Eye surgeons withdraw appeals against collusion finding

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Five eye surgeons and the Opthalmological Society have withdrawn their appeals against a High Court ruling that they banded together to stop the use of cheaper Australian doctors to cut waiting times for cataract surgery at Invercargill’s public hospital seven years ago.

The ruling in March this year found each had colluded to block competition, in breach of the anti-competition provisions of the Commerce Act.

The case was thought to be the first in New Zealand and Australia where members of a profession were found to have acted anti-competitively.

Commerce Commission chairwoman Paula Rebstock said the commission welcomed the conclusion of the long-running and “very significant” case under the Commerce Act.

“This is an important outcome for the application and development of New Zealand’s competition law for the benefit of New Zealanders,” she said.

“The case brings home to the medical profession, and professionals generally, that the Commerce Act applies to them.

“Professional associations must always be careful that they do not use their market power to restrict competition in their markets.

“This case was about the collective behaviour of senior professionals acting in their own self-interest to preserve their control over the waiting lists for their financial gain.” High Court judge Justice Gendall ordered the Ophthalmological Society to pay $100,000, Dr Brett Rogers to pay $25,000 and Dr Mark Elder to pay $5,000.

He also ordered that they and the other eye surgeons – Philip Boulton, Ken Tarr, and Richard Clemett – pay $467,870 towards the Commission’s legal costs.

The commission spent more than $1.8 million taking the case.

The society and four of the five ophthalmologists filed an appeal against the finding that they had contravened the Act, and the Commission filed an appeal against the level of penalties imposed, which they said were too low.

Ms Rebstock said the Commission decided to withdraw its appeal against the penalties imposed when the other parties withdrew their appeals against the High Court findings. 

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