In a legal blow to the efforts of physician unions, the Federation of Physicians & Dentists in June agreed to stop coordinating negotiations anywhere in the country, settling a 2005 lawsuit that alleged the organization illegally drove up fees on behalf of 120 Cincinnati-area OB/GYNs, according to an antitrust settlement announced by the Justice Department.
The settlement bars the federation from relaying contract terms between physicians and payers, representing a physician with a payer, reviewing contracts, communicating with physicians regarding contracts or terms, and training physicians about contracts and negotiating with payers. The prohibitions dont apply to physicians who belong to recognized bargaining units affiliated with the federation. The Justice Department sued the 8,500-member federation, an employee and three physicians in U.S. District Court in Cincinnati in June 2005. The physicians settled at that time. The agreement is subject to public comment and court approval.
The federation admitted no wrongdoing in the settlement, says Jack Seddon, longtime executive director of the Tallahassee, Fla.-based union. Seddon remains combative about the allegations.
We could no longer fight it economically, so we reached this consent decree, Seddon says. If anyone ought to be embarrassed, it ought to be the Department of Justice for their disparate treatment under the antitrust laws. They accuse (physicians) with violating antitrust laws while they let the insurance industry run rampant with respect to doing whatever they may so desire without true negotiations with physicians.
Prior to settling the lawsuit, Seddon suggested that many doctors actively avoid unions because of the perceived threat of antitrust action by an aggressive Justice Department. Others, he says, arent even aware that unions are an option for employed physicians. Those two issues, he says, help explain why union membership among physicians has stalled at somewhere between 40,000 and 45,000 since the turn of the century.
I talk to doctors who dont even know there are unions, Seddon says. Theres also a real sense of fear among doctors. Theyre afraid if they talk to each other on a golf course theyll be arrested and charged with a violation of antitrust laws. It scares the hell out of physicians, and that obviously doesnt help the union movement.
Resuscitating the movement?
One of the more aggressive unionsthe Doctors Council, with about 4,000 membersdid score a significant win for 220 doctors at 525-bed Elmhurst Hospital Center in New York when the physicians voted to join a union.
The decision came after long and frustrating struggles over contract issues for the doctors. In a near-unanimous vote, doctors joined the well-established council, which has organized 11 medical facilities during the past five years. In October 2006, the new union members at Elmhurst enjoyed the fruits of their labora three-year pact that provides a nearly 11% compounded pay increase through July 2008, a new minimum salary of $125,000 and a 25% jump in overtime pay.
Frederick Gonzalez, M.D., chief of obstetrics at Elmhurst, says there is no way the doctors would have obtained such a healthy contract without the involvement of the union.
Today we have more than 200 people speaking with one voice, he says. I think (joining the union) was the smart thing to do. We saw what they did for other doctors. We felt it would be a lot better off for us to be bargaining as a unit under the umbrella of the Doctors Council. I think we got a good contract.
Despite the success story at Elmhurst, the number of doctors who carry union cards in this country has remained fairly stagnant in recent years, even in light of aggressive efforts by unions like the Doctors Council and the American Medical Associationthe nations largest trade association for physicians, which spent millions of dollars in a failed effort to create a national union for its members.
In mid-2004, after spending at least $3.6 million on a venture that managed to sign up about 40 doctors, the AMA pulled the plug on the ill-fated Physicians for Responsible Negotiation. It was never able to gain traction and suffered criticism from more-established unions, whose officials questioned the AMAs commitment to collective bargaining because of the associations explicit refusal to condone organized labors toughest bargaining tool: a strike.
Seddon suggests that radical step might be just what the union-seeking doctor ordered: I think doctors ought to lay down their scalpels for about two months, and just bring the government to realize that its got a healthcare crisis that is killing patients and putting doctors out of business. You talk to doctors today, and theyre telling their kids: Dont go into medicine. Become an attorney.
Numbers remain small
Labor law experts say that there is little evidence of a revival in union activity among Americas physicians.
My sense is that interest in unions as a solution has dropped off, says Philip Lebowitz, a partner in the Philadelphia office of the law firm Duane Morris who has expertise in labor law and physician-practice issues. The Justice Department has taken the position that doctors are not different than any other business in terms of prohibitions against price-fixing, he says. It remains the case that physicians in private practice who are not part of the same group are prohibited from joining together to negotiate reimbursement rates.
Doctors across the country have heard that message loud and clear, Lebowitz says.
The number of unionized doctors remains a very small percentage of the estimated 885,000 licensed U.S. physicians, most of whom practice independently and are prohibited by federal antitrust laws from bargaining collectively. Of the approximately 700,000 physicians who actually work in patient-care settings, estimates suggest that only about 15% to 20% are employed and thus eligible for collective bargaining.
Its stalled, if not diminishedits gone into the woodwork, says G. Roger King, a labor lawyer with Jones Day in San Diego. With issues like antitrust concerns, there just isnt interest or support out there.
For union organizers still hoping to gain momentum, the antitrust lawsuit against the Federation of Physicians & Dentists isnt the only recent case to hamper that progress. In 2001, the U.S. Supreme Court ruled that supervising nurses at private hospitals could not join unionsa decision that also strictly limited the collective-bargaining rights of doctors whose duties often overlap in much the same way as those of nurses. At the time, Donald Palmisano, M.D., a trustee of the AMA who later served as AMA president 2003-04, said the decision would make it difficult, if not impossible, for most employed physicians in the private sector to use collective bargaining as an advocacy tool. That court decision, sources say, was the beginning of the end for the AMAs in-house union.
Another ruling that charge nurses qualify as supervisors came down from the National Labor Relations Board in October 2006a decision that may exclude many nurses from unionizing. That ruling could have a similar impact on physicians, though neither case specifically addressed that issue.
Potentially, it could have implications, says Barry Liebowitz, M.D., president of the Doctors Council. But this completely focused on the nurses. In fact, no case in front of the NLRB has talked about doctors and supervisory duties.
On the back burner for now
For his part, Seddon says that such outside factors have played a role in the leveling off of union interest among doctors and the lack of action by lawmakers who appear unwilling to relax antitrust regulations.
I dont think the efforts have stalled, he says. I think that because of whats happened with 9/11 and Iraq, the collective-bargaining law certainly lost steam. We will be pursuing collective bargaining for doctors again, but with all the crises going on, its on the back burner right now.
Robert Weinmann, M.D., who stepped down in September 2006 as president of the Oakland, Calif.-based Union of American Physicians and Dentists after 17 years at the helm, also thinks the union movement among doctors canand willbe resuscitated. Doctors are getting squeezed from just about all sides these days, he says. It may be getting to the point where the best ally they can have in tough times will be a strong union fighting for their rights, both economically and professionally.
I think the numbers are going to increase and its going to start looking up for the unions as doctors start to discover that they have fewer and fewer friends out there, Weinmann says. When doctors find out that (hospital and group-practice) administrators dont care whether they have a nurse practitioner or a doctor taking care of their patients, theyll probably be more inclined to join a union.
With additional reporting by former Modern Physician reporter Michael Romano.
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