Thank you to Eric E. Johnson of the University of Oklahoma College of Law for putting together a Second Mini-Conference on Coronavirus and Law on April 15, 2020. Eric was gracious enough to allow me to choose to talk about Acute Care Hospital Bed Supply in the Time of Pandemic. All of the other participants were gracious enough to listen and ask questions, in turn. I thank them as well.
I chose acute care hospital bed supply as my topic because of a string of op eds I noted from around the country faulting earlier hospital merger and acquisition policies that, apparently, created the tight supply of acute care hospital beds laid bare by Coronavirus emergent hospitalizations. Commentators in Boston, Chicago, New York, and San Francisco all implied that acute care hospital bed supply was too tight, in light of past decisions to allow mergers or acquisitions or closures. All of this led me to the question of just how tight we want acute care hospital bed supply to be?
Don't look in conventional antitrust law on merger analysis for language on leaving some excess acute care bed supply in the system in preparation for surge or pandemic needs, because you won't find it. This also made we wonder why we have no way to talk about these things or why we lack the vocabulary to ask these questions.
Practice experience reminds me of a few situations where opponents of mergers had mixed in, along with other grounds, the cry that wringing all the excess acute care bed capacity of the system would leave us ill prepared for another 1918-style flu epidemic or 1908-style earthquake. Such arguments typically gained little traction, as there was no consensus that surge or pandemic emergency capacity had any role to play in conventional merger analysis's focus on technical and scale efficiency in acute care hospitals and the goal of greater competition by wringing excess supply out of the system.
But we are humbled now or as humbled as we may be for some time by the incredible surge in demand the leaking stories of people, particularly people who are low income, being sent home with fever, pneumonia, and instructions to self-monitor which turned into instructions to self-monitor unto death. Is what was formerly seen as excess capacity really idle capacity necessary for pandemic or mass disaster preparation and ought merger analysis take some cognizance of the interest of the acute care hospital bed consuming public in having some flex in the bed supply?
I am still thinking about this. x-posted: lawgarithmic.com