Novel Privacy Concerns in Healthcare Antitrust

Healthcare antitrust practitioners are grappling with the increased value and prominence of patient data in competition. In many respects, this data can be examined using traditional antitrust concepts. However, antitrust authorities and other stakeholders have also raised questions about consumers’ interests in mergers, or other competition practices from a privacy perspective. Privacy advocates have identified a range of possible welfare effects stemming from the commercial collection and use of personal data. Four of these – price discrimination, data security, intrinsic value and autonomy – seem likely to also be applied in some form to antitrust with varying degrees of overlap with traditional consumer welfare analysis. We examine these issues in the context of healthcare, but the analysis is likely to apply similarly to other areas of antitrust.

By Andrew Stivers, Emily Walden & Subramaniam Ramanarayanan^[1]

Personal health information that flows from patients and potential patients to providers and payers is an essential input to patient care and adjudication of payment. Those flows are also increasingly useful as inputs for improving the underlying technology and efficiency of healthcare delivery and as inputs for marketing and competition in the healthcare sector (finding and competing for customers). Because of its increased importance in both quality of service and in competition, antitrust regulators have been scrutinizing how proposed mergers