The next assault on the self-regulation of the professions came in the 1970s
from the concern of the courts and the FTC about anticompetitive practices.
This was not the first time the FTC had entered medical society politics. As
early as the 1930s, it had brought legal action against certain medical societies
for blacklisting physicians who participated in prepaid medical plans. These
antitrust efforts died out during World War II and were not resumed in earnest
until the 1970s.
The case that finally reached the Supreme Court involved attempts by a bar
association to fix fees. In Goldfarb v. Virginia State Bar, [
Goldfarb v. Virginia
State Bar, 421 U.S. 733 (1975)
] the U.S. Supreme Court held that the
delegation of authority to professional societies to conduct peer review did not
encompass a grant of authority to engage in price fixing. This decision was
followed by a ruling against an engineering society that held that attempts to
manipulate technical standards to benefit one competitor over another, hidden
in the guise of standards to protect the public, would not be allowed.
[American Soc’y of Mechanical Eng’rs v. Hydrolevel, 456 U.S. 556 (1982)
result of these rulings has been an effort by the FTC and private litigants to
force professional societies to refrain from anticompetitive actions.
The effect of FTC enforcement actions and private litigation has been perverse
at times. Exemplary attempts to establish objective standards for medical
practice (such as the Academy of Pediatrics’ “Blue Book”) have been thwarted
because of the fear of litigation. Simultaneously, some practitioners have used
threats of antitrust litigation to suppress criticism of questionable procedures
or marketing practices. A cynical observer might say that the FTC has removed
curbs on unprofessional practices, which has increased the cost of medical care
by increasing the marketing of dubious procedures. Except for the certification
activities of the large professional societies, the control of medical staff
privileges has passed from local medical societies to hospital and other