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Rams Special Feature Learners and Laborers: The Dual Nature of Resident Physicians and Their Impact on Our Workplace Rights
Learners and Laborers: The Dual Nature of Resident Physicians and Their Impact on Our Workplace Rights
By Ryan D. Pappal, MD, MSCI; Daniel Artiga, MD; Hamza Ijaz, MD; Daniel Jourdan, MD; Michael DeFilippo, DO; and Taylor Brown, MD, on behalf of the SAEM RAMS Resident Labor Task Force
The structure of the United States medical residency system is somewhat of a marvel. Our residency matching process successfully distributes thousands of resident physicians into training programs across the entire spectrum of medical and surgical specialties each year. In emergency medicine (EM), where we match plays a definitive role in our trajectories as physicians — where we show up for our first shift, the patient populations we treat, the pathology we see, and who our coworkers (and eventual best friends) are. Undoubtedly, our residency system plays a key role in ensuring our physician workforce is well-trained to tackle the substantial challenges that come with caring for upwards of 330 million Americans. Unfortunately, few systems implemented on such a massive scale turn out perfect. Resident physicians are beset by numerous challenges that cause stress during the most critical learning phase of our careers. Burnout is prevalent among EM resident physicians and is associated with factors largely outside of our control, including lack of administrative and clinical autonomy1 . Another challenge is debt. With a median burden of $212,000 per EM resident, our lingering education debt imposes persistent background stress and unduly influences life, career, and future employment decisions2 . Prior to the COVID-19 pandemic, the emergency department was already considered a potentially dangerous work environment. A 2018 ACEP survey found that 47% of EM physicians
have been physically assaulted on shift while 83% reported threats of physical harm/violence3. The pandemic has only amplified safety concerns; resident physicians may be especially vulnerable to workplace safety issues, and even left out of safety policies, given our dual nature as learners and employees4 . Indeed, our residency system has created circumstances that limit our own control over our careers and livelihoods during training.
Given these issues, it is not unreasonable for us to ask: what is our legal status as health care laborers? What protections are afforded to us in the realm of workers’ rights? While the Accreditation Council for Graduate Medical Education (ACGME) outlines certain protections for residents, they are not all-encompassing. To begin to answer these questions, resident physicians must educate themselves on a topic never presented in medical school lectures, question banks, or board exams. In fact, the subject may more likely suit a law school than a medical school — and that is the current state of resident physician labor rights.
The National Labor Relations Board (NLRB) is the federal entity tasked with enforcing the rights of most employees to organize, attempt to improve their wages and working conditions, and otherwise remedy unfair labor practices5. NLRB protects the right to discuss wages, the right to unionize, and the right to strike, as well as providing protection against employer retaliation for expression of these rights6. In 1974, Congress expanded the jurisdiction of the NLRB to cover employees of nonprofit hospitals7 , which, theoretically, extended protections to resident physicians; however, interpretation of what constituted an employee versus a student was contentious for decades.
In 1976, a group of resident physicians at Cedars-Sinai Medical Center attempted to achieve recognition as a union under the newly amended National Labor Relations Act. The NLRB’s decision, known as the Cedars-Sinai Decision8, formally denied resident physicians labor law protections by determining their “primary purpose” was that of a student, not of an employee. It was not until 1999, in the Boston Medical Decision9, that this ruling was overturned, reasoning that resident physicians were also employees, granting them the right to unionize. However, as unionization efforts began, the uphill battle of exercising these newly acquired rights became apparent.
Unsurprisingly, most resident physicians don’t have the free time, nor the financial flexibility, to dedicate extensive resources into technically and legally challenging organizing efforts. Furthermore, because being fired from residency has such a devastating impact on our career goals of achieving board certification and practicing medicine, it is not difficult to see that many resident physicians feel it’s not worth the risk. Even outside of health care, concerns about employer retaliation are well-justified. Data show a high prevalence of illegal firings as retaliation for organizing activity, with 30% of NLRBsponsored union elections involving illegal firings as of 200710. With such substantial obstacles at play, a group of resident physicians took a novel approach to address resident salary and workplace concerns five years after the Boston Medical Decision.
In Jung v. Association of American Medical Colleges (AAMC)11, resident physicians led a class-action antitrust lawsuit against the National Resident Matching Program (NRMP), alleging anticompetitive practices in violation of the Sherman Antitrust Act. The lawsuit enjoyed early success in federal district court12, which preliminarily determined:
“Finally, the Court finds that plaintiffs adequately have alleged a common agreement to displace competition in the recruitment, hiring, employment and compensation of resident physicians and to impose a scheme of restraints that has the purpose and effect of fixing, artificially depressing, standardizing and stabilizing resident physician compensation and other terms of employment among certain defendants.”
In other words, the district court determined that the NRMP’s Match process appeared to do exactly what resident physicians feared — fix our salaries at artificially depressed levels in an anticompetitive manner. While momentum built toward a final judgment in the case, vigorous lobbying by the AAMC, American Hospital Association, and others succeeded in pushing Congress to pass a rider that retroactively exempted the NRMP from antitrust litigation. This development proved fatal to the otherwise promising lawsuit13 . Sherman Marek, attorney for the plaintiff, expressed his client’s surprise that “rights under the antitrust laws could be taken from [resident physicians] in this fashion” and commented that “[this rider] is an attempt to deprive tens of thousands of young doctors of the rights enjoyed by other Americans”14. Ultimately, the litigation was dismissed from court, and the path to challenge the U.S. medical residency system via antitrust litigation has been formally blocked since.
Regardless of the outcome of Jung v. AAMC, the truth is resident physicians retain the rights granted to us in 1999’s Boston Medical Decision to discuss our workplace conditions, organize unions, and take collective bargaining action. Practical challenges aside, resident physicians must be aware of the recent history of labor law that affects us. That way, we can better understand and decide for ourselves what our labor rights mean in our careers and how to wield them responsibly.
RAMS SPECIAL FEATURE
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REFERENCES
1. Takayesu et al. Factors Associated With Burnout During Emergency Medicine Residency.
Acad Emerg Med. 2014;21(9):1031-1035. 2. Young et al. Effect of Educational Debt on
Emergency Medicine Residents: A Qualitative
Study Using Individual Interviews. Ann Emerg
Med. 2016;68(4):409-418. 3. Marketing General Inc. ACEP Emergency
Department Violence Poll Research Results.
American College of Emergency Physicians. 2018. https://www.emergencyphysicians.org/ globalassets/files/pdfs/2018acep-emergencydepartment-violence-pollresults-2.pdf. Accessed 25 July 2022. 4. Wamsley, L. Stanford Apologizes After Vaccine
Allocation Leaves Out Nearly All Medical
Residents. National Public Radio. 2020. https://www.npr.org/sections/coronaviruslive-updates/2020/12/18/948176807/ stanford-apologizes-after-vaccine-allocationleaves-out-nearly-all-medical-resid. Accessed 25 July 2022. 5. Introduction to the NLRB. National Labor Relations Board. https://www.nlrb.gov/aboutnlrb/what-we-do/introduction-to-the-nlrb.
Accessed 9 March 2022. 6. Your Rights. National Labor Relations Board. https://www.nlrb.gov/about-nlrb/rights-weprotect/your-rights. Accessed 9 March 2022. 7. 1974 Healthcare Amendments. National Labor
Relations Board. https://www.nlrb.gov/aboutnlrb/who-we-are/our-history/1974-healthcare-amendments. Accessed 9 March 2022. 8. Cedars-Sinai Medical Center, 223 N.L.R.B. 251 (N.L.R.B-BD 1976). https://casetext.com/ admin-law/cedars-sinai-medical-center-8.
Accessed 9 March 2022.
9. Boston Medical Center Corp., 330 N.L.R.B. 152 (N.L.R.B-BD 1999). https://casetext. com/admin-law/boston-medical-center-corp.
Accessed 9 March 2022. 10. Schmitt, J, & Zipperer, B. Dropping the Ax:
Illegal Firings During Union Election Campaigns, 1951-2007. CEPR Reports and Issue
Briefs. 2009. Center for Economic and Policy
Research. 11. Jung v. Association of American Medical Colleges, 339 F. Supp. 2d 26 (D.D.C. 2004). https://casetext.com/case/jung-vassociation-of-american-medical-colleges.
Accessed 9 March 2022. 12. Jung v. Association of American Medical Colleges, 300 F. Supp. 2d 119 (D.D.C. 2004). https://www.leagle.com/decision/200441 9300fsupp2d1191407. Accessed 9 March 2022. 13. Weinmeyer, R. Challenging the Medical Residency Matching System through Antitrust
Litigation. AMA J Ethics. 2015;17(2)147151. 14. Croasdale, M. New legislation protects the match from antitrust litigation. Am Med
News. 2004. https://amednews.com/article/20040503/profession/305039954/7/.
Accessed 9 March 2022. Dr. Pappal is a PGY-1 emergency medicine resident at Beth Israel Deaconess Medical Center in Boston, Massachusetts. He has served on the SAEM RAMS Board for three years with special interests in clinical research and resident wellness.
Dr. Artiga, is a PGY-1 in emergency medicine at the University of Cincinnati and serves as a memberat-large on the SAEM RAMS Board.
Dr. Ijaz is a PGY-4 emergency medicine resident at the University of Cincinnati and the RAMS president. Hamza has served on numerous national committees to include the SAEM Program Committee, and the SAEM ED Administration and Operations, Faculty Development, and Virtual Presence committees.
Dr. Jourdan is a PGY-2 emergency medicine/ internal medicine resident at Henry Ford Health, Detroit, Michigan. He is serving in his third year as a member-at-large on the RAMS Board.
Dr. DeFilippo is a PGY-3 emergency medicine resident at NewYorkPresbyterian–Columbia & Cornell and the chair of the RAMS Research Committee.
