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July 18, 1999, Sunday, Final Edition

SECTION: OP-ED; Pg. B07

LENGTH: 776 words

HEADLINE: Doctors Unite?

BYLINE: Robert Pitofsky

BODY:

If you are covered by a managed-care plan and get sick, who do you want to control decisions about health care procedures: your doctor or the insurance company that supervises the plan? Almost all would answer they want their doctor to decide, and they are upset -- even outraged -- at the extent to which executives preoccupied with cost containment have intruded into the decision-making process.

HMOs and other managed-care approaches first came into existence because health care costs were spiraling out of control and there was (and is) a legitimate need for cost containment. But now doctors complain that HMO managers have injected themselves into every detail of medical practice.

Perhaps the balance of power between HMOs and other managed care plans on the one hand, and doctors and other health care professionals on the other, does need to change. Unfortunately the decision of the American Medical Association to endorse creation of a bargaining unit that will allow doctors in the future to bargain collectively with HMOs is the wrong answer to a serious problem. Many doctors who are employees already can join unions. But the National Labor Relations Board consistently has held that self-employed doctors -- just like self-employed lawyers, architects and accountants -- are "independent contractors," and not laborers. Collective bargaining by competitors eliminates price and quality competition, and can be a conspiracy to fix prices or a boycott that violates the antitrust laws.

Right now, nothing prevents doctors from joining forces and advocating to insurers or employers who hire those insurers that some decision by an HMO affecting health care procedures is wrong. If doctors want to go beyond advocacy to bargaining, they can organize joint ventures -- such as a clinic -- and the antitrust laws would pose no threat.

If they don't want to join forces with other doctors in a clinic and are upset about quality of care decisions, they can individually quit the HMO and go to some other HMO that they think is more reasonable on quality-of-care issues.

Finally, it is doubtful whether the antitrust laws are really a threat even to independent doctors who join forces to bargain with HMOs on behalf of patients. The American Bar Association examined antitrust enforcement actions over the past 20 years and found that every one was aimed at efforts by doctors to increase their incomes rather than represent their patients on quality-of-care issues.

Some might respond that if the government isn't bringing any antitrust cases challenging joint negotiation to improve patients' quality of care, what is wrong with clarifying the situation with an exemption? The answer is that the exemption that is proposed is overkill. It would allow doctors to boycott HMOs that do not pay them 10 or 20 percent more money. If that happens, employers forced to pay more are likely to curtail coverage, patients will pay more through copayments, and as a result the number of people not covered by health insurance (now, about 43 million) will increase.

It will also allow doctors to get together and boycott lower cost but worthwhile alternative forms of health care. There is a long history of successful antitrust challenges to doctors who acted through hospitals and health care plans to keep out nurse midwives, psychologists and podiatrists. History indicates that while most doctors would not misuse an antitrust exemption, some would with unfortunate results for all.

So what is the answer, if you assume as I do that HMOs and other insurers play a legitimate role in controlling excessive costs, but have assumed too much power over the practice of medicine? I believe the answer is for Congress to pass a strong Patient Bill of Rights. Every Bill of Rights proposal I have seen provides that doctors and their patients who believe that an HMO has made a wrong decision may request that the decision be reviewed by an individual or group that is independent of the doctors or the HMOs.

The goal ought to be to give doctors and other health care professionals the ability to reassert control over their professional lives, but not to give them a license, alone among all professions in this country, to do little more than increase their incomes by engaging in price fixing. Traditionally, unions are organized to increase salaries and improve working conditions for members. They do not usually bargain over the quality of the product that their members produce. If quality of care is the goal, then a union is the wrong prescription.

The writer is chairman of the Federal Trade Commission.

LOAD-DATE: July 18, 1999