Judge in 1st antitrust lawsuit v. HCA, Mission says decision is likely in 'next few weeks'

ASHEVILLE - Just more than a year after it started, a North Carolina Business Court judge likely will make a big decision in the coming weeks on the first antitrust lawsuit against HCA Healthcare and Mission Health.

Special Superior Court Judge for Complex Business Case Mark Davis is presiding over the case in which six Asheville-area plaintiffs are suing HCA, Mission and several associated entities, alleging monopoly practice that’s raising prices and lowering the quality of WNC health care.

He told a group of lawyers at an Aug. 17 hearing he’s close to a ruling.

Previous coverage on the Mission lawsuit

• Judge in Mission/HCA antitrust lawsuit orders more info from both sides as decision looms

• HCA, Mission hit with 2nd WNC antitrust suit in a year, this one from a Transylvania city

• NC Treasurer files interest in HCA anti-trust suit; plaintiffs reiterate concerns

If Davis rules in favor of the plaintiffs, the case will likely move forward in Buncombe County Superior Court, where it was originally filed.

The Aug. 17 hearing was the case’s second in the Raleigh-based Business Court: The first was in person and the latest was online.

“I know from all my questions it may sound like I’m far afield,” Davis told attorneys for HCA and the plaintiffs. “But I’m actually pretty close and hoping to get something out in the next few weeks. … You’ll be hearing from us relatively soon.”

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Davis and attorneys had nearly an hour-and-a-half dialogue on Aug. 17, the judge asking several questions and seeking to clarify points on the size of the WNC market HCA serves, the nature of the alleged monopoly it holds, and its ability to control prices, among several other issues.

The case was moved from Buncombe County Superior Court and reassigned to Davis on Jan. 3. He since has not only heard attorneys in person but also has ordered supplemental briefs in the case.

As previously reported by the Citizen Times, the latest order asked for clarity on plaintiffs' arguments regarding the Centers for Medicare & Medicaid Services data they chose to rely on in the original complaint; how they could satisfy “pleading requirements” when alleging anticompetitive behavior; and the breadth of their allegations about HCA’s market power over both inpatient and outpatient services in the five non-Asheville markets.

Matters at issue in the case are complex, dealing with topics ranging from how the limitations in a local health care market cause insurance companies to steer patients toward one provider or another; to whether the complaint addresses only the counties in which HCA/Mission Health has hospitals or whether it addresses needs in all 18 WNC counties; and whether the for-profit HCA hospital system — which is the largest in the nation — is running business in such a way that other providers have little room to compete.

“The harm permeates the entire 18-county region,” said Jamie Crooks of Washington D.C.-based firm Fairmark Partners, an attorney for the plaintiffs, noting allegations regarding monopoly practice are focused on the seven counties Mission serves.

There, according to the original complaint, Mission holds 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%).

Related: Asheville, Buncombe file lawsuit against HCA/Mission Health, which vows to fight back

Related: NC Attorney General Stein says state should 'deny Mission' hospital expansion application

“Is it appropriate for the court to take into account the other 11 counties?” Davis asked Crooks.

Crooks said yes, though he noted the plaintiff’s allegations focus on specific elements like market power and market share in the Asheville regional area. That’s the area the complaint honed in on, but it also has broad, regional implications, according to plaintiffs’ attorneys.

““The 18-county area is Mission’s self-described service area,” Crooks said. “We allege that, due to Mission’s anticompetitive conduct, prices that insured individuals pay for insurance through premiums and coinsurance are higher throughout the service area. So, to that extent, the entire 18-county region is relevant.”

Attorneys for HCA/Mission parties contended the case is centered on the Asheville regionand doesn’t deal with the 11 “outlying” counties as it stands right now.

“The plaintiffs are required to demonstrate or plead at this stage in the litigation that they have alleged harm in a relevant geographic product market,” attorney for the defendants Abram Ellis told Davis. “They have identified several separate regional and product markets. They are not required at this stage to show that all members of the punitive class suffered harm in those relevant markets.”

Whether or not there is what attorneys term a “viable class” of people represented by the plaintiffs’ complaint may be something worked out if the case proceeds.

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HCA attorneys are trying to prevent that. They have asked Davis to dismiss the case.

Davis' ruling could have broad-reaching impacts on antitrust, class-action matters in WNC since Buncombe County, the city of Asheville and the city of Brevard have brought a similar suit against the health care giant and its local hospitals. Madison County will join that lawsuit.

Those cases, originally filed separately for Brevard and Asheville and Buncombe combined, were filed on June 3 and July 27, respectively. They were ordered consolidated on Aug. 8.

Madison's Board of Commissioners voted to join the merged case July 25.

Andrew Jones is Buncombe County government and health care 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: Mission antitrust lawsuit judge could make ruling in 'next few weeks'