Diagnosis for Democracy
Insights into the State of Our Union
A Blog by Rob Tenery, MD


February 11, 2013: What Would Hippocrates Do?

By Rob Tenery, MD on February 11, 2013

There was a time when physicians in this country spoke with one voice. Beginning in 1847, the American Medical Association was that voice. No more! In the early 1950s, the American Medical Association’s membership penetration was over 75% of physicians. Since then, the percentage has fallen into the mid-teens for a variety of reasons. Although the rise in the influence of the specialty organizations and physicians who disagree with the AMA’s position on one particular issue or another are contributing factors, the most likely reason for this decreased participation is the apathy of disengagement that is epidemic throughout all strata of society. Look at the loss of membership by many traditional churches, the Boy Scouts and the Masons. (1)

The passage of the current health care law, the Affordable Care Act (ACA), is an example that demonstrates when control is delegated to others by either nonparticipation or proxy; the outcome may not reflect the majority will of those they purport to represent. Even though the leadership of the AMA, the American College of Physicians (ACP) and a scattering of other physicians’ organizations lined up behind President Obama’s proposed legislation, virtually every poll showed that the majority of physicians opposed the bill.

Whose fault is that? Although there are many who would disagree, it’s not the AMA’s or the ACP’s fault. These organizations were just acting on decisions made by a majority vote of their leadership, who were elected by their membership.

The problem is the more individuals within any special interest group abrogate or delegate the authority of representation to others, the less control those individuals, who are not involved, have over their own destiny. The results speak for themselves: not only with the passage of the ACA (Obamacare), but the inability to fix the SGR, the lack of meaningful liability reform in many states, the growing influence of third party payers and the increasing takeover by hospital corporations, just to name the most obvious.

The once strong chorus of the medical profession is now being dispersed into thousands of discordant voices. That is not to say that physicians have lost their direction, only their ability to control the path they will take.

The fate of the future medical profession appears to come down to two choices: Maintain the status quo by allowing others, often outside of the profession, to determine medicine’s destiny, or reunite the muffled interests of this noble profession.

Unionization of physicians, as advocated by the Union of American Physicians and Dentists (UAPD), seems self-serving for a profession that supposedly adheres to a higher calling. But maybe that option should be on the table if physicians ever hope to recapture or maintain what few choices that remain for them. Although the UAPD claims “to putting physicians back where they belong--- in control of their practices,” the only methods they offer are lobbying efforts, filing lawsuits and preparing amicus briefs. These appear to be no different from the conventional organizations. (2)

Unfortunately, this may not be enough! Traditionally, unions exert their influence by duress or the threat of duress. In more basic terms, union members withhold services that deny consumers the benefit of their products. Except for rare and the dire circumstances, physicians have not been willing to ‘go to these lengths.’

The IPAs and HMOs have contracting authority. But they have two inherent flaws: First, many of them, especially the HMOs, are, at best, not entirely owned or run by physicians. Second, the number of physicians within these entities are often so small that any forcible changes they try to enact are usually offset by another competing organization.

In 2000, 57% of practicing physicians owned at least a part of their medical practices. That percentage is projected to drop to 36% by 2013. (3) With hospital corporations swallowing up existing practices at an alarming rate and with the future establishment of Accountable Care Organizations, the ability (or even the desire) of physicians to negotiate on issues that affect the profession is evaporating.

How then can physicians protect their own authority and best represent the interests of their patients? An answer may be to form a ‘binding’ organizational model, such as the Screen Actors Guild, that crosses specialty, organizational and geographic boundaries.

In a January 30, 2013 article in the Wall Street Journal article, David J. Leffell, MD, a professor at the Yale School of Medicine, wrote,  “… The Obama Administration, by intent or accident, has effectively driven a major change in the status of physicians… to seek employment with health systems or large physician groups… It becomes clear that when the majority of physicians are no longer self-employed--- and barring any legislation to the contrary--- their new employed status will provide doctors with the right to collective bargaining… If doctors unionize, that raises an immediate question about their right to strike--- the key lever in collective bargaining.”

This move would almost certainly evoke claims of violation of antitrust laws by the Justice Department and the Federal Trade Commission and raise ethical concerns of the ‘do no harm’ pledge that is the underpinning of the medical profession.

United in cause, physicians have proven that they possess the power to bring the system ‘to its knees,’ as seen in the 1975 California liability crisis:

The situation in malpractice liability coverage reached crisis levels in 1975 during the post-oil-shock recession. Commercial insurers left large numbers of physicians without coverage. In California, many physicians were facing doubling and even tripling of their premiums within a year’s time. Many practices closed and often the inflated premiums were passed on to the patients. In an act of desperation, physicians organized a work slow-down, only performing emergent care. Governor Jerry Brown called the legislature into an emergency session. Out of that legislature came The Medical Compensation Reform Act of 1975, known as MICRA…

Following the passage of MICRA, malpractice settlements have been 53% less than the national average in one study, while malpractice premiums have increased only 7% annually versus 17.5% per annum nationally. California internists and general surgeons pay about one-third less in malpractice premiums and obstetricians/gynecologists about one-half compared to their counterparts in New York and Florida. (4)

There are three questions: could, would and should physicians exert this power?

The results that produced the MICRA legislation in 1975 seem to answer the questions of could and would. Although the work slow-down was only by anesthesiologists, who refused to assist with elective surgeries in San Francisco for four weeks, their decision was effective.

It is important to look at why the work slowdown in California took place and who benefitted.  The decisive action occurred because the exorbitant rates for malpractice insurance were closing practices and denying patients access to affordable medical care. The beneficiaries were the physicians that realized decreases in the costs of their premiums, but, more important, the patients benefited even more with increased access to affordable care.

Through political influence in their state legislature and with the support of their Governor, Texas adopted a liability reform package, Proposition 12, in 2003. Since then there has been a 59% growth in the number of newly licensed physicians in the last two years versus the previous two years prior to the adoption of this legislation. In rural areas, the number of practicing obstetricians has increased by 27% post reform and the number of orthopedic surgeons has gone up by 15%. (4)

The current avenues of representation by the conventional organizational models, except for a few exceptions like the example above of malpractice reform in Texas, have only slowed, what appears to be, the inevitable takeover of the medical profession. Would the next step be for physicians to join together in more structured ways in order to protect their own best interests and those of their patients?

What would Hippocrates do? The answer to this hypothetical question might be found in his oath that most physicians recite as they are presented with their medical diploma. Referring to the patients, his pronouncement to keep them from harm and injustice, takes physicians’ responsibility to a higher order--- not only to do no harm, but to seek protection from others whose actions might cause them harm. (4)

Physicians, and the organizations that represent them and their patients, historically have pursued tactics that can be generally described as reactive--- acting in a response to a situation, rather than controlling it.  If the last 48 years, since the introduction of Medicare, are any indication of what is to come, the only way to reverse this trend is by becoming proactive.

Should today’s almost 700,000 practicing physicians take that next step? It appears from his teachings that Hippocrates might have thought so.

References:

(1) R. Tenery, What If There Were No AMA? Echoes for the Future,@ http://www.robtenerymd.com, January, 2011.

(2) http://www.uapd.com/all-doctors-need-a-union/

(3) Report by the consulting firm Accenture, October 31, 2012.

(4) R. Tenery, In Search of Medicine’s Moral Compass, Brown Books, 2011.




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