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Physician Work Stoppage: The Legal Dilemma

By Jeffrey I. Carton and Barry B. Cepelewicz
August 31, 2004

Over the past year, with the medical malpractice crisis growing to encompass an ever-increasing number of states, physicians have wanted to implement strategies to force the issues out in the open and stimulate reforms. One strategy, which many physicians considered and far fewer implemented, was conducting some form of work stoppage. The concept of a work stoppage has generated a great deal of debate among physicians, medical societies, attorneys, law enforcement officials and legislators, both on legal and ethical grounds. What is the effect of antitrust law on these movements, and how can the outcomes of prior antitrust cases help to frame the legal debate concerning a physician work stoppage? If you have physician clients who are contemplating such actions as part of their efforts toward tort reform, what should you advise them?

The Antitrust Laws

The obvious starting point of any inquiry into the legal consequences of a physician work stoppage is antitrust law. Referred to by its formal title, the Sherman Act, or more commonly as a “restraint of trade,” the antitrust statute prescribes that “[e]very contract, combination … or conspiracy in restraint of trade … is declared to be illegal.” Thus, the hallmark of antitrust violations occurs when two or more parties (typically competitors) combine to restrain trade in an effort to derive some economic benefit to themselves that they could not otherwise obtain in a lawful manner.

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