Judge accepts comments, not intervenors, in Partners case

Suffolk Superior Court Judge Janet Sanders accepts comments on the Attorney General’s consent judgment with Partners Healthcare.

First Assistant Attorney General Christopher Barry-Smith appears before Suffolk Superior Court Judge Janet Sanders.

A Suffolk Superior Court judge on Monday agreed to accept comments on a controversial antitrust consent agreement negotiated by Attorney General Martha Coakley and Partners Healthcare but rejected a bid by competing hospital systems to intervene in the case.

The decision gave Coakley and Partners pretty much what they wanted, but Judge Janet Sanders left unresolved how she would use the comments she receives and what standard she would use in deciding whether to approve or disapprove the consent agreement.

Feeling her way in what lawyers described as a unique situation, Sanders seemed reluctant to go along with pleas from lawyers for Coakley and Partners to limit the comment period and issue a decision within a matter of weeks.

“What’s the rush?” she asked at one point.

Christopher Barry-Smith, a first assistant attorney general, said “there is no abstract need for speed” but cautioned the judge that her only role is to decide whether the consent agreement is lawful and not adverse to the public interest. He suggested the judge would be overstepping her authority if she interfered with Coakley’s prosecutorial discretion.

Ultimately, Sanders denied a bid by Atrius Health, Beth Israel Deaconess Medical Center, Lahey Health, and Tufts Medical Center to intervene in the case. She then ruled that comments on the consent agreement from the hospital systems and anyone else should be filed with Coakley’s office by July 21 and the comments along with a response from Coakley’s staff should be submitted to her by Aug. 1. She scheduled a hearing with the parties for Aug. 5.

The consent agreement would permit Partners, already by far the largest health care system in the state, to acquire South Shore Hospital and two Hallmark hospitals in Medford and Wakefield. But the agreement would cap at the rate of general inflation how much the Boston-based health care system could charge for its services, prohibit further expansion for most of the next decade, and allow insurance plans to negotiate with Partners as a whole or with individual hospitals within the system on rates. The last provision is called component contracting.

William Matlack, the chief of Coakley’s antitrust division, said the attorney general believes the agreement provides more and broader protection for health care consumers than would a lawsuit attempting to block the acquisitions.

Andrea Agathoklis Murino, an antitrust attorney from Washington, DC, representing Atrius, Lahey, Beth Israel, and Tufts, said the antitrust remedies agreed to by Coakley are fundamentally flawed. She said component contracting has been rejected by federal antitrust regulators and added that price caps do not work.

Barry-Smith then read what he said was an authorized statement from the US Justice Department, which worked with the attorney general on its investigation of Partners, saying that the agency supports the consent agreement.

The consent agreement is yet another instance where Coakley’s handling of her job as attorney general is spilling over into her campaign for governor. Coakley’s office has been out front in the past in highlighting how Partners has used its muscle in the health care marketplace to pad its profits. But instead of fighting the bid by Partners to expand – as the state’s Health Policy Commission urged her to do — she decided to agree to the acquisitions with various conditions.

Andrea Agathoklis Murino, an attorney from Washington, DC, represented a group of Partners competitors at the hearing.
Bruce Sokler, an attorney at Mintz Levin who represents Partners, urged quick action on the consent agreement but said it was not because Partners got everything it wanted. “No one is popping champagne corks over at Partners,” he said.

Sokler also urged the judge to largely ignore what the other hospitals were saying about the consent agreement. “The intervenors are our competitors. Our competitors have private interests. They’re not pursuing the public interest,” he said.

The attorney representing South Shore Hospital urged the judge to act quickly because the hospital cannot survive on its own. The attorney noted that hospitals across the state are merging to provide coordinated care to patients within a budget and South Shore needs partners to make that approach work.

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Bruce Mohl

Editor, CommonWealth

About Bruce Mohl

Bruce Mohl is the editor of CommonWealth magazine. Bruce came to CommonWealth from the Boston Globe, where he spent nearly 30 years in a wide variety of positions covering business and politics. He covered the Massachusetts State House and served as the Globe’s State House bureau chief in the late 1980s. He also reported for the Globe’s Spotlight Team, winning a Loeb award in 1992 for coverage of conflicts of interest in the state’s pension system. He served as the Globe’s political editor in 1994 and went on to cover consumer issues for the newspaper. At CommonWealth, Bruce helped launch the magazine’s website and has written about a wide range of issues with a special focus on politics, tax policy, energy, and gambling. Bruce is a graduate of Ohio Wesleyan University and the Fletcher School of Law and Diplomacy at Tufts University. He lives in Dorchester.

About Bruce Mohl

Bruce Mohl is the editor of CommonWealth magazine. Bruce came to CommonWealth from the Boston Globe, where he spent nearly 30 years in a wide variety of positions covering business and politics. He covered the Massachusetts State House and served as the Globe’s State House bureau chief in the late 1980s. He also reported for the Globe’s Spotlight Team, winning a Loeb award in 1992 for coverage of conflicts of interest in the state’s pension system. He served as the Globe’s political editor in 1994 and went on to cover consumer issues for the newspaper. At CommonWealth, Bruce helped launch the magazine’s website and has written about a wide range of issues with a special focus on politics, tax policy, energy, and gambling. Bruce is a graduate of Ohio Wesleyan University and the Fletcher School of Law and Diplomacy at Tufts University. He lives in Dorchester.

He said South Shore spent years evaluating potential partners, including most of the health care systems who are now challenging the hospital’s merger with Partners. He said South Shore settled on Partners largely because of its strong reputation and its willingness to invest $200 million in the hospital.

He said there is intense competition in the market, with nearby hospitals on the South Shore being gobbled up by Beth Israel Deaconness. He also noted that three of the four hospital systems seeking to intervene in the case had explored but then called off a merger or their own earlier this year.