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Dynamic Chiropractic – August 24, 1998, Vol. 16, Issue 18


Judge Sees No Collusion by HMOs to Exclude Chiropractic

By Editorial Staff
In a 15-page memorandum dated July 13, United States District Court Judge Nina Gershon dismissed the Solla antitrust suit.

The Solla lawsuit dates to 1993 when DCs Phillip Solla, Andrew Lacerenza and Nicholas Napolitano filed an antitrust claim against 12 HMOs doing business in New York City, and in Nassau and Suffolk counties on Long Island, alleging that chiropractors were excluded from participation in their managed health care plans.

Anticipating years of litigations, the Solla plaintiffs formed the Chiropractic Alliance for Equal Access to Health Care Organizations, and began raising money to support the lawsuit.

The HMO defendants, after years of legal maneuvering, filed a motion for summary judgment on March 28, 1997. A summary judgment is an affidavit to the court that asserts nonsubstantive evidence to warrant lengthy litigation and a full trial. William Weber, lead attorney for the Solla plaintiffs, served a 55-page brief in opposition to the HMOs' affidavit.

In the summary judgment affidavit the HMO defendants argued that the Solla plaintiffs had failed to demonstrate "some form of concerted action between at least two legally distinct economic entities." The HMOs argued, to the incredulity of the plaintiffs, that each of the 12 defendant HMOs "unilaterally" decided to adopt basic managed care plans which excluded chiropractic as a covered benefit.

The Solla plaintiffs fully anticipated that judge Gershon would deny the HMOs' motion for summary judgment. However, Judge Gershon deemed there was no collusion by the HMOs to exclude chiropractic services; that the HMOs acted individually, and that therefore it was not an antitrust matter. The judge cited the 1984 Supreme Court decision (Copperweld): "It is perfectly plain that an internal 'agreement' to implement a single, unitary firms' policies does not raise the antitrust dangers that the Sherman act was designed to police."

The Solla plaintiffs argued that each HMO defendant is "by itself a combination in restraint of trade, and that there is no concerted action requirement for an illegal combination." Attorney William Webber said that the "concerted action claim in this age of Internet communications is outdated when dealing with the largest, most sophisticated entities. ... They have sufficient legal methods to learn what each is planning to do prior to any HMO plans being amended or adopted."

The plaintiffs unanimously agreed to recommend to the Chiropractic Alliance that an appeal be filed with the U.S. Circuit Court, Second District. Attorney William Weber has recommended that the appeal be based solely on the "combination" argument. The claim is that each defendant HMOs has formed a combination (contracting with independent physicians or groups of physicians to form IPOs) whose effect is anti-competitive. Mr. Weber noted that "HMOs do not have to meet in smoke filled rooms to conspire against an entire chiropractic profession."

Contact information: The Chiropractic Alliance for Equal Access to Health Care Organizations is at Federal Plaza, 300 Rabro Drive, Suite 122, Hauppauge, NY 11788. Dr. Andrew Lacerenza, treasurer of the Chiropractic Alliance, can be contacted at (516) 225-9880. Contributions to help support the litigation should be mailed to The Chiropractic Alliance, c/o Dr. Andrew Lacerenza, 199 North Wellwood Avenue, Lindenhurst, New York 11757.


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