(English) CADE REAFFIRMS PROHIBITION OF STANDARDIZED FEES

In a trial session which took place on November 9th, 2016, CADE fined Unidas, a doctors’ association from the Brazilian state of Mato Grosso[1], for demanding that its associates charge standardized medical fees for anesthesia services. According to the Reporting Commissioner, Márcio de Oliveira Jr., this standardization will be illicit whenever the association responsible for it (i) is not entitled by law to negotiate prices collectively; (ii) uses direct or indirect means of coercion; and (iii) prevents negotiations that would allow both parties to bargain freely. The Commissioner also mentions in his vote that this issue raises discussions on the existence of countervailing power, and whether or not it could eliminate the conduct’s potential to harm competition. This argument was previously made by former Commissioner Ana Frazão, in a dissenting opinion in a similar case [2]. The former Commissioner emphasized in her opinion that the market of healthcare services is characterized by serious asymmetry of information due to market power held by healthcare providers, which are the main customers of medical doctors’ associations. The former Commissioner thus concluded that the economic advantages gained by healthcare providers when negotiating with patients were not being properly transferred to doctors. In this scenario, collective negotiations between doctors could be a licit manner of confronting the providers. This opinion, however, was not followed by any other Commissioners, though Commissioner João Paulo has stated that, regarding the Unidas case, he is concerned about the relationship between healthcare providers and medical doctors’ associations, which is getting close to a monopoly on both ends.

2016/11/25