Case 2:21-cv-02204 Document 1 Filed 04/21/21 Page 1 of 20 PageID #: 1
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`-against-
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`Plaintiff,
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`COMPLAINT
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`JURY TRIAL DEMANDED
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF NEW YORK
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`NEUROLOGICAL SURGERY PRACTICE OF
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`LONG ISLAND, PLLC,
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`EMPIRE HEALTHCHOICE HMO, INC. and
`EMPIRE HEALTHCHOICE ASSURANCE, INC., :
`: Case No. 21- cv - 2204
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`::
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`Defendants.
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`Plaintiff, Neurological Surgery Practice of Long Island, PLLC (“Neurological Surgery”),
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`by its attorneys, Harris Beach, PLLC, alleges for its Complaint against Defendants, Empire
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`Healthchoice HMO, Inc. and Empire Healthchoice Assurance, Inc. (“Empire”), as follows:
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`INTRODUCTION
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`1.
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`The world universally regards the American health care system as the finest in the
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`world. Traditionally, the cornerstone of this system has been freestanding physician practices.
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`These practices comprised of a single or a small number of physicians who practice the same
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`medical specialty, have historically provided innovative, high-quality medical care to patients.
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`2.
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`The secret to the success of these practices is freedom. The physicians themselves
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`own these practices, and thus are free to decide all aspects of how to deliver their services to
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`patients. Given the relatively small size of these practices, their physician-owners have
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`developed longstanding, personal relationships with patients, which enhance both the quality of
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`patient care and the overall patient experience.
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`3.
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`Additionally, because these practices have traditionally been independent of any
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`hospital, referring provider, or health plan, they have been able to recommend the best course of
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`medical treatment for their patients free of any outside influence or conflict of interest.
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`4.
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`They are also small enough to innovate nimbly. In summary, these small,
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`freestanding, single specialty medical practices are the very essence of American capitalism.
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`5.
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`As we explain in detail below, Neurological Surgery is a prime example of this
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`small, freestanding, single specialty medical practice. Founded over three decades ago, it has
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`focused on providing high quality neurosurgery care to patients throughout the New York
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`metropolitan area. Owned by its physician providers, it traditionally has been independent of
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`any hospital or health plan. Through hard work providing excellent care, Neurological Surgery
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`has become the most innovative, high quality neurosurgery providers in the metropolitan area.
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`6.
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`Unfortunately for Neurological Surgery and other freestanding surgery practices
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`in the New York metropolitan area, Empire – one of the largest managed care organizations and
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`health plans in the area– has embarked on a campaign of illegal and anti-competitive actions
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`that directly target these practices, and are designed to strangle and, ultimately, force these
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`freestanding neurosurgical practices out of business.
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`7.
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`The means that Empire has employed to carry out their illegal and anti-
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`competitive scheme is their knowing and intentional dramatic lowering of reimbursement rates
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`to levels that are far below the costs of these practices to provide services. Putting it starkly,
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`Empire is imposing shockingly low reimbursement rates on neurosurgery practices, including
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`Neurological Surgery that they know are fake and manipulated.
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`8.
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`Empire’s illegal and anti-competitive actions have already significantly harmed
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`Neurological Surgery and other freestanding neurological surgery practices in the New York
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`metropolitan area. If allowed to continue unchecked, Empire’s actions will cause a substantial
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`and unreasonable harm to competition in the metropolitan area. This will result in decreased
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`output and quality of neurosurgery and other surgical services, higher prices, longer wait times,
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`and loss of consumer choice. As we explain in detail below, this is precisely Empire’s desired
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`result, because the driving out of freestanding neurosurgery practices enables them to reap anti-
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`competitive benefits through the use of these fake and manipulated reimbursement rates.
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`9.
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`As we also explain in detail below, nothing more than greed motivates Empire’s
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`actions. While Empire is drastically cutting its reimbursement rates to neurosurgery (and other
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`freestanding medical specialty practices), it is certainly not passing these “savings” on to its
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`customers. Upon information and belief, for 2021, Empire has demanded premium increases
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`from its commercial customers in excess of 15%. It sought average premium increases from the
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`New York State Department of Financial Services for its individual and small group plans of
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`more than 16% in 2021 (although the State granted far smaller increases),
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`10. During this same period, Empire’s revenues and profits have dramatically
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`increased. In January 2021, Empire’s parent, Anthem, Inc., reported operating revenue of $31.5
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`billion in the fourth quarter of 2020, an increase of $4.4 billion, or 16.2 percent, from the fourth
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`quarter 2019. Its benefit expense ratio was 88.9% in fourth quarter 2020, a decrease of 10 basis
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`points from fourth quarter 2019. Operating cash flow was $3.8 billion in fourth quarter 2020, an
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`increase of $2.5 billion over fourth quarter 2019.1
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`11. As Empire is fully aware of, its dramatic lowering of reimbursement rates is
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`forcing many freestanding neurosurgical practices to leave the market. As we explain in detail
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`1 https://www.businesswire.com/news/home/20210127005298/en/Anthem-Reports-Fourth-Quarter-and-Full-Year-
`2020-Results (accessed Apr. 7, 2021).
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`below, this is causing significant harm to patients through the decreased availability of
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`neurosurgical services, and reduced quality.
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`12. While Empire is dramatically lowering neurosurgery reimbursement rates across
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`the board, it is well aware that the freestanding neurosurgery practices are withstanding the
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`worst of this decrease. This is because hospital-based neurosurgery groups are largely immune
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`to decreased reimbursement rates because of the hospitals’ other revenue sources.
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`13.
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`Indeed, as discussed in detail below, for every $1 in direct reimbursement that
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`hospitals receive from providing neurosurgery services, the hospitals receive $14 in additional
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`ancillary revenue generated from those neurosurgery services. Thus, as Empire is well aware,
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`the hospitals can tolerate – and even accept – an artificial lowering of this $1 in direct
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`neurosurgery reimbursement to as low as 10¢, as long as the $14 in ancillary reimbursement is
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`preserved.
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`14. The hospitals can use this $14 to help defray the high costs of providing
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`neurosurgery services; while the freestanding practices such as Neurological Surgery are forced,
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`pay these ever-increasing costs out of the 10¢ of direct reimbursement.
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`15. As a result, Neurological Surgery and other freestanding practices are falling
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`further and further behind financially because of the dramatically declining reimbursement
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`rates, which no longer even remotely reflect the high costs of providing neurosurgery care.
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`Empire is well aware of this fact and, indeed, intends for it to occur so that it can drive the
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`freestanding neurosurgery practices out of business.
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`16. The departure of freestanding neurosurgical (and other surgical) practices from
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`the market is also decreasing competition among Empire and other major managed care
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`companies in the New York market. This is because freestanding surgical practices fiercely
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`advocate for their patients, educate their patients about improper insurance practices, and
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`expose the fact that many health plans currently offer illusory benefits and minimal coverage in
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`many cases.
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`17. When freestanding practices education patients practices in these ways, the
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`patients put pressure on the health plans to innovate, improve their offerings, and change their
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`ways. This significantly promotes competition among health plans in the market for purchasing
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`health plan benefits. Elimination of freestanding surgical practice will grind this competition to
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`a halt, and thus greatly harm the individual and corporate purchasers of health plan benefits.
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`18. As set forth in greater detail below, Empire’s actions – particularly the systematic
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`lowering of reimbursement rates for neurosurgery services, resulting in utterly fake and
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`manipulated rates — has unreasonably restrained and damaged competition in the market for
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`these services in violation of Section 1 of the Sherman Act., 15 U.S.C. § 1, and the New York
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`State Donnelly Act, General Business Law §§ 340, et seq.
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`19. Through this lawsuit, Neurological Surgery seeks a declaration that Empire’s
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`actions in imposing these fake and manipulated reimbursement rates are illegal, a permanent
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`injunction preventing Empire from continuing
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`these anti-competitive practices, and
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`compensatory damages for the financial harm Neurological Surgery has suffered because of
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`Empire’s anticompetitive actions. Neurological Surgery also seeks an award of attorneys’ fees
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`and such other and further relief as the Court may deem just and proper.
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`Plaintiff
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`PARTIES
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`20. Neurological Surgery Practice of Long Island, PLLC is a New York professional
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`service limited liability corporation with its principal place of business located at 100 Merrick
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`Road, Suite 128W, Rockville Centre, New York.
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`21. Neurological Surgery Practice of Long Island, PLLC was formed in August 2020,
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`and, because of a merger in December 2020, is the corporate successor of Neurological Surgery,
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`P.C.
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`22. Neurological Surgery is the most prominent private neurosurgery practice in the
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`New York metropolitan area. Its award-winning specialists are among the best neurosurgeons
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`in the region.
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`23. Neurological Surgery has developed Centers of Excellence in a wide variety of
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`neurosurgery and related subspecialties, including a Brain Tumor Center, Spine Center,
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`Trigeminal Neuralgia and Face Pain Center, Cerebrovascular/Neuroendovascular Center,
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`Pediatric Neurosurgery Center, General Neurosurgery Center, Movement Disorder Center,
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`Epilepsy Center, Concussion Center, Stereotactic Radiosurgery Center, Chiari Malformation
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`Center, and Pain Center.
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`24. Many of the patients treated by Neurological Surgery have complex neurological
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`conditions requiring neurosurgical procedures and treatment.
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`25. Neurological Surgery’s physicians perform these procedures at hospitals and
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`other healthcare facilities located throughout the New York metropolitan area.
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`26. Many of Neurological Surgery’s patients receive health insurance coverage from
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`Defendants, which are some of the largest health plans serving residents in the New York
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`metropolitan area.
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`Defendants
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`27. Upon information and belief, Defendant Empire Healthchoice HMO, Inc. is a
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`New York business corporation licensed by the New York to operate a health maintenance
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`organization under article 44 of the New York Public Health Law. Its principal place of
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`business is located at 9 Pine Street-14th Floor, New York, New York 10005.
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`28. Upon information and belief, Defendant Empire Healthchoice Assurance, Inc.
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`(formerly known as Empire Blue Cross and Blue Shield and Blue Cross and Blue Shield of
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`Greater New York) is a New York accident and health insurance company licensed under
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`section 1113(a) of the New York Insurance Law. Its principal place of business is located at 9
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`Pine Street-14th Floor, New York, New York 10005.
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`29. Upon information and belief, Defendants are subsidiaries of Anthem, Inc., a for
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`profit health insurance provider headquartered in Indianapolis, Indiana.
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`30. Anthem, Inc. is the largest for-profit managed health care company in the Blue
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`Cross Blue Shield Association. As of December 31, 2020, its medical enrollment totaled
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`approximately 42.9 million members. Anthem is the largest healthcare company in the world by
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`revenue, with 2019 revenue of $242 billion. Its operating income for 2019 was $18 billion. In
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`2018, it was ranked 29th on the Fortune 500.
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`31.
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`In 2019, Empire’s share of the New York State commercial health plan market
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`was 21.6%. Its share of the New York City metro area commercial market was 26.2%.2
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`JURISDICTION AND VENUE
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`32.
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`Jurisdiction of this Court is proper under 28 U.S.C. § 133, providing for original
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`jurisdiction by federal courts over “a claim or right arising under” the laws of the United States.
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`2 http://www.markfarrah.com/mfa-briefs/health-insurance-competition-and-commercial-market-share-in-three-new-
`york-metro-
`areas/#:~:text=Approximately%2013.3%20million%20people%20were,plan%20in%20New%20York%20MSAs.&t
`ext=Total%20commercial%20enrollment%20is%20nearly,11.4%25%20and%208.0%25%20respectively.(accessed
`Apr. 7, 2021).
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`33. Venue is proper in this District under 28 U.S.C. § 1391(b)(2) because the acts
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`complained of have occurred within this District.
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`FACTUAL ALLEGATIONS COMMON TO ALL CAUSES OF ACTION
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`34. Neurological Surgery repeats and re-alleges the matters set forth above as if more
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`fully set forth herein.
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`The Neurosurgery Market
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`35. Neurosurgery is the medical specialty concerned with the prevention, diagnosis,
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`surgical treatment, and rehabilitation of disorders that affect the body’s nervous system,
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`including the brain, spinal cord, central and peripheral nervous system, and cerebrovascular
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`system.
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`36. The physicians who specialize in providing neurosurgical care are neurosurgeons.
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`37.
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`In the United States, neurosurgeons typically must complete seven years of post-
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`graduate medical training – residency training – after graduating from medical school.3
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`38. The hallmark of neurosurgical training, experience, and competence in the United
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`States is board certification. The two main board certification bodies for neurosurgery are the
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`American Board of Neurological Surgery and the American Osteopathic Board of Surgery.4
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`39. Conditions treated by neurosurgeons include meningitis and other central nervous
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`system infections, spinal disc herniation, cervical and lumbar spinal stenosis, hydrocephalus,
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`head trauma, tumors of the brain, spinal cord trauma, traumatic injuries of peripheral nerves,
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`tumors of the spine, spinal cord, and peripheral nerves, intracerebral hemorrhages, Parkinson’s
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`Disease, and vascular malformations.
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`3 See, e.g., “The Johns Hopkins Neurosurgery Residency Program,” Johns Hopkins Medicine, available at
`https://www.hopkinsmedicine.org/neurology_neurosurgery/education/residencies/neurosurgery_residency/program_
`overview/.
`4 AMERICAN BOARD OF NEUROLOGICAL SURGERY, https://abns.org; AMERICAN OSTEOPATHIC BOARD OF SURGERY,
`https://certification.osteopathic.org/surgery/.
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`40. Patients with these conditions usually need medical diagnosis and treatment by a
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`trained neurosurgeon; other medical professionals or specialists are not reasonable substitutes
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`because they are not qualified or competent to provide the same level of treatment or care.
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`41. Given the chronic and urgent nature of many of these neurosurgical conditions,
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`patients need to seek treatment close to where they live and work. Generally, most patients are
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`willing to travel only about 30 minutes for neurosurgery services. Accordingly, the relevant
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`geographic market for neurosurgery services in this lawsuit is no larger than the New York
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`metropolitan area.
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`Importance of Freestanding Practices
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`42. Traditionally, most neurosurgical care in the United States – and in the New York
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`metropolitan area in particular –has been provided through freestanding physician practices
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`comprised of a single or a relatively small number of neurosurgeons. Neurological Surgery is an
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`example of one such freestanding neurosurgical practice.
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`43. Providing neurosurgical care through freestanding practices has a number of very
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`significant benefits. The neurosurgeons themselves own these practices, and thus are free to
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`decide all aspects of how to deliver their services to patients. Given the relatively small size of
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`these practices, the neurosurgeons have been able to develop longstanding, personal
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`relationships with patients, which enhance both the quality of patient care and the overall
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`patient experience.
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`44. Additionally, because these practices have traditionally been independent of any
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`hospital, referring provider, or health plan, they have been able to recommend the best course of
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`medical treatment free of any outside influence. They are also small enough to innovate nimbly.
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`45.
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`In addition to freestanding neurosurgical practices, hospitals also provide
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`neurosurgical care. These hospitals employ neurosurgeons, who provide care on behalf of the
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`hospital, which is responsible for billing and collecting for the treatment rendered.
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`46. Since hospital-employed neurosurgeons are employees, the hospitals largely
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`dictate the means and manner of the care that they provide. The hospital determines such issues
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`as patient load, scheduling, managed care reimbursement, and other logistical matters.
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`47. Through the years, many patients have found freestanding, private neurosurgical
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`practices as the optimal setting for care. This is largely because, given the relatively small size
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`of these practices, the physicians in these practices are able to provide personalized, high
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`quality, innovative care with lower patient volume and shorter wait times.5 This is in contrast to
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`hospital-based neurosurgical care, which typically relies on a high volume, more impersonal
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`model of care.
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`48. Studies have shown that “small, physician-owned practices, while providing a
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`greater level of personalization and responsiveness to patient needs, have lower average cost per
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`patient, fewer preventable hospital admissions, and lower readmission rates” than larger or
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`hospital-owned practices.6
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`49. Accordingly, the presence of many robust, high quality freestanding private
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`neurosurgical practices in the New York metropolitan area has enhanced competition, improved
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`quality of care, and provided increased patient choice and innovation.
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`5 Farzad Mostashari, M.D., The Paradox of Size: How Small, Independent Practices Can Thrive in Value-Based
`Care. ANNALS OF FAMILY MEDICINE, January 2016, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4709149/.
`6 See Mostashari, supra note 3; see also Richard Menger, et al., Commentary: Impact of Hospital and Health
`System Mergers and Acquisitions on the Practicing Neurosurgeon: Survey and Analysis from the Council of State
`Neurosurgical Societies Medical Director's Ad Hoc Representative Section, NEUROSURGERY, Vol. 82, Issue 6, June
`2018, pp. 157–63, https://academic.oup.com/neurosurgery/article/82/6/157/4935567 (discussing how hospital
`consolidation often increases medical costs for patients).
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`Importance of Reimbursement Rates
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`50. Unfortunately, as Empire is well aware, the Achilles heel of freestanding, private
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`neurosurgical practices is managed care reimbursement. Neurosurgical care, by its very
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`definition, is labor intensive, requires substantial expertise, and is high risk. Thus, the costs of
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`providing that care is very high – particularly in the New York metropolitan area – and
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`correspondingly high levels of managed care reimbursement is absolutely essential for these
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`practices to survive. Empire is entirely aware of this fact.
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`51.
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`In addition, the nature of freestanding, private neurosurgical practices make them
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`far more sensitive to managed care reimbursement levels than hospital-employed neurosurgical
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`care.
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`52. This is because, as Empire is well aware, hospitals are able to rely on other
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`sources of related managed care reimbursement than simply the reimbursement for professional
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`neurosurgical care.
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`53. Hospitals, for example, receive a facility fee when neurosurgical procedures are
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`performed in their operating and procedure rooms. This is in addition to the reimbursement they
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`receive for providing professional neurosurgical care. These facility fees are high, usually far
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`exceeding the charges for actual medical services.7
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`54.
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`In addition, hospitals receive reimbursement for other ancillary medical care
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`provided in connection with neurosurgical care, such as radiological services, anesthesia, and
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`rehabilitation. Thus, hospitals are not very dependent on the reimbursement for professional
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`neurosurgical care, as freestanding private groups are. In 2016, for every $1 of neurosurgery-
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`7 Sandra G. Boodman, Extra Health-Care Facility Fees Take Many Patients by Surprise, WASH. POST, Oct. 6,
`2009, https://www.washingtonpost.com/wp-dyn/content/article/2009/10/05/AR2009100502910.html.
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`specific reimbursement a hospital-based neurosurgeon generates, the hospital generates $14 in
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`other, related revenues.8
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`Empire’s Market Power
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`55. Like all healthcare, neurological surgery practices are dependent on
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`reimbursement from third-party healthcare payers to pay for the medically necessary and highly
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`complex services that they render to patients. Few patients have the economic means to pay for
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`high quality and complex neurosurgery services out of their own pockets.
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`56. The three major classifications for health care payers in the United States are (a)
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`commercial health insurance plans; (b) the Medicare program (which predominantly covers
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`those over 65 years old or disabled); and (c) the Medicaid (which covers persons who are
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`economically disadvantaged.
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`57.
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`In 2019, 55.6% of New York state residents were members of commercial health
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`insurance plans. As alleged above, in 2019, Empire’s share of the New York State commercial
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`health plan market was 21.6%. Its share of the New York City metro area commercial market
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`was 26.2%.9
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`58. Empire has a significant and ever-growing share of the Medicare Advantage
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`market in New York. It also has a significant share of the Medicaid market through its
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`community health care plans.
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`8 Bonnie Davis, Neurosurgery Reimbursement Shifts “Trickle Down” to Compensation Structures, NEUROSURGERY
`MARKET WATCH, http://harlequinna.com/hr/wp-content/uploads/2016/05/16-HR-Newsletter-v6-i1-LR.pdf.
`9 http://www.markfarrah.com/mfa-briefs/health-insurance-competition-and-commercial-market-share-in-three-new-
`york-metro-
`areas/#:~:text=Approximately%2013.3%20million%20people%20were,plan%20in%20New%20York%20MSAs.&t
`ext=Total%20commercial%20enrollment%20is%20nearly,11.4%25%20and%208.0%25%20respectively.(accessed
`Apr. 7, 2021).
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`Empire’s Ability to Dictate Reimbursement Rates
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`59. Generally, there are two types of relationships between a commercial health
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`insurance plan such as Empire and private, freestanding medical practices such as Neurological
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`Surgery. The first type of relationship is an “in-network” or “participating provider”
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`relationship. The second type of relationship is an “out-of-network” or “non-participating
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`provider” relationship.
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`60.
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`In an in-network relationship, the health plan accepts the practice’s clinicians as
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`credentialed participating providers, and the parties enter into a participating provider
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`agreement.
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`61. The parties’ participating provider agreement in an in-network relationship
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`governs the amount that the health plan will reimburse the provider for covered services, how
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`claims are submitted, how claims are paid, how disputes are resolved, and such issues as prior
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`approval and pre-certification.
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`62. The advantages that a medical practice derives from an in-network relationship
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`are (a) being listed in the health plans’ material as a participating provider; (b) receiving
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`reimbursement directly from the carrier; and (c) avoiding significant out-of-pocket costs for its
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`patients.
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`63. Empire has significant power and control over medical practices in an in-network
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`relationship. First, Empire decides, in essentially unfettered discretion, what practices to permit
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`to join its networks and what practices to turn down.
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`64. Then, even when it accepts a practice and begins “negotiating” a participating
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`provider agreement with that practice, Empire typically holds all the cards and dictates the terms
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`of the agreement on a take it or leave it basis.
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`65. Virtually no freestanding medical practice has
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`the ability
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`to negotiate
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`reimbursement rates or other terms of a participating provider agreement offered by Empire,
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`given its market power in New York.
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`66. The other relationship that Empire has with medical practices is an out-of-
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`network relationship. In that type of relationship, there is no contractual agreement between
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`Empire and the practice. Instead, whether, and to what extent, an out-of-network provider is
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`reimbursed for services that out-of-network providers render to Empire’s members and
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`beneficiaries is dictated by the terms of Empire’s plan documents. Out-of-network providers
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`have no say or control in the terms of these plan documents.
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`Empire’s Dramatic Reduction of Neurosurgery Reimbursement Rates
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`67. Over the last few years, Empire has dramatically reduced its reimbursement rates
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`for neurosurgery services in the New York metropolitan area.
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`68. Empire has accomplished this in several ways. First, for its in-network providers,
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`Empire has demanded extraordinarily low reimbursement rates for neurosurgery services on a
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`take-it-or-leave-it basis when negotiating participating provider agreements. It also has refused
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`to increase existing contractual in-network reimbursement rates notwithstanding significant
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`increases in expenses.
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`69. With regard to out-of-network providers, Empire has over the last several years,
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`consistently reduced or limited the “allowable amounts” that can be paid to out-of-network
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`providers for medically necessary neurosurgical services provided to their beneficiaries.
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`70. Because of this, the reimbursement levels offered in the New York metropolitan
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`area by the Empire for many complex neurosurgical procedures are now far below the costs
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`14
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`incurred by Neurological Surgery and other freestanding, private neurosurgical services for
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`performing those procedures.
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`71. While these decreased reimbursement levels apply across-the-board for all
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`professional neurosurgical services, the decreased reimbursement levels have had a disparately
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`negative impact on freestanding, private groups such as Neurological Surgery.
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`72. This is because, as Empire is well aware, hospitals have other sources of
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`reimbursement for neurosurgical care besides the reimbursement for the professional services.
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`73. Specifically, for every $1 in direct reimbursement that hospitals receive from
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`providing neurosurgery services, the hospitals receive $14 in additional ancillary revenue
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`generated from those neurosurgery services. Thus, the hospitals can accept an artificial lowering
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`of this $1 in direct neurosurgery reimbursement to 10¢, if the $14 in ancillary reimbursement is
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`preserved. Thus, the hospital-based groups are largely immune from the dramatically lowered,
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`fake, and manipulated lowered reimbursement rates.
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`74. Moreover, the hospitals can use this $14 to help defray the high costs of providing
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`neurosurgery services, while the freestanding practices such as Neurological Surgery are forced
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`to pay these ever-increasing costs out of the 10¢ of direct reimbursement.
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`75. As a result, Neurological Surgery and other freestanding practices are falling
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`further and further behind financially because of the dramatically declining reimbursement
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`rates, which no longer even remotely reflect the high costs of providing neurosurgery care. Put
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`simply, the direct neurosurgery reimbursement rates that Empire is forcing Neurological
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`Surgery and other freestanding groups to accept are artificial and in no way reflective of reality.
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`76. As Empire is well aware, the freestanding, private groups do not have these
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`alternative sources of reimbursement and thus bear the brunt of the decreased, below-cost
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`reimbursement.
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`Effects of Empire’s Actions
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`77. Because the freestanding, private practices are persistently receiving these fake
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`and manipulated reimbursements from Empire, many of these practices have been forced out of
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`business or forced to sell their practices to hospitals or multispecialty groups. This is Empire’s
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`intent.
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`78. For instance, from 2004 to 2011 hospital ownership of physician practices more
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`than doubled – from 24% of practices to 49%.10
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`79. Accordingly, many freestanding private neurosurgical practices have completely
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`left the market or been significantly hampered in their ability to compete. In a 2018 survey of
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`358 neurosurgeons, 92% noted consolidation in their healthcare market and 46.35% stated that
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`they had “lost control of their practice.”11 All, including Neurological Surgery, have lost
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`substantial sums of money.
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`80. This has not only harmed Neurological Surgery and the other freestanding, private
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`neurosurgical groups; it has significantly harmed competition in general in the relevant market
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`by consumers in the market. Empire is well aware of this fact.
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`81. This has resulted in decreased output and quality of neurosurgery and other
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`surgical services, higher prices, longer wait times, and loss of consumer choice.
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`82.
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` With the loss of many freestanding, private neurosurgery practices, patients have
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`been forced to crowd into and receive care from high-volume hospital-based neurosurgery
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`10 David M. Cutler and Fiona Scott Morton, Hospitals, Market Share, and Consolidation, JAMA, Nov. 13, 2013,
`https://pubmed.ncbi.nlm.nih.gov/24219952/.
`11 See Menger, supra note 4.
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`groups, which have far longer wait times, spend less time with patients, and provide care that is
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`far more impersonal. This has significantly affected consumer welfare.
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`Empire’s Anti-Competitive Motivations
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`83. As discussed above, nothing more than pure greed motivates Empire’s actions.
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`84. Empire is well aware that forcing freestanding surgical practices out of business
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`eliminates a major thorn in its side. These freestanding surgical practices fiercely advocate for
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`their patients and expose the fact that many of Empire’s health plans offer illusory benefits and
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`minimal coverage in many cases.
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`85. By educating patients in these way, patients put pressure on the health plans to
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`innovate, improve their offerings, and change their ways. This significantly promotes
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`competition among health plans in the market for purchasing health plan benefits.
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`86. Elimination of freestanding surgical practice will grind this competition to a halt,
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`and