Private health giant Ramsay Health Care has defeated a legal bid by the competition watchdog ACCC which alleged the $11 billion company tried to use its market power to deter doctors who planned to set up a rival day hospital facility.
The Federal court has dismissed a case brought by the ACCC for alleged misuse of market power and exclusive dealing in relation to a group of specialists who planned to establish a competing private day surgery facility in Coffs Harbour.
In 2015 Ramsay ran the only private hospital and private day surgery facilities in Coffs Harbour. At that time a group of specialists who had lists at the hospital, including a colorectal surgeon, a urologist and an ophthalmologist, were planning the development of a new day surgery facility in the area that would compete with Ramsay’s one.
The ACCC alleged that senior Ramsay executives told the breakaway doctors that their access to operating theatre time at the Ramsay-operated Baringa hospital would be substantially reduced or withdrawn if they proceeded with their plans.
The court heard that a Ramsay executive told one of the doctors that if he took away the more lucrative day surgery endoscopy work then the company would have to consider the ‘balance’ of less profitable in-patient surgery when allocating lists.
The ACCC alleged that the doctor was told: “if he chose to take his day surgery away from Ramsay, Ramsay would need to find a balance by stopping his main theatre cases and that Ramsay would need to look at the business case for his theatre time if he took his endoscopies away.”
But the Court ruled there was insufficient evidence that Ramsay made threats to surgeons, or that the company’s behaviour stifled competition, given that the doctors continued planning the new day surgery for many months after the discussions with Ramsay.
The ACCC said it would now consider the implications of the dismissed case.
“The ACCC brought this case because it raised important issues regarding the alleged conduct of a private hospital operator with a substantial degree of market power seeking to deter new entry, and what constitutes permissible competitive conduct in these circumstances,” ACCC Chair Rod Sims said.
“We will now carefully consider the judgment,” Mr Sims said.