To prove monopoly, revised complaint in HCA antitrust lawsuit points to Mission’s own data

ASHEVILLE - Attorneys for six plaintiffs in the year-old, original antitrust lawsuit against Mission Health and its owner HCA Healthcare are peeling back new layers of the hospital system’s own data to reassert arguments that it owns a health care monopoly in Western North Carolina.

A revised complaint from the plaintiffs filed Oct. 31 doubles down on allegations the hospital system has a health care monopoly, not just in Buncombe County, but throughout several counties where it provides inpatient and outpatient services.

Though HCA in the case has argued against the market-share monopoly claims and North Carolina Business Court Judge Mark Davis accepted those arguments in a Sept. 19 opinion, plaintiffs’ attorneys of the Wallace & Graham and Fairmark Partners LLP law firms — based in Salisbury and Washington D.C., respectively — now are using data the hospital system provided in its certificate of need application, filed in June.

View of HCA Mission Hospital campus in Asheville
View of HCA Mission Hospital campus in Asheville

That application, a bid to expand Mission by 67 beds in Asheville, notes the inpatient market shares for 2020 were at or above 90% and for 2021 were at or above 88%.

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Lower courts generally agree that to establish monopoly power the market share has to be between 70%-80%.

“As to the outpatient services market in the outlying regions, HCA controls a dominant market share, and its market power is separately evidenced both by its ability to control prices and its control of all of certain outpatient specialties in the relevant counties,” the revised complaint states.

“An analysis of HCA’s control of outpatient physicians in five prominent outpatient specialties available through a commercial health plan shows that HCA controls about 80% of those physicians in Macon, McDowell, Mitchell, Transylvania and Yancey Counties.”

Other data for 2019, 2020 and 2021 amassed by plaintiffs’ attorneys — from CMS Medicare discharges, an IBM Watson analysis, North Carolina Hospital Association and hospital license renewal applications — suggest market-share data could be much higher.

HCA has argued against using other data, noting it doesn’t adequately prove the monopoly argument.

But attorneys for the six Asheville-area plaintiffs think using the hospital systems’ own data may strengthen their argument and potentially yield a revised opinion from Judge Davis.

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"The case is already moving forward, given that the judge ruled that our original complaint plausibly alleged that HCA has unlawfully restrained trade,” Fairmark Partners' Jamie Crooks said. “With this amended complaint, we provide additional evidence to support our allegations that HCA has monopolized health care in much of Western North Carolina."

"This filing is one more step in our effort to provide relief to the citizens of Western North Carolina who have dealt with rising health care costs and declining quality for far too long," said Mona Lisa Wallace, of Wallace and Graham.

Both sides considered Davis’ Sept. 19 opinion a success.

Plaintiffs claimed a victory because the case was allowed to continue, though only because the judge agreed that restraint of trade could be happening in WNC following HCA’s $1.5 billion purchase of Mission Health in 2019.

HCA scored Davis’ opinion on monopolies as a win.

"We appreciate the court’s thoughtful consideration of the issues raised in our filing, and we are pleased with the court’s decision to dismiss a substantial portion of the claims," HCA and Mission spokesperson Nancy Lindell said at the time. "We continue to believe the allegations are wholly without merit, and we will vigorously defend ourselves through the legal process."

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The arguments continue to tackle the legitimacy of HCA’s market share and whether or not the monopoly power — which, among other things, could give the hospital system the power to dictate insurance rates, plaintiffs contend — is legal.

As they continue to bear down on this point, plaintiffs’ attorneys are trying to prove HCA shouldn’t have created the monopoly in the first place, though legislative and market circumstances allowed them to do so in 2018-2019, specifically using a certificate of public advantage.

“Neither Mission nor HCA acquired monopoly power by outcompeting rivals on price and quality as our antitrust laws envision,” the complaint states. “Instead, Mission became a monopoly solely by virtue of a merger that would have been unlawful under the antitrust law but that was shielded from suit by the protection the COPA gave from antitrust scrutiny.”

HCA and all the companies associated with it and listed as defendants in the case have until Dec. 5 to file another motion to dismiss, contending the newest batch of claims, according to a Nov. 1 order.

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 Please help support this type of journalism with a subscription to the Citizen Times.

This article originally appeared on Asheville Citizen Times: Updated HCA monopoly argument uses Mission's own data against it