Is it time to unionize?
Remember the dark days of the pandemic in March and April, when the true risk of caring for COVID patients started to become clear? Remember when you could be censured by a nursing supervisor or administrator for wearing a mask in public areas lest you frighten patients or visitors?
Right around then, a third-year resident at UCLA decided to wear a mask wherever he went in the hospital, as testing wasn’t readily available yet for patients, and visitors still had full access. Someone with a clipboard stopped him and said he couldn’t wear a mask in the hallways. The resident politely responded that yes, he could. Why? Because his union representative said so. The discussion ended there.
The resident enjoyed backup that his attendings lacked because all UCLA residents are members of the Committee on Interns and Residents/SEIU, a local of the Service Employees International Union (SEIU). This union represents more than 17,000 trainees in six states and the District of Columbia.
As CMS threatens further pay cuts for anesthesiology services and other third-party payers are likely to follow suit, many attending anesthesiologists are asking: Why can’t we form a union? Alternatively, why can’t the ASA function like a union and negotiate on our behalf?
Are you an employee?
You may be eligible to unionize if you are an employee without the power to “hire, fire, or make managerial decisions.” According to one estimate, more anesthesiologists are employed (55%) today than ever before, and this trend is accelerating as private practices are absorbed by large healthcare systems in mergers and acquisitions.
Hospitalists in Oregon elected in 2015 to form a union affiliated with the American Federation of Teachers. Primary care physicians employed by clinics in Washington State voted to be represented by the United Salaried Physicians and Dentists Union. Their vote to unionize was challenged by their employer on the grounds that some of their work was “supervisory”, but the National Labor Relations Board (NLRB) upheld the physicians’ argument that their clinical supervision duties did not constitute managerial decisions.
The important distinction here is that within the ASA, some members would meet the NLRB’s definition of employees – even if they direct the clinical work of anesthesiologist assistants or nurse anesthetists – because they are directly employed by hospitals, health centers, or foundations. They could vote to unionize.
Other ASA members, whether they work within a group partnership or on a 1099 basis, would be classified as self-employed or as independent contractors, depending on exactly how their contracts are written. A third group – those in leadership and managerial roles, such as department chairs – would be considered supervisors or managers. All these are excluded from collective bargaining as a central provision of the National Labor Relations Act.
The ASA can advocate for fair physician payment, but an ASA attempt to negotiate payment rates on behalf of all its members would constitute “a horizontal agreement among competitors to fix payment” and would violate antitrust law.
Could we strike without a union?
Anesthesiologists and other physicians can act collectively without any union affiliation, and they have done so before. If no union is involved, it doesn’t matter whether or not they are employees.
In California during the 1960s and 70s, jury awards for pain and suffering in medical malpractice cases rose exponentially, and malpractice insurance premiums rose too. By 1975, insurance companies either withdrew from the California market or raised anesthesia malpractice premiums by as much as 350%. (These events have been described in detail in an excellent column by Drs. Jane Moon and Mark Singleton, published on the website of the California Society of Anesthesiologists on May 13.)
Some anesthesiologists left the state or retired, and others decided to practice without coverage. In desperation, California anesthesiology leaders headed for Sacramento to demand legislative change. Anesthesiologists and surgeons in northern California began a dramatic protest by refusing for weeks to perform elective surgeries. Finally, on September 23, 1975, Gov. Jerry Brown signed the landmark Medical Injury Compensation Reform Act (MICRA), which capped “pain and suffering” awards at $250,000. Despite repeated challenges, MICRA still stands.
At first MICRA was vilified as unconstitutional until the California Supreme Court ruled to uphold it. While the court deliberated, anesthesiologists and surgeons in Los Angeles began their own month-long work slowdown in January 1976, again refusing to perform elective operations. This strike was studied extensively to determine if patients were harmed as a consequence. Though an estimated 25% to 50% of physicians participated, patient mortality decreased overall, and surveys by UCLA and the LA Times showed no significant negative effect on access to care.
Yes, but is it ethical?
Physicians today in many specialties are deeply unhappy about working conditions, production pressure, and how powerless they feel. The electronic health record is associated with burnout and disconnection from direct patient care. Could unionization be the best way forward, now that more and more physicians are employees of large healthcare systems?
According to Dr. Eric Topol, cardiologist and author, the answer to that question is yes. He believes it’s high time for a “new organization of doctors that has nothing to do with the business of medicine and everything to do with promoting the health of patients.” In his article titled “Why Doctors Should Organize”, published in the New Yorker last year, Dr. Topol asked, “Who will be in charge of our health as we move forward – doctors or their managers?”
The trouble with the word “union” is that it evokes the image of strikers picketing for better pay. The public will never sympathize with physicians if payment is our only cause. But patients and physicians might get behind “industrial action” in support of more time spent with patients, more and better PPE, fewer hours wasted with poorly designed electronic records – as long as patients are guaranteed that emergency coverage is always available.
Maybe it’s time to try a different approach. The right to organize and strike is supported by the United Nations and international law. Physician work stoppages or slowdowns can be conducted ethically, without patient harm.
Here’s one appealing idea for collective action. Take full care of the patients but document only the clinical care. Don’t waste your time ticking all the irrelevant boxes in the electronic record, which is a tool for billing and compliance-checking, not for patient care.
This kind of collective action could get some real attention from health systems and large employers because it would affect their billing and revenue. They are the ones with the size and clout to negotiate better contracts with third-party payers, to demand better electronic health records, and to push back against regulation creep. We love to blame insurers, but employers share responsibility for physician exploitation and demoralization. As the AMA Journal of Ethics has stated, “It is morally acceptable for physicians to unionize and employ collective action, including striking, as long as patients’ best interests are their reason for doing so.”
Where do I sign?
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This article originally appeared in the December 2020 edition of the ASA Monitor
9 COMMENTS
I am generally anti-union. The idea initially sounds good, but too often they evolve into a corrupt system which charges outrageous dues, tries to influence politics without the consent of the members and somehow loses touch with the members. In our hospital, I recall when the Teamsters tried to unionize the nurses. Now what do the teamsters (aren’t they truckdrivers?) have to do with medicine? I think it would look bad if physicians unionized since despite the lofty goals of such a move, the public would just look at it as a way to get more money.
[Reply]Thank you. Nicely written article (as usual from Karen Sibert!) and an important topic.
This was discussed in the ASA online community and with many supportive comments.
I have some family experience with public sector unions which isn’t so happy. Appreciate the comments of Dr. Koss. Think on whether this is a long term solution or examples for other professionals. Would unionization ultimately serve patients and health care in general? If SEIU membership becomes a requirement for professional workspace employment we may have other issues to think on.
[Reply]I think unionization is a terrific idea. As I look back at 35 years in medicine I see a marked decline in patient care, systematic disempowerment of physicians, decline in physician satisfaction and early retirement. Many of our brightest young people do not enter medicine because of the many downsides they currently see including control and salary diversion by non-clinical managers. It is now time to begin talking amongst ourselves and progressing to forming a national union so we can exert collective bargaining and begin to minimize the encroachment of non-clinical duties which have served only to better the incomes of large organizations and ultimately detract from patient care. The age old model of physicians who shared their knowledge, judgment, and experience with one another was clearly the best model for patient care. We need to know and understand that, teach our younger colleagues the importance of collaboration and return to a system which allows physicians the time, opportunity and incentive to engage, and direct patient care.
[Reply]Thanks again for another useful article, now related to such hot topic.
I’m anesthesiologist from Argentina, a very ‘unionized’ nation. Unions often end in corrupt practices, as Neal Koss wrote in a comment above. BUT it would be interesting to study Buenos Aires and Argentina Anesthesia Society and National Federation Society history and wide activities: without oficially being a Union, it developed the only well paid and scientifically and teaching society and medical specialty, an unavoidable reference to any other medical specialization in terms of better fees and better teaching activities. Knowing the risks implied of a ‘union-like’ activity, maybe the present economic circumstances, require some way of gathering and defensive activities. The ‘AAARBA’ is well known and respected. I can´t see any other succesful way to protect the fees of our stressful activity. Anyway, I agree with comments above, also pertinent and appropriate to the point.
Short answer – Yes and No. The system needs a change and the agencies that play the “controlling role” need to be systemically audited for fraud. Unfortunately, this is an impossible task, but luckily good docs will always exist and help heal no matter what the challenge. Some great points there by Dr. Obrecht. Thank you!
[Reply]Thank you, Dr. Sibert, for sharing your ideas. I have spent the last few years fantasizing about a national physicians union. The problem (well one of them anyhow) with our system is that doctors are compartmentalized and isolated from one another in ways that prevent collective action. There is systematized bullying of both physicians and patients by insurance companies, hospital systems, Big Pharma and by our government who is in bed with all of them. It is our duty to stand up for ourselves and our patients and refuse to allow the doctor-patient relationship to be commoditized for profit by these bullies. Doctors and Patients have to come together to take back health care. Thank you for being a conversation starter and for inspiring MDs like myself to continue the conversation. I would love it if you visited my blog (notacommodity.com) and let me know your thoughts!
[Reply]It has been said that the three groups of people who have never been able to unionize are physicians, Taxi Cab drivers and prostitutes.
But New York cab drivers unionized in 2011 and many prostitutes unionized in 1999.
[Reply]I agree with Dr. Obrecht…….The time to be concerned about the significant deterioration of our health care system is like the ship that sailed decades ago….we stood by and waved from the dock without fully realizing what we let slip away. What we see and experience today was a prediction written on the wall and we we were all too busy in our private lives and earning a living to read the message and act appropriately. We let hospital systems, insurance companies and other health care workers take away our power, decision making ability and the respect patients had for us as “providers” (a word I hated when introduced by managed care systems). The time of the independent private practitioner (which my husband and I were until a year ago) is long gone and with it went our ability to appropriately care for patients as they deserve. Being an employed physician will NEVER be the same as working independently and while the transition could have been a reasonable one it has indeed become a nightmare. Large hospital systems will never care for its employed physicians and views us as eminently replaceable by “mid-level providers” and health care employees of all sorts even physicians whose training is questionable…..I have always believed we needed a union and a unified voice but busy hardworking doctors in our state missed the opportunity and were skeptical of its potential efficacy. Greed has also been a big part of this problem, both on the side of the earning doctors but mostly on the side of the huge health care systems, insurance companies and pharmaceutical companies we now have to deal with. It is long past the time to stand up and fight for what is right in health care; but I am doubtful the new generation of physicians is any more up the task than we were! Good luck!
[Reply]“Is it ethical to unionize?”
Really?
We have seen the destruction of our profession. Our autonomy has been stolen.
Standards have crumbled as nurses and mid levels have been granted our privileges and our pay with minimal training.
And all of this while we are made powerless by Stark regulations and the ACA.
This was supposedly for the greater good and to reduce cost.
The end result was the enrichment of insurance companies, hospitals, and administrators. And costs didn’t go down.
Now ask yourself again…is it ethical to unionize?
Really?
[Reply]