Legal issues to consider before staging a walkout
Angry as they were, the physicians who participated in New Jersey's physician "walkouts" last year didn't exactly throw down their stethoscopes and march out the door in a blind rage.
At OB/GYN Ruth Schulze's practice in Bridgewood, for example, physicians and staff spent weeks preparing themselves -- and their patients -- for the protests, which lasted several days to a week. As a result, Schulze says, the events came off without a hitch.
"We obviously needed to cancel patients," Schulze recalls. "We needed to inform them that we were not canceling them at a whim, but for a very important purpose, and that's because we wanted to be around [this] year. By and large, patients were incredibly supportive and understanding."
With the malpractice crisis showing little sign of abating, physicians all over the country are growing desperate. Collective walkouts (the physicians involved prefer to call them protests or rallies, and the semantics are important, as we'll see) such as those in New Jersey, Pennsylvania, and several other states may spread nationwide.
And for good reason. The events have succeeded in putting on the front pages an issue that to many voters seems arcane -- and in some cases the mere threat of a work stoppage has resulted in physicians' gaining certain concessions, though so far not the legislative remedy they seek.
"They were effective in bringing it to the public's attention," says James Tayoun, a vascular and general surgeon in Philadelphia and president of Pennsylvania's Politically Active Physicians Association (PAPA), referring to that state's walkouts in August 2002 and April 2003. "There was nothing happening until the first event. ... You need a big budget to be able to finance advertisements on the problem. The only way to bring it to the front burner was to have a rally so the press would cover it, and that's what they did."
If you're like most physicians, you're angry about skyrocketing insurance premiums, but if your colleagues asked you to walk away from your practice for a day, a week, or several weeks to make a political point, would you do it?
It's tempting. But there are legal issues to consider -- you aren't allowed to "abandon" patients, and as a competitive, independent business, formally "organizing" with your colleagues risks antitrust violations.
Moreover, the event could backfire from a public relations and business standpoint. You can't assume your patients will see the issue your way -- especially if you fail to explain it to them. And because patients are more likely to sue you when they're angry at you, your rally could have the paradoxical effect of landing you in exactly the sort of trouble your were protesting against.
These hurdles are not insurmountable, but they should not be ignored.
Talk to patients first
Fortunately, with careful planning and proactive patient communication, you can get most of your patients on your side prior to your walkout. In fact, says Tayoun, the advantages of good pre-protest communication go beyond protecting yourself. Because of the respect patients generally have for their doctors, it's worth it to take a few minutes to talk to them about the issue -- even describing in specific terms how it's affecting your practice.
"Patients understand what we tell them in our offices," says Tayoun. "You don't want them just reading what the press is going to write. You want them hearing it from you."
PAPA's first physician rally lasted a week and was mostly contained to Philadelphia doctors; the second was a statewide event that lasted as long as 10 days. In preparation, the association printed fliers and posters for practices to exhibit in their offices, recorded messages for them to play on their telephone systems, and encouraged doctors to discuss the issue with anyone who'd listen. PAPA even sought to include patients in events connected with the protests.
In his own practice, "I explained to patients that my insurance went from $28,000 a year to $134,000 in four years without a lawsuit," recalls Tayoun. "The same company that's charging me that will charge me $34,000 in another state. As soon as you tell patients the numbers, they can see it. ... You actually become like a folk hero to the people in your community -- you're fighting for them."
The challenge is in striking a balance between inconveniencing patients and endangering them, between angering them and ensuring their anger is directed away from you.
Make sure patients understand that if they are urgently ill, they can still receive care at the emergency room. And if they fall into a category of patients for whom your practice is making special arrangements (for instance, a pregnant woman who may go into labor during your protest), explain what those arrangements are --in writing as well as in person.
"I think just by participating, you are increasing your risk of being sued," says Schulze. "And we know that it's that doctor-patient relationship that is a big risk factor in being sued, rather than the actual legitimacy of the medical care."
Schulze, who had served as the president of her county medical society, had a run-in with an angry patient during the taping of a televised forum about the issue.
"She'd had a fever, and said, 'I couldn't see my doctor, and I wanted my doctor,'" Schulze says. "I spent several minutes explaining: 'I'm sure your doctor would have wanted to be there for you, but they couldn't because they were making a point so that they can be there for you next year.' And that's the point to the public: we want you to have the doctor of your choice on any given day, but the circumstances right now are making it almost impossible."
There are two potential legal pitfalls to an organized physician walkout. The first concerns the principle of patient abandonment.
You're entitled to terminate the physician-patient relationship for any number of reasons, but you can't simply drop a patient without notice. You're expected to encourage patients to find another doctor and to continue treating them for a reasonable period of time (typically 30 days after you provide notice of termination) while they make arrangements.
"If the physician-patient relationship is terminated without proper notice and referral to a subsequent practitioner, then any harm that befalls the patient is the liability of the doctor," says Mitchell Simon, a health law professor at Franklin Pierce Law Center in Concord, N.H.
Is it abandonment if you simply don't show up for work for a few days? Probably not. For one thing, you're not terminating the relationship -- you're merely suspending it. And five or 10 days is a short enough period of time that a patient seeking to sue you for abandonment would have difficulty making the case that she was harmed by your absence; if she needed care urgently, that's what emergency rooms are for.
Yet because abandonment is a tort, you can be sued for it anyway. The suit may be without merit and be quickly dismissed, but that doesn't mean someone won't try.
"This is where the nature of the justification of the action comes into play," says Simon. "Do I want a jury to know I was not treating people because I was out there protesting? If it's a jury that believes the tort system is out of control and they see doctors as victims, they might sympathetic; if it's a jury that believes doctors have let a person get caught in this battle between them and lawyers and legislatures, well, it's potential claim."
Simon often presents his law students with a hypothetical scenario in which a pregnant woman tries to receive prenatal care from two physicians. The first turns her down because her practice is full; the second can't see her because he is participating in a physician walkout.
"I'm always struck," he says, "by the fact that my students are almost invariably hostile to Doctor 2, and much more understanding of Doctor 1, even though the exact same 'harm' befalls the patient either way. This issue of physician walkouts is a new area, and it isn't clear that if someone were to get a case to a jury that juries would have the same positive feelings toward physicians that they usually do."
Wary of such allegations, Schulze arranged for a special walk-in clinic for pregnant patients during the protest. Her practice also made arrangements with the local hospital to ensure that patients who arrived there in labor or experiencing difficulty would be taken care of. "I think we got our point across in a very responsible fashion," she says.
The second legal issue deals with antitrust rules, violations of which can land you in criminal court. This is where terminology becomes important: as independent businesses, physician practices are not permitted to band together in a conventional labor union or participate in group boycotts; strikes and job actions are the province of labor unions. On the other hand, physicians are citizens like everyone else, and are entitled to stage an orderly protest or rally.
"Clearly it wasn't a walkout or a strike," says Schulze of her state's protests. "It was a statement -- if you see the circumstances under which you're working are becoming unduly onerous, it's every citizen's right to call attention and protest."
Nevertheless, Schulze says she was careful, in planning sessions with other physicians, to make it clear she wasn't telling them what to do -- only what she was going to do. Such word-parsing is "absolutely the right advice," says Simon, but he questions its effectiveness in convincing anyone there was no actual complicity among the physicians.
A key difference between the doctors' actions and a strike is that a strike usually lasts until the issue is resolved one way or another. And strikers act against their employers. The physicians closed down their own businesses and knew they'd be going back to work after the protest period was over, regardless of its effectiveness. And as Tayoun notes, the physicians engaging in such actions are not seeking direct benefits such as higher pay, as strikers do, but policy changes that they believe will benefit them -- and society -- in the long run. Collective actions for purely political reasons have tended to be viewed more favorably by courts.
"A rally's a rally," he says. "We're not asking for money. We're not asking for pay raises. So it's not like we shut down to get these demands met -- we shut down to bring the public's attention to the issue."
To make sure you're remaining on the right side of the law, Robert Conroy, a private practice attorney and general counsel for the Medical Society of New Jersey, suggests you get guidance from your state and local medical association -- the association won't directly help you organize, lest it be labeled a de facto labor union, but it can provide moral support and advice about the legal issues involved. You might want to consult your own attorney, if you have one.
But nothing is more important than your efforts to communicate directly with patients -- well in advance of any protest that includes closing shop -- about exactly what you're doing and why. Their support offers your best chance at a protest that will actually help accomplish change -- and it's your best protection against the negative consequences of activism.
Bob Keaveney, editor for Physicians Practice, can be reached at firstname.lastname@example.org.
This article originally appeared in the January 2004 issue of Physicians Practice.