AAOS Bulletin - December, 2005

Should surgeons join work stoppages?

Is a physician job action ever ethically justifiable?

By John V. Hill, MD

Are physician job actions or work stoppages ethically permissible? Recent events in states with severe medical liability premium crises or hospital emergency room coverage issues have again put this question in the spotlight.

Conventional wisdom would seem to dictate that physicians are held to a higher ethical standard than other individuals who serve the public. Is this premise truly valid in the era of an all-pervasive and controlling Medicare system, intrusive managed care, runaway medical liability premiums and insurance companies that function as virtual oligopsonies? Are we as physicians naļvely working under a superannuated ethical system that is in reality being used against us?

Today’s realities

No physician would argue that the health and welfare of our patients is our primary concern. Unfortunately, the traditional ability of the physician to direct and guarantee this goal is now being subverted by many outside forces larger and more powerful than the individual physician.

Expeditious and indicated care is being blocked, delayed and denied as a result of convoluted and obstructive insurance company authorization processes. Additionally, forces beyond the control of physicians have turned the practice of medicine into a business subject to the same harsh economic realities as any other business, with one very important exception—medicine is the one segment of the economy that is governed by price controls.

Orthopaedic surgeons in private practice are confronted on a daily basis with increasing health insurance premiums for our employees, burgeoning medical liability insurance premiums, skyrocketing workers compensation rates, increasing employee salaries, astronomically expensive technology and an alphabet soup of unfunded mandates under OSHA, EMTALA, HIPAA, and more.1 We are forced to give uncompensated emergency care and, even when there is the potential for reimbursement, our fees are delayed and reduced and we have no recourse.

We cannot recoup these costs with fee increases. Most significantly, we are precluded from collective bargaining. Reimbursements under Medicare are projected to decrease almost 30 percent over the next five years. With insurance company payments pegged to Medicare, a practice’s income lines (reimbursement) and expense lines (overhead) will soon cross and medical practice as we know it will cease to be viable.

When we reach this point and are unable to sustain a practice, our high ethical, patient-centered standards will be of no value to us or our patients. Why can’t we do something to prevent this from occurring? Is it wrong to engage in some sort of job action that would enable us to continue to care for our patients and provide for our employees and our families? Aren’t they worth fighting for?

Ethical guidelines

Although not specifically addressed in the AAOS 2005 Guide to the Ethical Practice of Orthopaedic Surgery, the 2000-2001 edition of the American Medical Association’s (AMA) Code of Medical Ethics provides: “Collective action (by physicians) should not be conducted in a manner that jeopardizes the health and interests of patients.”

The AMA Code goes on to state: “Strikes reduce access to care, eliminate or delay necessary care and interfere with continuity of care. Each of these consequences is contrary to the physician’s ethic. Physicians should refrain from the use of the strike as a bargaining tactic.” More importantly, the AMA Code somewhat grudgingly and belatedly recognizes the new practice environment and goes on to say: “There are some measures of collective action that may not impinge upon essential patient care. Collective activities aimed at ultimately improving patient care may be warranted in some circumstances, even if they create inconvenience for management.”

Although I am not sure what “for management” means, I feel that protecting our ability to practice medicine and provide care for our patients is worth standing up for. Unfortunately, this may require drastic measures.

Personal experience

In the 40 years since I graduated from medical school, I have played a small role in two successful medical job actions. Both of these job actions were structured with the best interest and welfare of the patients in mind. Both were felt to be necessary but were undertaken in a manner that took the high road.

The first occurred in 1964-65 while I was serving as an intern at Los Angeles County General Hospital. The House staff request for a raise to a living wage was denied by the County Board of Supervisors. This meant that we were being paid less than the hospital’s apprentice laundry workers, even though we were working 90 to 100 hours per week.

With overwhelming support from the House staff, we instituted what was euphemistically called a “heal in.” We adopted a strict patient admitting standard, comparable to the standards followed by private hospitals. As a result, the county hospital rapidly filled to capacity and was overflowing. The county hospital budget was hemorrhaging. We as physicians could not be faulted for giving standard care, and our actions rapidly brought the county government to its knees, and we were given a salary increase to a living wage.

My second experience was in 1975 when California physicians faced a severe crisis as a result of a precipitous escalation in medical liability premiums coupled with the inability to purchase the then-available “occurrence policies.” In response to this situation, California physicians came together almost universally in protest. We stopped doing elective surgery and seeing new elective office patients. We continued to see current patients whose care was in progress, and we saw emergency patients at the hospital.

In spite of significant physician financial hardship, any fees generated from the emergency room or emergency surgery were collected by the hospital and placed in the medical staff fund. The press gave us very favorable coverage, and our patients were very supportive of our cause. The governor and the state legislature quickly realized that they had a crisis of care. The result was passage of the Medical Injury Compensation Reform Act (MICRA), and the rest is history. California has been the poster child for medical liability legislative reform ever since.

In conclusion

We are living in an era of medicine that never could have been envisioned when the old ethics of medicine were formulated. The traditional ethical schema was predicated on a one-on-one, doctor-patient relationship based on trust, confidence, compassion and competence.

This ethic never considered the duplicitous business environment in which we practice today. It never anticipated a third-party intruding on all facets of the doctor-patient relationship. It also never envisioned the legal climate in which we are required to practice. State and federal government involvement in all facets of the doctor-patient relationship was not a relevant concern.

However, as a result of these uncontrollable disruptive influences on the practice of medicine, we need to reassess our ethical precepts. Unless we wish to forfeit our traditional role as practicing physicians, we have to consider the possibility of taking actions that, in most cases in the past, would never have been considered.

It is my feeling that under the correct circumstances and structured properly, there is a role for physician work stoppages and job actions to enable us to continue to serve the best interests of our patients.

John V. Hill, MD, is a member of the AAOS Ethics Committee and a former member of the Board of Councilors. He can be reached at jvanceh@aol.com

References:

1. OSHA: Occupational Safety and Health Administration; EMTALA: Emergency Medical Treatment and Active Labor Act; HIPAA: Health Insurance Portability and Accountability Act.

    The Ethics Committee weighs in

    By Jeanne DelSignore, MD Chair, Ethics Committee

    Originally, the AAOS Ethics Committee had planned this topic as a Point/Counterpoint feature. However, after reading and discussing Dr. Hill’s article at length, the entire Committee found itself in agreement with his position.

    We recognize that the issue of work stoppages by physicians is a controversial topic, and we invite readers of the Bulletin to engage in a discussion of this issue by submitting your own “Point of View” or “Letter to the Editor.” Send your material to: Editor, Bulletin, AAOS, 6300 N. River Rd., Rosemont, Ill. 60018


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