The recent hullabaloo over the movie Sicko revolves around the allegedly excellent and egalitarian healthcare delivery in socialized countries, specifically Canada, France and the U.K. Is it only a coincidence that most of the doctors there are unionized? The poster doc of this movie was a young British internist who works for the National Health Service, which has had unionized doctors since its inception in the '40s. Is the NHS where the U.S. is headed? If not, can physician unions survive in our current managed-care environment?
First, a brief look at the history of physician unions and their current status. In the U.S. they arose in the 70s as a result of the increasing financial regulation by Medicare and managed-care organizations. These restrictions paralleled the devolution of the professional physician to a provider of care. Private employee unions are legally empowered by the National Labor Relations Act of 1935, while public employee unions are established under state and federal law. Unions differ from guilds in that once organized, their members enjoy the right to collectively bargain with their employer and engage in certain constitutionally protected activities. There are currently only a handful of physician unions in the U.S., representing about 30,000 (or 3%) of U.S. physicians.
With the obvious advantage of collective bargaining with a payer or employer, one may rightly ask Why such low physician participation? Heres why: In order to be in a bargaining unit you must be adjudged to be an employee, and even if you are, you must not be considered as a supervisory employee. These can be two difficult hurdles to overcome.
Even though many new doctors enter private groups as salaried, many morph into partnerships and other arrangements, which the IRS and the National Labor Relations Board, or NLRB, consider as independent contracting. The employee-contractor dichotomy is an important fulcrum of union eligibility. In the HMO and managed-care era, various physician groups have attempted to make the case that they were quasiemployees of HMOs, and thus eligible for collective bargaining with them. In a case involving AmeriHealth in 1999, an unassociated group of New Jersey physicians argued that because they were bound by restrictive rules, regulations and pay schedules they were employees of the HMO. The NLRB ultimately ruled against them. The implications are obviously enormous for most working physicians.
Even if one is officially deemed an employee, the NLRB and the Supreme Court have denied union status to supervisory employees. In the 2006 Kentucky River trilogy of cases, the NLRB clarified its position. It said that supervisors must be accountable, have actual authority and use independent judgment in a discretionary manner. These criteria set a low threshold. Proving one is neither contractor nor a supervisory employee likely deters many doctors from forming bargaining units.
So where do most physician union members come from? The public sectorcity, county and state civil service positions. In the Union of American Physicians and Dentists, or UAPD, public members enjoy the right to negotiate and enforce a contract; to meet and confer with management; to file grievances over contract violations; to be represented in investigatory or disciplinary hearings; and to promote legislation for the betterment of patients and the medical establishment.
We do have private physician members who join our union as independent contractors. They cannot collectively bargain with payers, but UAPD coordinates and reviews managed care/insurance contracts with them. We have an independent practice association with several excellent contracts. We negotiate these for our members via the messenger model. We also help private members recover lost practice fees, advise on medical staff, medical board and other legal issues as well as sponsor and promote legislation. The union charges very modest dues.
What about the future of physician unions? There are major economic and political forces that could stimulate union growth. Foremost are the increasing restrictions and decreasing reimbursement by all payersprivate and public. In the public arena especially, unions have been very successful in negotiating wage increases. The actual and perceived loss of control in private, academic and government medicine are causing physicians to think twice about collective bargaining.
Even the AMA launched a brief experiment, the Physicians for Responsible Negotiation, a few years ago to collectively bargain for private doctors. Legislation for partial collective bargaining was signed by then-Gov. George Bush in Texas in 1999. A similar bill passed the U.S. House in 2000, but died in the Senate. It could be resurrected in the near future.
The consolidation of health plans by giant insurers such as United HealthCare and megamergers of Anthem and WellPoint are well under way. They create extremely unbalanced bargaining fields and contracts of adhesion for even the largest medical groups. Increasing and enforcing penalties on journeymen physicians may lead more groups to follow the lead of the quasiemployees of the aforementioned AmeriHealth case.
With a likely Democratic administration in Washington and appointments of more liberal members to the NLRB in the next few years, a more pro-union atmosphere may exist. The UAPD, affiliated with the American Federation of State, County and Municipal Employees/AFL-CIO, and the Doctors Alliance, affiliated with the Service Employees International Union, will gain a greater voice in healthcare policy and legislation.
Political affiliations with these giant unions have given physicians leveraged lobbying power that even the American Medical Association cannot match. Issues such as scope creep of ancillary providers, due process, whistle-blower protection and patient care are championed by our labor lobbyists.
But what about the typical arguments about physician unions? The unprofessional image of a labor union has become a moot point to those of us working physicians who have already lost control of our profession. The threat of all-out physician strikes is also an overblown issue. They are as rare as hens teeth. More importantly they represent a failure of the union to negotiate effectively.
The other important factor in the growth of physician unions is the need for universal healthcare access and reform. A plethora of creative state and national legislation addresses this issue. They may vary in the manner of funding and strategy, but most plans combine private and public resources.
One such example is the creation of physician civil-service positions in rural private hospitals in California. This amalgam must continue if we are to catch up to other industrialized countries in providing care for all of our citizens. Of course, looming in the future is a single-payer system. When this comes to pass, unionized physicians, as in the U.K., will be allowed to bargain across the table with the government for better wages, working conditions and benefits. I believe we are slowly evolving to the model that Sicko endorses. It is only a matter of time.
Stuart Bussey, M.D.PresidentUnion of American Physicians and DentistsOakland, Calif.