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The Seventh Circuit has already held that Principle 3 escapes per se treatment because it involves a medical ethic which nonfrivolously addresses the importance of scientific method, a subject well within the natural ambit of a medical association. The plaintiffs argue that the Supreme Court's decision in F.T.C. v. Indiana Federation of Dentists, 106 S. Ct. 2009 (1986), decided after Wilk compels application of the per se analysis. I disagree. First, Indiana Dentists itself was decided under a rule of reason analysis. Although the Supreme Court rejected the dentists' rationale that the withholding of x-rays in that case was justifiable as being in the best interests of patients, and specifically said that such a purported justification was legally and factually marred, the Court did not apply a per se rule.
Indiana Dentists is quite like National Society of Professional Engineers v. United States, 435 U.S. 679 (1978). In both cases the Supreme Court refused to allow professional competitors to deprive consumers of information they desired, and in both cases the court rejected the professionals' purported consumer welfare justifications for the restraint. I believe the result in Indiana Dentists was based on the some rationale that decided Professional Engineers. I do not read ' Indiana Dentists as requiring a per se analysis. The plaintiffs also urge that Indiana Dentists eliminates the patient core defense created by the Seventh Circuit in Wilk. The Supreme Court did not address the specific issue of whether patient care defense on the facts in this case would be allowed, and since Indiana Dentists is much more like Professional Engineers than this case, I believe I must follow Wilk.
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