A recent antitrust case brought by the U.S. Justice Department has forced a small association to drop its ethical guidelines and has left association members scratching their heads.
The government's suit and proposed settlement with the Association of Family Practice Residency Directors is designed to improve the quality and increase the quantity of medical residents in family practice. The guidelines that the Justice Department took issue with suggested how residency directors should conduct themselves.
But the association says the government doesn't really understand what the guidelines were designed to do or how they worked. Justice Department lawyers are focusing solely on economic issues rather than other considerations such as education and professionalism, the group contends.
Even though the association thinks its members acted properly, once it took a look at the legal costs of a court battle, it decided to run up the white flag and withdraw the ethical guidelines.
Cathy Englund, staff executive for the association, said the guidelines were developed in 1992 "with no intention to be any kind of restraint of trade or stifling of competition." The main goal was to create an environment in which residents could choose and complete their programs without disruption.
The "Guidelines on the Ethical Recruitment of Family Practice Residents" said residency programs should:
Avoid soliciting residents from other programs.
Advise the resident's program director if making an offer to a resident in another program.
Make any incentive or benefit offered to one resident available to all applicants.
Not provide inducements before the residency "match."
To the Justice Department, those guidelines were "a combination and conspiracy that was per se unlawful under Section 1 of the Sherman (Antitrust) Act."
Rebecca Dick, deputy director of operations in the antitrust division of the Justice Department, said even though the Association of Family Practice Residency Directors has only 427 members, it represents 95% of the family practice residency programs in the United States.
"They do control the residency programs through which family practice specialists must go. That's an increasingly important specialty, and there have been some shortages and some difficulty attracting medical students to that specialty."
Family practice is now the second-highest residency match after internal medicine. Each year about 2,800 young doctors go through the match in that specialty.
The guidelines restrained trade because residency directors could offer less money to get at least some residents, Dick said.
"We think consumers were ultimately harmed because if market forces had been allowed to play out, there would have been some more money available, and doctors in training would have chosen these programs," she said. Rural and underserved areas, especially, have trouble recruiting these residents.
Before the guidelines were imposed, Dick said, program directors could dangle pre-match inducements to attract "more and better residents than they got. We expect that situation to occur again."
But Mary Willard, M.D., director of family practice residency at Camden, N.J.-based West Jersey Health Systems, said the Justice Department is looking through the wrong end of its binoculars. What the government seems to want to create is free agency for medical residents, she said, and that will harm patients, programs and ultimately the residents themselves.
Unlike players in the NBA, residents aren't just employees of the programs they join. They are students, too. "That's an odd role," Willard said. "It's a different role than the Justice Department might be used to."
Economic interests of the residents are not the only values at stake here; professional and educational needs are at least as important.
Residents in most programs are supposed to build up their own panel of patients. Consistency and continuity of care are critical, both for the student and patient. If a resident leaves abruptly in the middle of a three-year program, "it creates a hole that needs to be filled. It's not good training for them," Willard said.
The guidelines were supposed to encourage the residents to discuss any potential moves with their program director and to curb "ungentlemanly and unprofessional behaviors."
"We never said they couldn't leave a program," Willard said. "Let's do it the right way, so everyone can be prepared, as opposed to someone walking into my office and saying, `Nice to be here, but in two weeks I'm going to another residency program.' Which has happened."
Residents are all paid the same within a program. The only income differentials are in the form of benefits, such as a $25,000 "moving allowance." Willard thinks inviting residents to compete against one another for these inducements detracts from the educational process and makes medical education more of a business. It creates chaos and uncertainty where order is needed.
Worse, she fears the loss of the guidelines will induce the opposite of what the government intends. "If you have resident free agency, you're jeopardizing any hospital or sponsor that would be unable to come up with the unlimited funds that students might request. Affluent sponsors and larger institutions will have the advantage," she said. Smaller community hospitals and rural areas will be left out in the cold.
The Association of Family Practice Residency Directors decided to back off partly because of changed circumstances. Three years ago, when the guidelines were written, family medicine had just achieved the lowest match in its history. Today, medical students are clamoring to get in. Even the association admits the guidelines are not as necessary anymore. "Family medicine is top dog right now," Englund said.
Englund thinks the end of the guidelines probably has implications for other residency specialties, but she's not sure what they are. The government came down on her group because it was the only one to put its professional guidelines in writing.
Robert Beran, vice president for the division of student affairs and education services at the American Academy of Medical Colleges, said the case affects only family practice residency directors. "At this juncture, the decision is not felt to have any direct effect on the match," he said.