Some physicians are taking drastic actions to block hospital consolidations, ranging from suing to starving.
Doctors in New York City and Los Angeles have gone to court in attempts to halt mergers, while a Niagara Falls, N.Y., physician has gone on a hunger strike to prevent the transfer of acute-care services from a merged facility.
The physicians' actions -- believed to be the first of their kind -- suggest doctors have had their fill of the massive hospital industry consolidation, which they say is hurting their ability to practice medicine.
At New York University's medical school, faculty physicians have filed a lawsuit to stop the merger of 824-bed NYU Medical Center with 1,086-bed Mount Sinai Medical Center, both in New York City.
The doctors don't want Mount Sinai's medical school to become an affiliate of NYU, which would happen under the proposed merger agreement. The deal, scheduled to be completed by the end of this month, would create a medical center with annual revenues of more than $2 billion.
"We'll be the first private university with two schools of medicine," said Bruce Bogart, president of the faculty council at the medical school. "I'm not sure how that will play out. We have questions, and we're not getting answers."
Bogart and others fear the roughly $95 million in grants that normally pour into the coffer of NYU's medical school will be shared with Mount Sinai. The deal also could dilute the power of the medical school's dean to appoint department heads within the hospital.
"We've only taken this (legal) action because we felt it was the 11th hour, very close to the 12th hour, of agreeing to this merger," Bogart said. "The university was hardening its position and becoming less and less forthcoming with solutions."
Not all NYU's faculty physicians support the lawsuit.
"Most of the hospitals in the region have already merged," said Herman Turndorf, M.D., professor and chairman of the department of anesthesiology at NYU. "Looking at the future, if we don't merge, our chances for continued development and even survival are slim."
Some faculty members worry that a merger of the two medical schools eventually will take place, Turndorf said. "They're paranoid about that," he said.
In fact, although NYU said it has no such plans, it isn't ruling out the possibility, spokesman Peter Ferrara said.
The NYU faculty council is basing its lawsuit, filed in state Supreme Court Jan. 8, on a resolution passed by NYU's board of trustees in 1979. The resolution requires the board to consult the faculty before reorganizing or terminating a school or program within the university.
The NYU case probably won't provoke any copycat lawsuits, said Thomas Campbell, a healthcare attorney with Gardner, Carton & Douglas in Chicago. "The faculty is involved in a governance squabble," Campbell said. "At the end of the day, the question is: Who runs the university? The faculty members would like to be fully consulted, but it's not their decision to make."
The university expects the definitive merger agreement to be signed Jan. 26 after the boards of trustees of both hospitals vote on it -- legal challenge or no legal challenge.
But first attorneys for all parties are meeting in court Jan. 20 so a judge can decide whether to grant the faculty council the temporary restraining order it wants to halt the merger.
Such physician challenges to hospital transactions are attempting to chart new legal territory and might be successful only as publicity tactics, said Scott Becker, a healthcare attorney in the Chicago office of Ross & Hardies.
"Physicians can use (lawsuits) to get the state attorney general more involved in reviewing the deal," Becker said.
That may be the case with Queen of Angels-Hollywood Presbyterian Medical Center in Los Angeles.
Staff physicians at the 409-bed hospital filed a lawsuit in addition to giving information to the state attorney general's office.
Santa Barbara, Calif.-based Tenet Healthcare Corp. was working on a deal to acquire Queen of Angels, a not-for-profit Roman Catholic hospital, when the suit was filed in Los Angeles County Superior Court Nov. 14. A month later, the hospital signed a definitive agreement to sell to Tenet for $86.4 million in cash and other interests. The transaction is pending.
The 700 staff physicians listed as plaintiffs worry that acquisition by a for-profit company will result in cuts in staff and charitable-care levels -- both of which would be detrimental to community health, said Moneim Fadali, M.D., president of the medical staff and a former member of the hospital's board of directors.
"This (lawsuit) was a measure of last resort," Fadali said. "The community (including staff doctors) should have been involved in these discussions from the beginning."
Whether physicians have the legal right to sue to block mergers is fast becoming a hot issue, some healthcare attorneys said.
"With a charitable trust (the legal structure of many not-for-profits), there's a very limited number of people who have the right to sue; namely, board of directors, state attorney general and possibly a special group that was a beneficiary when the hospital was created," Becker said.
"When the merger is challenged by a third party, like physicians, the judge will say that unless there are specific contractual agreements with the doctors at stake, they don't have the right to sue. The suit will get thrown out," he said.
But Fadali and another plaintiff, Santos Uy, M.D., doubled as directors on the board of Queen of Angels, giving them standing to sue.
The case has survived a motion to dismiss, although no trial date has been set. Fadali said he is hoping for a settlement.
But physicians don't need to go to court to cast a spotlight on what they believe are shady dealings.
An anesthesiologist in Niagara Falls, N.Y., has gone on a personal hunger strike to call attention to a deal that would leave 288-bed Niagara Falls Memorial Medical Center without acute services.
"I feel that the deal is not right," said Amarjid Virk, M.D., who stopped eating Jan. 8 after hearing that surgery and child delivery would be performed at Mount St. Mary's Hospital in Lewiston, 10 miles away. "Shifting the acute services doesn't make sense."
Mount St. Mary's, owned by Daughters of Charity, and Niagara Falls Memorial formed a mergerlike partnership last year under a joint operating company called Health System of Niagara. Plans for consolidating acute-care services at one facility didn't emerge until earlier this month, although the joint operating company was unveiled last summer.
Virk said he has the support of most physicians and nurses at Niagara Falls Memorial as well as the mayor and City Council in his hunger strike.
"It's had more of an effect than I thought," he said, noting that the hospital's board of trustees and medical staff agreed to an open meeting to discuss the transfer late last week. "No one is keeping quiet now."