Picture: ISTOCK
Picture: ISTOCK

The Council for Medical Schemes (CMS) has provided little clarity about the nature of its price-fixing complaint against specialists, the South African Medical Association (Sama) argued at the Competition Tribunal on Tuesday.

Advocate Shem Syman SC, for Sama, picked apart the CMS’s evidence of price-fixing among specialists, saying it was unclear what the regulator was complaining about.

The CMS, which regulates the country’s medical schemes industry, has been locked in the long-running dispute with Sama since 2012.

Syman said the CMS could not deliver a sound argument and relied on the Competition Commission’s reluctance to ignore the case.

He said Sama wanted the tribunal to dismiss the complaint because the CMS had failed to present compelling evidence of price-fixing.

He went on to defend the relationship between Sama and the South African Paediatric Association, pointing out that the CMS did not provide any evidence that the nature of the relationship would give rise to collusion or price-fixing.

The CMS had failed to produce evidence of protocol, agreements or arrangements between the two parties that could be considered collusionary on their part.

Alicia Schoeman, the CMS’s legal adviser, said on Tuesday that Sama’s argument was flawed because the CMS only regulated medical schemes, not doctors, who were regulated by the Healthcare Professionals Councils of SA.

Schoeman said there was no way the CMS could have forced Sama to provide information or to give insight into how internal decisions were made.

But Syman argued the CMS has failed to produce compelling evidence that would give rise to a competition case. In closing arguments, he said the five-year legal fight had been "expensive, wasteful and time-consuming".

However, Rosalind Lake, a director at Norton Rose Fulbright and one of the CMS’s legal advisers, said the regulator wanted Sama to answer to the case and it was not appropriate, nor in the interest of consumers, to dismiss a competition price-fixing complaint.

Rosalind Lake
Rosalind Lake

Lake said that contrary to Sama’s assertions that there
was not enough information to make a case, the CMS had addressed Sama’s request for more information on a number of occasions.

The main cause of the dispute is the manner in which Sama published regulations on how specialist doctors would bill patients.

The regulations entitled neonatologists and paediatricians to bill patients an extra 50% in addition to the set tariff payable for premature babies requiring intensive care.

The South African Paediatric Association endorsed this.

But the CMS considers this to constitute price-fixing — both direct and indirect.

The CMS has also taken issue with the billing guidelines determined by the Society for Cardiothoracic Surgeons of South Africa (Soctsa) in 2009.

Sama and Soctsa approved and circulated these guidelines in 2010.

The CMS contends that this conduct amounted to engaging in horizontal practices and constituted price-fixing.

Advocate Steven Budlender, for the CMS, said there was collusion between Sama and its member associations because their horizontal relationship facilitated colluding.

Budlender said this harmed beneficiaries who had to pay more for paediatric and cardiologist services.

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