MANAGED CARE April 1999. ©1999 Stezzi Communications
DAY BY DAY, PHYSICIAN STRIKES BECOME LESS 'UNTHINKABLE'
The president of the Union of American Physicians and Dentists pulls no punches in describing the conflict between physicians and insurers.
After launching the Union of American Physicians and Dentists in 1972, founder Sanford Marcus, M.D., met with George Meany, president of the AFL-CIO, seeking an affiliation. Expecting Meany to welcome doctors into the fold, Marcus was surprised when the crusty labor boss rejected the offer. Meany told Marcus that physicians weren't ready for unions because they hadn't been beaten down enough and didn't know what it was like to be treated like employees.
In telling the story, current UAPD president Robert L. Weinmann, M.D., recalls that Meany predicted that 25 years would pass before physicians were ready to be part of the labor movement.
By 1997, Meany's prediction had come to pass. The American Federation of State, County, and Municipal Employees (AFSCME) prevailed over three other AFL-CIO unions in winning UAPD's affiliation. Today, UAPD has about 5,000 members, making it the second-largest physician union in the country. The largest is the new 15,000-member National Doctors Alliance, formed in March when three other physician unions joined forces under the umbrella of the Service Employees International Union (SEIU), also an affiliate of the AFL-CIO.
Weinmann, a practicing neurologist in San Jose, Calif., spoke recently with Senior Contributing Editor Patrick Mullen about the forces that are driving more physicians into unions and the implications for American medicine.
MANAGED CARE: How has the growth of managed care been a spur to physician unions?
ROBERT L. WEINMANN: Doctors didn't anticipate how crooked honest business really was. By honest business, I mean businesses that do a lot of rotten things even as they are following the letter of the law. One of the ways that HMOs work, especially for-profit ones, is by offering doctors hefty salaries that they're afraid to lose. Doctors don't know enough about how business is really done to know how puny the salary is compared to the money the doctors generate for the company.
MC: To what degree do you distinguish between old line not-for-profit HMOs and the newer publicly traded for-profit plans and insurance companies?
WEINMANN: There's a difference between the need to generate income for insiders and the need to generate profits for shareholders. The for-profit HMOs are probably at the guiltiest end of the spectrum, so I sometimes single them out. However, we know that some groups that are not HMOs, such as physician practice management companies, are very much the same. These companies need to generate money so they can open offices any place they want to go. They generate money by signing up thousands and thousands of patients while the doctor services them.
MC: They do it by getting doctors to see more people in less time.
WEINMANN: Sure. It's all part of the same scenario and we're willing to take it all on.
MC: Legal obstacles make it more difficult for physicians to organize than people in other lines of work. For example, private-practice physicians can't collectively negotiate rates. How big an obstacle is that?
WEINMANN: It would be an anticompetitive practice if you were a group of independent contractors, but this is eminently open to challenge today. We have situations all over the country where doctors think that they're independent contractors when they sign contracts with HMOs, then turn out to be de facto employees of the health plans. When the doctors complain, the HMO challenges them and says, "Wait a minute doc, what the hell are you complaining about? Your contract says you're an independent contractor, right there in the opening paragraph, line four. Now you're telling us you're an employee? What is that at the bottom of that page, doc? It's your signature, isn't it? Did you read the contract?" The doctor says, "Yeah, I read it." So the HMO says, "Well that's too bad, doc. Next time, take a little English with your medical school." Once you have set up the sucker, you keep suckering him in, and once you've gotten the guy's trust, you then betray it. Once you have betrayed it, you leave it to him to challenge you. That takes a long time.
MC: It can take years for a challenge to work its way through the courts.
WEINMANN: Right. One of our big problems is that when doctors ask us to help them, we ask to see their contracts, and they can't find them. As for the details of these contracts that doctors sometimes read and always lose, we point out that while the doctor thought he knew what an independent contractor was, there have been lots of changes over the years. For example, the Internal Revenue Service and Federal Trade Commission do not have identical rules and regulations about what constitutes an independent contractor. Furthermore, insurance companies know the difference between de jure, according to law, and de facto, what's happening in fact. They will have the doctor sign a contract admitting that he's an independent contractor and will treat the doctor thereafter as an employee. So the doctor will have certain points on his side when he gets around to challenging the contract, and so will the person who produced the contract in the first place. The doctor is usually not going to be in a position to fight this through.
MC: On his or her own.
WEINMANN: Right, but we can. There are a lot of things that we can do for doctors on an individual basis that do not require collective bargaining, and there are lot of things that we can do for hundreds of doctors at once that are not collective bargaining. I was quoted in an article three years ago saying that it used to be that joining unions was anathema for physicians, but that it's not going to be far in the future when not being in one is going to be anathema.
MC: Increasingly, national unions are affiliating with groups like yours. What will be the impact of closer links between physician unions and the rest of the labor movement?
WEINMANN: Doctors used to think that they and their hated adversaries, lawyers, were the only two professions in the world. They tended to forget that journalists are professionals without licenses, that accountants are professionals with licenses. I tell doctors that our negotiating people are professionals. Our top negotiating agents and business representatives have master's degrees. I tell doctors that those people are as professional in what they do as you are. Unionism is big business now, it is a profession and our negotiating agents are professionals. If you don't think so, doctor, you negotiate that next contract that you can't handle yourself. Doctors don't know the professional aspects of negotiating and they don't know how clauses and contracts play together.
MC: Why shouldn't physicians seek to own their enterprises, rather than unionize and bargain with somebody else who owns them?
WEINMANN: Some are. Some physicians would rather own HMOs than practice in them. If you want to be a big shareholder, to own an HMO, to be one of the entrepreneurs, then you probably don't want to be one of us. We do have some members who have an ownership interest in an HMO on the one hand and practice medicine on the other.
MC: Given the animosity that many physicians feel toward HMOs, and the financial difficulties that some managed care companies have had, can you foresee new types of organizations where physicians are more in charge than they have been?
WEINMANN: Some people are still going to be interested only in practicing medicine, and those are the people we want. Other guys will be interested in getting a medical education so they can own a clinic or a health care provider network, so they can make money out of it that way. We're interested in the guys who will end up having to work for these clinics. We are interested in the doctors working at large clinics and foundations and the like.
MC: Which presupposes that such organizations, no matter what their financial structure, will be around.
WEINMANN: That's right. There are lots of them. We had a nice example recently. One of our members is a doctor who made $200,000 a year at one of these clinics. He quit, and now is making about 35 percent of that in private practice.
MC: And is happier?
WEINMANN: He's not happier with the reduction in income, but he says he is happy knowing that every day he's done his best for all of his patients. He said that in this clinic, he knew he was committing malpractice at least once or twice a day. That was the only way he said he could get through the number of people that they would schedule for him to see.
MC: How much success can physician unions have as long as they are scattered around the country and lack the collective clout that, say, the United Auto Workers has with GM?
WEINMANN: The last time I gave a talk on this subject was to the Wayne County Medical Society in Detroit. A UAW lawyer in the audience said it won't be long before physician unions are more consolidated. An early flash point has been reached. While there may only be about 40,000 doctors in unions now, that's enough for big unions to see a growth opportunity. That's why there is competition now. We are not the only union.
MC: Do you foresee a situation eventually where there would be a single national physicians union?
WEINMANN: Some kind of national alliance is possible. It's pretty close to that already, because SEIU and AFSCME and the Food Workers are all part of the AFL-CIO. There are some rivalries, but we're all still part of the AFL-CIO, and there are certain things that you can do and cannot do if you want to be part of the organization.
MC: How long do you think it will be before physician unions around the country will begin to act in concert with each other?
WEINMANN: I don't know if that will happen because now there's rivalry. HMOs don't necessarily act in concert, even though they have an association and there are certain things that they lobby for in concert, just as the AFL-CIO has certain things that it lobbies for. The competition between unions is a slight advantage to the other side because that means there will be some internal battles. That's OK, that's how competition goes. The unions that can't hack it will fade away.
MC: How serious an obstacle to the success of physician unions is the fact that many physicians would be reluctant to ever go out on strike? Is it a realistic option for physicians to strike?
WEINMANN: Yes. Here's how it works. First of all, we don't call strikes. We do approve them if physicians call them. Twice in our history we have approved strikes. In each case, one of our groups met an impasse with an employer, and the group itself voted to go on strike. That does not mean they've got to go on strike. We weren't going to back them just because they voted to go on strike. They had to come to our board and present compelling reasons why we should approve their strike. In 27 years, we have approved two such strike requests, so we keep the door open for that. Doctors themselves have to decide if they want to do it; it's not our board or management that imposes it.
MC: My point is not that you're telling them to go on strike. I'm talking about the view of physicians who could never imagine themselves going on strike because they would see it as a violation of the Hippocratic oath, and as denying care to their patients.
WEINMANN: That was the opinion of the two groups of doctors who wanted to strike, until they finally voted to go on strike. Up until then, they would never have gone on strike because it was a violation of the Hippocratic oath. When they did vote to go on strike — and then in each case the employer folded overnight — they learned a big lesson: Sometimes, unless you're willing to use your best weapon, you have no weapons at all. As for this business of depriving care, all of those doctors who voted to go on strike informed the employer and us that they would take care of anybody who was critically ill. They would make sure that what they harmed was the corporation's income and not the patients. There are ways of doing that.
MC: Like what?
WEINMANN: You don't make any new admissions, for one thing. You can admit patients elsewhere, to a competitor not involved in the strike. You already know who the critical patients are because you were there, so you don't walk out on the respirators. To the employer it's a real strike, because you're going to shut down his income while continuing some of the expenses. The bigger issue is when doctors are told that they can't do this, that, or the other thing. They are effectively being told that they're involved in a lockout. That's when employers make doctors see patients but don't allow the doctors to do what is medically indicated.
MC: For instance, when managed care plans deny payment for a test or a hospital admission?
WEINMANN: Yes. They're effectively being told they can't practice anyway. Doctors who say they're not going to walk out because it violates the Hippocratic oath are probably worried about their salaries. If doctors cooperate with an employer lockout, they conceal from the public that medical care is not being provided, but they avoid the appellation of strike. The public isn't as familiar with lockouts as they are with strikes.
MC: How should health care be financed, to get away from incentives to do too little or too much?
WEINMANN: We do it the good old American competitive way. We will look out for the doctors. Somebody else will look out for corporations. We'll fight it out in the marketplace and nobody gets to dictate remuneration, hours, or working conditions unilaterally.
MC: Do you really believe that's the best way to go?
WEINMANN: It is in America.
MC: Even if, somehow, universal care or a single-payer approach is enacted?
WEINMANN: Universal care doesn't obviate these things. If there's universal care, then we'll represent the doctors in front of the government. If there's single payer, then we'll represent doctors before the single payer. When I was in Denmark a couple of years ago, I studied a situation where one of the largest hospitals needed an MRI scanner. They couldn't get one until a local liquor baron bought one for them. I asked why the hospital couldn't buy one themselves, since Denmark had vaunted medical care, social services, and the like. The answer was that in Denmark, each county could spend tax money its own way. Every time the hospital needed something and the highway commission needed something, the people voted for the bridge or the road. The hospital always lost.
MC: So you see a need for physician unions regardless of payment structure, regardless of whether for-profit managed care disappears next week.
WEINMANN: That's right. We are now into the corporatization of everything. When that happens you can't pay attention as an individual to all aspects of everything. The doctor who wants to practice medicine should leave negotiating to us. The doctor who wants to be an entrepreneur, Godspeed, go your own way, send out your bills to whomever you like.
MC: One thing that comes through quite clearly from everything you're saying is what appears to be a great level of anger at insurance companies. It seems that the way you see it, they're not even trying to do the right thing by anybody. Is that a fair depiction of your views?
WEINMANN: They represent the worst form of legalized rape in America. It's not limited only to health care. Most people can give you examples from other aspects of life. I just learned about a real estate company that takes over homeowners' policies and then writes all of its policyholders and tells them they need another type of adverse-events policy. People who have it don't have to buy it again but many people don't understand the fine print and end up buying an auxiliary policy they don't need. It's a legal form of deception. The result is that insurance polices that are not needed are sold to these people for several thousand dollars. When they catch on to it, they can protest and can get it all back, but minus fees, interest, and costs. This is done all the time. This is legal because the people are actually informed, in a sense, about what's going on. HMOs have simply caught on. They promise health services and then adopt mechanisms to delay and deny care. We didn't think it would happen to health care because we figured the insurance people know that they also need health.
MC: The AMA and some state and local medical societies are beginning to make noises that are more receptive to physician unions. What role, if any, do you think they should play?
WEINMANN: They should probably just hire us to do the job for them.
MC: Let's say the AMA decides that they'd rather organize on their own. Are they going to help or hinder you?
WEINMANN: It's probably better to have them out there as an adversary. It's hard to think of anybody more recalcitrant and harder to push into the 21st century than that group. It doesn't hurt to have somebody to compare ourselves to. It doesn't hurt to compete against these guys. Some of these new groups are saying, "We won't strike." Good for them. How good is it to be a part of any group that announces in advance which weapons it will use and which ones it won't? Obviously, since we've only approved two strikes in all these years, we don't strike very often. But we're not renouncing the tool, and we think any organization that does is lying to its potential members by calling itself a union. All they are is a goody-two-shoes organization, afraid of losing members, afraid of looking bad to the public. Mostly, they're desirous of keeping the dues coming in from the people they've suckered in the past and want to continue suckering in the future.
MC: Why are you in the physician union organizing movement?
WEINMANN: My experience with organized labor has been favorable from the outset. When I was in high school, I started working at a factory in Newark, N.J. On the first or second day I was there, the foreman or the union shop steward came over to say I needed to join the union. I said, "Well I appreciate that, but it wouldn't be much advantage to me because I'm going to college in a couple of months." And the guy said, "That's all right son, but look around you. We've got a nice well-lighted place, a safe environment, thanks to the dues we've already paid." I still didn't see the sense of paying dues. The next day, the shop steward and a couple other union guys came over and said, "Here's how it is: You go to college on the date that you said, and your dues are on us." When I told my dad about it, he told me that someday I may regret that decision. He said that no matter what I did in life, I may find out that I wished I was in a union. In 1981, because of a solidarity issue that I believed in, I joined AFSCME as a rank-and-file number. I told them the story and said I thought payback time had come.
MC: What would the health system be like with a strongly unionized physician component?
WEINMANN: We will lead the doctors' professional component into the marketplace with banners flying. We will pay attention to what the doctors want, which is control of their practices, control of patient care, and professional autonomy. Along the way we will not be embarrassed to negotiate in the marketplace for reasonable remuneration.
MC: Thank you.