In this edition of Health Law Alert, Ober|Kaler's Antitrust Group presents several articles addressing the recent wave of hospital and physician mergers, and the evaluation and treatment of those mergers by the Federal Trade Commission (FTC), U.S. Department of Justice, Antitrust Division (DOJ), and state attorneys general (collectively, the Agencies) in several recent investigations and litigated challenges resulting in published decisions or consent decrees.

Merger activity between hospitals, health systems, and physician groups has been on the rise in the last few years. In 2011, there were 92 transactions involving 212 hospitals, and in 2009 and 2010 there were 85 and 89 mergers, respectively. In addition to hospital-merger activity, physician groups have been increasingly affiliating with hospitals, whether by full merger resulting in hospital employment or less than full integration, such as joint ventures. For example, in the cardiology specialty, a consulting firm, MedAxiom, recently surveyed 144 cardiologist practice groups, and of those, 38.2 percent were fully integrated with hospitals by the fall of 2011, up from just 14.3 percent in the spring of 2010. What is driving the recent increase in hospital and physician-group merger and affiliation activity?