mission’s history and the legitimate foundations for its success," Mission’s Sept. 9 motion to dismiss stated.

As previously reported by the Citizen Times, Mission provided inpatient and outpatient care between 1995-2017 as a nonprofit under a Certificate of Public Advantage or COPA, a regulatory measure that kept a cap on Mission’s profit margin and the number of doctors it could employ. Under the COPA, it merged with St. Joseph’s and acquired five other area hospitals. Today Mission Health has seven total main facilities.

"Plaintiffs allege that as a result of the COPA, Mission obtained ‘monopoly power’ over general acute inpatient services … in the Asheville Region (Buncombe and Madison counties), and has, since at least 2017 (if not earlier), unlawfully wielded that legitimately obtained power to extract a ‘web’ of contractual concessions from commercial insurers and self-funded health plans," HCA’s motion stated.

It goes on to recount how the plaintiffs say Mission charges "inflated prices" and reduces quality of care for general acute care and outpatient services in both the Asheville region and Macon, McDowell, Mitchell, Transylvania, and Yancey counties and to "exclude competition for those services in those regions."

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These claims, the HCA and Mission’s attorneys say, are "baseless."

As Mission and the counties and cities argue, they work to define a concept central to the matter: anti-competitive practices.

“(T)he law is clear that ‘[a]nticompetitive conduct’ can come in too many different forms, and is too dependent upon context, for any court or commentator ever to have enumerated all the varieties,'’” the Oct. 14 response states. “The pertinent question is not whether the Scheme involved exclusive dealing, but rather whether it undermined competition.”

This “Scheme” as referenced in all the WNC lawsuits against HCA and Mission is what plaintiffs call the hospital systems’ “illegal maintenance and enhancement of monopoly power.”

But debate in both cases now leans towards defining where exactly Mission holds that alleged monopoly power. For both the Brevard, Buncombe, Asheville, Madison lawsuit and the original lawsuit, there may be further debate about exactly how much of the market the hospital system owns, both in Asheville and in several other counties.

Data cited in the original complaints asserts that, in the years after HCA Healthcare purchased the Mission Hospital system in 2019, it has come to hold a monopoly market share — 70% or more — in seven counties: Yancey (90.9%), Madison (90%), Buncombe (86.6%), Mitchell (85.4%), Transylvania (78.7%), McDowell (76.4%) and Macon (74.7%).

Though this data and other elements contributing to the “HCA owns a monopoly” argument were not sufficient for Judge Davis to agree, plaintiffs will continue to fight the monopoly point in Business Court, according to other recent filings and attorneys working on the case.

More responses are due early November.

Andrew Jones is an investigative reporter for the Asheville Citizen Times, part of the USA TODAY Network. Reach him at @arjonesreports on Facebook and Twitter, 828-226-6203 or arjones@citizentimes.com. Please help support this type of journalism with a subscription to the Citizen Times.

This article originally appeared on Asheville Citizen Times: Asheville-area lawsuits against HCA, Mission playing off each other