Can Joint Negotiation Restore Physicians' Professional Autonomy?

  1. David C. Hsia, JD, MD, MPH
  1. Dr. Hsia: Agency for Healthcare Research and Quality; Rockville, MD 20852

    The defining characteristics of a learned profession include autonomy (self-direction, self-discipline, and self-employment), authority (abstract body of knowledge and prolonged formal training), and legitimacy (strong code of ethics and an obligation to place client interests above personal gain) (1). In the mythic past, the physician alone decided what was best for the patient—indeed, had a duty to do so. The advent of managed care and health plan consolidation has greatly eroded physicians' traditional autonomy by interposing health plans' decisions about what services warrant payment and who should provide them (2).

    The position paper in this issue proposes to reassert physicians' autonomy through joint negotiation with insurers about quality, access, and payment (3). However, the paper renounces the traditional mechanisms for compelling negotiation—job action (“work to rule”), price fixing (“usual, customary, and reasonable”), and mandatory membership (“closed shop”)—and would also prohibit joint negotiation by housestaff. Although the goal of reasserting professional autonomy may be laudable, several of the paper's assertions warrant continued discussion. Does the proposed solution (joint negotiation) solve the problem (loss of autonomy)? What are the unintended consequences?

    Employees or Proprietors?

    Antitrust law applies to firms (for example, corporations, partnerships, and sole proprietors) (4). Labor law applies to employees. Extensive judicial precedent explores the distinguishing characteristics of employees versus independent contractors. Antitrust law prohibits “restraint of trade” (5). Labor law governs the relations between employers and unions. Antitrust law does not apply to labor unions (6), and labor law does not apply to cartels of nonemployees. Antitrust and labor law therefore intersect only under limited circumstances, such as unions conspiring to restrain trade or …

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