Amid consolidations, payment pressures, the No Surprises Act, and, of course, COVID-19, there’s been a shift in the discussion of attending physician unionization over the last five-10 years. Dr. de Lanzac and other ASA members attended a presentation by Bob Sugarman, JD, Tom Sugarman, MD, and Ro Gonsalves, MD, titled “Can Unions/Collective Bargaining Improve Quality of Care and Physician Wellness?” at January’s ASA® ADVANCE: The Anesthesiology Business Event. Dr. Gonsalves was instrumental in the two-year process of establishing a physician union that joined the SEIU 1021, a Bay Area union of more than 70,000 local workers, including physicians from Alameda Health Systems. According to Dr. Gonsalves, there are several prominent unions for attending physicians, including Doctor’s Council SEIU, whose membership is composed of physicians in health systems within the New York City and Cook County (Chicago) and Union of American Physicians and Dentists (UAPD), which has a strong presence on the West Coast (specifically California and Washington), including physicians employed by L.A. County and Ventura County.

Probably because the concept is relatively new, there’s some confusion about who exactly can unionize. Resident physicians have their own unions, so this discussion applies to attending physicians who are not management.

Some ASA members have called for the society to form its own union, but this isn’t possible, Dr. de Lanzac explained, due to the diversity of the roles of members in their institutions and practices. Still, as an ASA officer, he thinks it’s important for the organization to educate members about the risks and benefits of unionization.

The reasoning behind ASA members’ newfound interest in unionization mirrors that of other physician specialties. In the ADVANCE presentation, Dr. Gonsalves and Dr. Sugarman outlined the most common issues for physicians considering unionization, including:

  • patient safety
  • working conditions
  • Just cause
  • leverage with health insurers
  • staving off health system consolidation
  • wage protection
  • contract protection.

Others see unionization as a way to strengthen the physician voice, especially in the ongoing debate of the No Surprises Act implementation, equipment and supply shortages as highlighted by the pandemic, and required components of the electronic health record.It’s important to note that a union isn’t necessarily a catch-all solution, and under the current law, a union can only organize under an employer.

Hospital-employed anesthesiologists would be able to join that hospital’s union (if applicable) and negotiate terms of employment, etc., but many anesthesiologists are independent contractors. Neither hospital-employed physicians nor independent contractors are employed by insurance companies, so a union negotiating employment conditions and wages would not negotiate with the insurance company.

Where unions might have a significant impact is in No Surprises Act conversations. ASA is permitted to work on the process for the No Surprises Act but cannot negotiate payments or rates. Non-connected physicians also have no mechanism for negotiating rates, so many believe a union would fortify the physician voice in these discussions.

“Most issues with the No Surprises Act are settled in favor of the insurance companies,” reasoned Dr. Sugarman. “If insurance companies make up any number they want (for reimbursement), it’s going to drive doctors to consolidation. If we could get laws changed allowing physicians within different groups of employers to collectively bargain with insurers, the playing field between insurers and doctors would be leveled. Collective bargaining requires both parties to negotiate in good faith.”

The law in question refers to H.R. 1304, Potential for Collective Bargaining Without Unionization, which passed the House of Representatives in 2000. The bill would entitle physicians to “the same treatment under antitrust laws as the treatment to which bargaining units are recognized under the National Labor Relations Act and are entitled in connection with such collective bargaining.” However, resurrecting this bill would require significant advocacy, according to Drs. Sugarman and Gonsalves. While they say health care payment issues are somewhat nonpartisan, insurance company lobbying and concerns over increasing health care costs would be significant obstacles.

Drs. Sugarman and Gonsalves were positive about the effects of the new physician union at Alameda Health System, a safety net hospital in California’s Bay Area. The union came about as a result of a staffing consolidation from three separate hospitals. That organizational restructuring highlighted fragility of contracts and power further shifting away from physicians. Relationships with administration were antagonistic at this time, and the co-occurring global pandemic highlighted the essential frontline clinical worker.

In less than three years, Dr. Gonsalves said unionization resulted in gaining leverage to push for long-awaited changes to employment agreements, even before signing the first collectively bargained contract. These changes included:

  • COLA and modest wage increases.
  • more inclusive family leave policy.
  • adoption of due process language into contracts.
  • dramatic drop in physician turnover rates.
  • increased morale and engagement across the organization.

Dr. Gonsalves cautions that these successes were the result of intense compromise and priority-setting for union organizers. “It was so important to step back and see how our goals aligned,” they recalled. “If, for example, a hospital specialty group has only one ophthalmologist and 100 internists, what that one ophthalmologist needs to do his job can’t be overlooked.”

Helping some physicians overcome hesitations about unionization was another challenge, according to Dr. Gonsalves. Primarily, physicians were concerned that unions would create a retaliatory environment or that they’d lose autonomy.

“When people hear the word ‘union,’ they automatically think of strikes,” noted Dr. Sugarman. “Doctors shouldn’t really strike due to the American Medical Association’s Code of Ethics, and many states have laws prohibiting doctor strikes. Thinking of this issue in terms of the changing economy, a lot of the disadvantages about losing autonomy to the union are moot. Consolidation won’t stop or reverse, so doctors will continue to lose autonomy to health care systems, large groups, and insurance companies. All the problems we’ve mentioned are rooted in the fact that we’ve lost control of our practices, and unions provide an attractive paradigm.”

The timing might be right for changing the narrative from the dangers of a potential physician strike to the better patient safety environment that could be the result of unionization, mused Dr. de Lanzac. “There’s always been a fear that unionizing would hurt patients, but now it may be relevant to discuss how patients could benefit from unionization. Patient care would probably improve if physicians were not burned out from all the nonclinical charting and had more meaningful work-life balance.”