By Karen S. Sibert, MD, FASA
November 20, 2020
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 (asamonitor.pub/3p3IgVo) 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” (asamonitor.pub/2TXfZl2). According to one estimate, more anesthesiologists are employed (55%) (asamonitor.pub/38eaTc9) today than ever before, and this trend is accelerating as private practices are absorbed by large health care systems in mergers and acquisitions.
Hospitalists in Oregon (asamonitor.pub/3l0YAnp) 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 (asamonitor.pub/2TXfZl2).
The important distinction here is that within 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 (N Engl J Med 2001; 345:1141-44) as a central provision of the National Labor Relations Act.
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 (N Engl J Med 2001; 345:1141-44) 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 (asamonitor.pub/3kWpNHH), 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, Governor 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 (Am J Public Health 1979; 69:437-43) 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 health care 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” (asamonitor.pub/3ewnCbe), 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, and 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 (BMJ 2015;351:h6231) 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(asamonitor.pub/3mW7jb2) 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?