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

ASHEVILLE - A North Carolina Business Court judge has ordered parties in an antitrust lawsuit against HCA Healthcare and Mission Health in Western North Carolina to answer more questions before he makes a decision about whether or not the case can move forward in Buncombe Superior Court.

Special Superior Court Judge for Complex Business Case Mark Davis in the case’s most recent filing July 14 told attorneys for plaintiffs — six WNC residents — and the defendants — HCA, Mission and other business entities related to the Nashville-based company’s WNC operations — to answer three questions.

More about the first WNC antitrust lawsuit against HCA:

• HCA/Mission hit with anti-trust lawsuit, accused of exorbitant prices, declining quality

• HCA: Asheville residents' anti-trust lawsuit is an 'end-run' around Mission hospital sale

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

The legal teams have until July 25 to respond these questions and have to limit their responses to 5,650 words, according to court filings.

Those questions probe the plaintiffs' arguments regarding the Centers for Medicare & Medicaid Services data they chose to rely on in the original complaint; the breadth of their allegations about HCA’s market power over both inpatient and outpatient services in the five non-Asheville markets; and how they could satisfy “pleading requirements” when alleging anticompetitive behavior.

Davis’ order is the second since the case’s first N.C. Business Court hearing April 27. That day he requested supplemental briefs from each side, to which attorneys responded with lists of cases and evidence to support their separate arguments.

When reached for comment, Mona Lisa Wallace of Salisbury firm Wallace & Graham, one of the plaintiffs’ attorneys, said she would discuss the order only after the firm filed a response July 25.

There is no clear timeline for Davis to file an opinion on the case, though N.C. Business Court clerks said it could be “a long time” before a decision.

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Filed originally in Buncombe County Superior Court Aug. 10, the antitrust case made its way to Business Court Jan. 3.

The 87-page complaint charges HCA Healthcare with using a monopoly on the local health care industry to charge rates much higher than the state average while quality declines, among numerous other allegations.

The for-profit HCA Healthcare purchased the Mission Hospital system in 2019 for $1.5 billion, and the lawsuit says it now 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%).

Attorney General Josh Stein in his official capacity and Treasurer Dale Folwell as an individual both have filed friend-of-the-court briefs supporting the plaintiffs and decrying the lack of transparency in pricing and the merger process used during the purchase.

The lawsuit against Mission in Asheville is no longer alone in WNC. Another suit brought by the city of Brevard was filed in the U.S. Western District Court of North Carolina June 3.

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It proposed class action for "unlawful restraint of trade and monopolization" and seeks damages and relief through a jury trial.

Besides facing two antitrust lawsuits in 2022, HCA/Mission also faces potential competition in the form of a certificate of need. Mission and two other hospital systems — AdventHealth and Novant Health — want to expand hospital services by 67 beds in Buncombe, and each have submitted certificates of need to do so.

That means Mission may not be the only hospital in Buncombe in the coming years, a decision that will ultimately be made by officials with the N.C. Department of Health and Human Services' Division of Health Service Regulation.

Public comment for that process is open through the end of July. The DHSR is accepting public feedback on the three CONs, including letters of support that anyone can email to DHSR.CON.Comments@dhhs.nc.gov.

The state will hold a public hearing on the process Aug. 12.

During an online forum July 14 hosted by patient advocacy organizations, doctors, legal experts, economists and a nurse talked about HCA’s monopoly in the WNC region and how it continued to, according to them, stifle both competition and the quality of patient care.

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: NC Business Court judge seeks more info in HCA antitrust lawsuit