Filed under: AMA, Health Law, Physician Compensation
Given that noncompetition clauses are ubiquitous, whether in independent practice groups or in the increasingly common hospital or health system employment of physicians, the AMA’s disapproval of them seems, at best, quixotic. The AMA’s Principles for Physician Employment, adopted last November, forthrightly states that “[p]hysicians are discouraged from entering into agreements that restrict the physician’s right to practice medicine for a specified period of time or in a specified area upon termination of employment.” § 3(f). Noncompetes, of course, do both.
The Principles as a whole were clearly driven by the increasing phenomenon of hospitals employing doctors, not merely providing them privileges, and address a number of areas where the “new normal” for physician work requires reassessment of old patterns. Thus, the Principles address conflicts of interest, medical staff relations, and the continuing of privileges when employment terminates.
Given the clear purpose of the document in trying to maintain some degree of physician independence from their hospital employers, the section addressing noncompetes is a curious provision. It adds an air of unreality to what, presumably, is a document intended to affect real world decision. And its phrasing is equally odd: Self-interest, of course, points towards not restraining a physician’s right to compete. Presumably, then, postemployment covenants not to compete are routinely signed by doctors because they are extracted as a condition of employment. What additional motivation or leverage the Principles might offer to resist employer demands is dubious.
It is true that the law frowns upon noncompetition agreements, which means that they are subjected to more scrutiny than other contracts; usually this is framed in terms of having to be no broader than necessary to protect the employer’s legitimate interest. And employers have no legitimate interest in preventing competition per se; rather, they have an interest in protecting patient relationships and confidential information. Further, restrictive covenants are unenforceable if they are contrary to the public interest, and some states show more of a disposition to strike down or narrow physician clauses on that ground. And a small number of states actually bar such postemployment restraints in the medical context.
Given the stakes involved, physician noncompetition agreements are frequently litigated, either by hospitals or practice groups trying to enforce contractual restraints or in declaratory judgment actions brought by doctors subject to such provisions seeking to have them invalidated. It’s possible, then, that the Principles might be relevant not in barring physician, noncompetes but in convincing a court that a particular clause is invalid. Possible – but unlikely, given the divergence between the Principles’ prescription and pervasive industry practice on the ground.
Another possibility might be to seek to empower physicians as employees. In the brave new world of hospital employment of physicians, doctors lose their independence but gain labor law protection. Maybe in a collective bargaining context, the Principles can be deployed by a physician’s union in an effort to eliminate or narrow such restraints.
Or maybe the section merely reflects the AMA’s long-standing resistance to such clauses, however ineffective it has been. At various times, it has viewed noncompetes as unethical (1933), “not unethical” (1960), “not in the public interest” (1980) and to be discouraged in any event but unethical if too broad (1996). S. Elizabeth Wilborn Malloy, Physician Restrictive Covenants: The Neglect of Incumbent Patient Interests, 41 Wake Forest L. Rev. 189, 217-18 (2006).
A skeptic might say that the failure of prior hostility to have much effect on either practices or the law means that the AMA is continuing to tilt at windmills. But the counter argument is that such a statement might influence other jurisdictions to join those few now barring such physician covenants.
Filed under: AMA, Proposed Legislation, Public Plan
On July 4th, we wrote about what seemed an abrupt change in AMA policy regarding the Public Plan as voiced by AMA President, Dr. J. James Rohack in an interview with CNN –and about the organization’s declining membership: “AMA About Face on Public Plan?” President Rohack responded to this blog. In the interest of fairness, and because people sometimes do not read comments from older posts, below is AMA President Rohack’s comment, complete and without edit or comment:
AMA policy is formed by the AMA’s voting House of Delegates – the nation’s only democratic assembly of physicians and medical students representing all state and specialty medical societies. I shared with CNN the AMA’s new policy – which was created and voted on by our physician delegates at our annual meeting in June – that the AMA supports health system reform alternatives consistent with AMA principles of pluralism, freedom of choice, freedom of practice, and universal access for patients.
This evolution in policy is consistent with the AMA’s strong support for health reform this year that provides high-quality health care coverage for all Americans. Our commitment is clear. Over the last few years we’ve spent $15 million dollars to call attention to the uninsured crisis and lay the groundwork for health reform that gets all Americans covered through our Voice for the Uninsured campaign.
We don’t yet know what form a final bill will take, which is why we will carefully study all options that make the system better for America’s patients and allow physicians to provide high-quality care. The AMA will stay actively engaged to get reform this year that improves the system for patients and physicians.
Filed under: AMA, Proposed Legislation, Public Plan
CNN reports that Dr. J. James Rohack, the “new president of the American Medical Association, which represents the interests of the nation’s doctors, said Wednesday the group is open to a government-funded health insurance option for people without coverage.”
“Dr. J. James Rohack told CNN the AMA supports an ‘American model’ that includes both ‘a private system and a public system, working together.’”
As we posted back on June 11, 2009 the AMA had announced the day prior that it would “lobby against the inclusion of a Public Plan in health care reform legislation.”
At that time, many people made note of the AMA’s long history of opposition to “public” health measures such as Medicare and Medicaid, and as we noted in our post, “AMA to Oppose Public Plan–Again,” “at least one physician, Dr. Chris McCoy, Policy Chair for the National Physicians Alliance…publicly quit the AMA in response.”
But that was way back on June 11th , a full twenty days ago. Apparently something has changed since then? Although Dr. Rohack became president of the AMA on June 16th, under the circumstances that alone seems insufficient to account for the purported change.
Insurance & Financial Advisor Webnews describes the situation thus:
The new president of the American Medical Association appears to have confused or complicated the organization’s position on a public health insurance option during a CNN interview.
Dr. J. James Rohack, a physician in Texas who became president of the largest doctors’ group in the nation June 16, said in a live interview Wednesday (July 1) with CNN’s Tony Harris and Medical Correspondent Elizabeth Cohen that the group wants people who lack health insurance to be put into the Federal Employee Health Benefits Plan, the insurance program for federal employees and members of Congress.
“If it’s good enough for Congress, why shouldn’t it be good enough for individuals who don’t have health insurance provided by their employers,” Rohack said in the nine-minute interview.
A call for comment from the AMA was not returned.
One of the more interesting things about this apparent change of heart is that Dr. Rohack’s ascendancy to the post was preordained , so to speak . The AMA chooses it’s “president-elects” a full year in advance (the present AMA president-elect is Dr. Cecil B. Wilson, named on June 15, 2009, will take office in June, 2010 ).
According to this Reuters Press Release from June 17, 2008 announcing Dr. Rohack as the president-elect, Dr. Rohack was certainly no stranger to the inner sanctum of AMA policy decisions prior to becoming president. He did not just jump upon the scene:
“Taking a leadership role with the AMA in 2001 when he was first elected to theAMA Board of Trustees, Dr. Rohack served a one-year term as chair of the AMA Board of Trustees in 2004-2005. He was reelected to a final four year term in 2005.”
Presumably, as one in “a leadership role” this year as both a Board of Trustees Member and as president-elect, Dr. Rohack was privy to, and part of, the AMA’s announcement (five days before he assumed the presidency) that they would “lobby against the inclusion of a Public Plan in health care reform legislation.” Therefore, his ascendancy seems insufficient to account for the change .
The question then is what could have changed in those twenty days between proclamations besides the ascendancy of Dr. Rohack? New research? A close reading of Profs Cortez, Greaney, Jost, Jacobi and Pasquale? I think not. Although reluctant to criticize for a reasoned and responsive change in direction (to reconsider carefully in the face of conflicting data is a good thing), this sudden (and unexplained) shift of direction smacks of politics and P.R. from an organization which is no stranger to either. I can’t help but find myself thinking of Tess of the d’Urbervilles when faced with her “converted” malefactor Alec:
“Don’t go on with it!” she cried passionately, as she turned away from him to a stile by the wayside, on which she bent herself. “I can’t believe in such sudden things! I feel indignant with you for talking to me like this when you know–when you know what harm you’ve done me!
I’m not sure what harm the AMA has actually done, but their repeated opposition to public options such as Medicare, Medicaid, early forms of HMO’s which sprung up in the Great Depression era, and the present Public Plan have not helped.
Keep your eyes on the spin.
Having said all that, a final note. CNN reported on
“the American Medical Association, which represents the interests of the nation’s doctors…”
Whether or not the AMA can be said to actually “represent the interests of the nation’s doctors,” is, perhaps, subject for debate. A quick google search on the AMA brings up some interesting figures: “the percentage of doctors who belonged to the organization declined from the mid-1960s on. At the height of the group’s campaign against Medicare, the AMA claimed at least 70 percent of American doctors as members. By the mid-1990s, the AMA represented only about 40 percent of American doctors.”
The 40% number of the mid-1990′s is a fond memory for the AMA. The present number for American doctor membership is closer to 22 ½ % — and that’s counting students and interns (who pay reduced yearly dues of only $20 and $45 respectively).
On June 14, 2009, Emily P. Walker, Washington Correspondent, MedPage Today reported on the present status of the AMA:
Although the group boasts close to 240,000 members, 29% are students or residents, who pay sharply discounted dues. Still more of the members are retirees, whose dues are also cut.
The AMA’s Council on Long Range Planning and Development had more specificity. It reported that there are 1,060,333 physicians and medical students in the United States and 238,977 of them AMA members.
Of those members, 20.5% are medical students, 9% are residents, and 36.5% are 56 or older. As one delegate put it, “we have a lot of students and a lot of old docs, but not a lot of practicing physicians.”
Filed under: AMA, Private Insurance, Public Plan, The Uninsured
The New York Times reports that the AMA has announced that it will lobby against the inclusion of a Public Plan in health care reform legislation. Merril Goozner over at GoozNews has posted an interesting Real Politik analysis worth a view, and at least one physician, Dr. Chris McCoy, Policy Chair for the National Physicians Alliance, has publicly quit the AMA in response. In his post over at the Huffington Post, “Dear AMA: I Quit!,” Dr. McCoy points out the inconsistencies in the AMA’s position in regard to its own research, and the group’s less than progressive history when it comes to health reform. The piece is well worth quoting at length:
But this should not have surprised me: when health care reform has been necessary, the AMA has always stood on the wrong side of history. The AMA opposed the creation of Medicare in the 1930s, when it was first proposed as part of Social Security. The AMA opposed Medicare again in the 1960s, going as far as to hire an actor named Ronald Reagan to read a script to the AMA Auxiliary declaring Medicare as the first step toward socialism, and concluding with the statement that if Medicare were to become law, “One day, we will awake to find that we have socialism…. One of these days, you and I will to spend our sunset years telling our children, and our children’s children, what it was once like in America when men were free.”
That was 50 years ago … and none of that has come to pass. And yet this year, the AMA argues that a public health insurance plan will destroy the private insurance market. I challenge the AMA leadership to cite a single example of an industry where involvement by the government has lead to the elimination of private enterprise. This has not been the case with the creation of public police forces in the second half of the 1800′s (private security companies still exist), we have a robust system of public and private colleges existing the same market, and bookstores still sell books despite the presence of public libraries. A mix of public and private enterprises in the market is a truly American solution to ensuring equal access, as well as competition to drive quality improvement. In fact, the creation of the public health insurance option will *increase* competition, as demonstrated by the AMA’s own studies showing that 94% of health insurance markets only have 1 or 2 providers in the market.
It would appear that the AMA’s position against the public health insurance market is driven by out-dated political ideology that blindly supports private industry rather than a careful examination of the facts of the current situation.
Filed under: AMA, BLS, Bureau of Labor Statistics, Physician Compensation
Yesterday’s post displayed recent Bureau of Labor Statistic figures concerning physician compensation, and offered a link to recent median physician compensation data approved for use by Centers for Medicare and Medicaid Services (CMS) for calculations regarding direct graduate medical education under 42 CFR 413.78(f). The producer of this data, AMGA, also offers an interactive physician compensation survey which shows “average” and “starting” compensation for various specialties. A click on the arrow underneath “average” will sort from lowest to highest.
Here below is a list of a few of the CMS approved median physician compensation figures for a number of different specialties. The numbers are taken from the 2008 report.
The median compensation for a practitioner:
- Pediatric & Adolescent, Internal 161,444
- Pediatric & Adolescent, Infect. Disease 174,154
- Family Medicine, w/out Obstetrics 176,280
- Family Med., w/out Obst., Branch* 190,182
- Geriatrics 179,344
- Podiatry: 180,080
- Transplant Surgery, Kidney 368,750
- Dermatology, Branch* 301,111
- Dermatology, Mohs 423,848
- Not neural, Non-Interventionist, Radiology 420,858
- Mammography 540,028
- Orthopedic Surgery, Spine 611,670
*Branch is defined by AMGA as: These specialties have the same basic definition as the main specialty. These physicians located in small satellite or branch offices at least five miles from the main campus. The branch office practices primarily as its own separate entity, and often has different compensation and/or performance expectations than its main campus colleagues, there would be no teaching responsibilities at these locations.
With these numbers, over the course of ten career years, if calculated at a constant rate without regard to future increases in compensation, the median paid “Family Doctor, Branch” will have earned $1,900,182. During those same static ten years, a “Mammographer” will have earned $5,400,280. If the Family Doctor were to consult with the Mammographer at the end of those ten years, she would be doing so with someone who had made $3,500,098 more than she–nearly 3 times as much. If that same Family Doctor were to then consult with someone from the lowest paid of the three categories of Radiologist, Not neural, Non-Interventionist, she would be doing so with someone who had made $4,208,580 during that time-which would be $2,308,398 more than she–or more than twice as much.
Perhaps by way of consolation for the PCP, the Geriatrics specialist and the Pediatric Infectious Disease specialist would have fared worse, and even the Kidney transplant specialist who consults with the radiologist would be speaking with someone who had made a half of a million dollars more than he did.
But perhaps it is not consolation enough; the AMA has reported that the nation faces a shortage of 35,000 to 40,000 Primary Care Physicians.