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by Richard D. Weber, J.D.
MDA Legal Counsel
Published in the April/May 1997 issue of the Journal

Question: I have recently read that physicians are joining unions in order to fight managed care organizations in their efforts to control the practice of medicine. I even read that the National Labor Relations Board has cleared doctors to hold a union election to bargain collectively with a Tucson clinic and its owner, a California-based HMO. I have also read that the podiatrists are organizing a nationwide union as a result of frustrations with managed care programs that are proliferating in podiatry.

Why can't dentists form a union to fight managed care and its encroachment on the practice of dentistry?

Answer: Unions have been formed to bargain collectively for physicians and podiatrists, and some dentists are also involved. Reportedly, the Tallahassee, Florida-based Federation of Physicians and Dentists has about 3,000 members, and the Oakland, California-based Union of American Physicians and Dentists has about 5,000 members. New York's Office of Professional Employees International Union already represents a number of podiatrists. At least two of these unions are affiliated with the AFL-CIO.

Organized labor's ability to help doctors collectively negotiate with managed care plans is severely limited by federal antitrust and labor laws. Unions can provide collective bargaining functions only for employed doctors who do not fall within a supervisory category. In addition, such employed doctors are prohibited from collectively bargaining with entities other than their employer. This means that doctors who might be employed by a clinic or hospital can't join forces to negotiate with an HMO.

It is estimated that more than 40 percent of physicians are employed. Approximately 32 percent are employed by hospitals, and 8 percent work for HMOs. To the extent that these physicians have no supervisory function, they can collectively negotiate with their employer. The primary bargaining strength of a union, however, is the threat of a strike. For physicians or other health care professionals to strike would be inappropriate, unprofessional and contrary to the well-being of patients.

The dental profession differs in many respects from the medical profession. One primary difference is that most dentists are independent practitioners, not employees. Therefore, independent dentists gain nothing under the law by forming a union. The Michigan Dental Association, or any other dental association, can do as much under the law as a union when the members are independent practitioners. The MDA and other dental associations are in a better position, both legally and professionally, than labor unions to assist in efforts to combat managed care intrusion into the dental-patient relationship.

Unionism is not the answer to the health care professions. Although collective bargaining can be useful in isolated employer-employee circumstances (where the employed doctor has no control over hours, patient load, or medical decision-making, and is therefore truly not a supervisory employee as legally defined) it is clearly not the answer for the dental profession.

Neither the MDA nor any union can collectively negotiate on behalf of independent practicing dentists. The antitrust law restrictions apply equally. The MDA may exercise First Amendment rights to express the views of its members to managed care entities concerning any issue. The MDA also has the right to inform its members on issues affecting dentistry, including managed care reimbursement issues, so that the dentist members may take their own individual decisions.

For a more detailed discussion of the antitrust laws, see Insurance Participation Agreements and the Antitrust Laws published in the September 1996 MDA Journal.

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