| Birmingham 3:30 p.m. Itï¿½s the end of another long workday for a medical resident at the University of Alabama at Birmingham hospital. These residents make less than $40,000 dollars a year for working up to 100 hours a week. It's a grueling schedule, says first year neurosurgery resident Daniel Harmon.
"It's been pretty tough. I would go like a week without seeing my youngest daughter, whoï¿½s 18 months, awake. Iï¿½d leave at 4:30 in the morning and get home about 8 or 9 o'clock if I wasnï¿½t on call ï¿½ and she's already asleep."
The lawsuit claims that the national resident matching program violates anti-trust laws by keeping wages low and work weeks long. Under ï¿½the matchï¿½, medical students and hospitals rank each other. A computer generates a match and, the suit alleges, the student is compelled to take the hospitalï¿½s deal, no matter the pay or hours. The plaintiffï¿½s argue pay is kept artificially low, thanks to an annual survey of residentsï¿½ salaries produced by one of the defendants in the case - the American Association of Medical Colleges. Bob Burgoyne is the AAMCï¿½s attorney.
"AAMC conducts the survey each year in accordance with guidelines issued by the United States Department of Justice and the Federal Trade Commission. We remain confident that the plaintiffï¿½s allegations will not be proved trued.ï¿½
But the plaintiffï¿½s attorney ï¿½ Sherman Marek ï¿½ is equally confident.
ï¿½We believe that these residents are working hard. That they make quite a bit of money for the hospitals. That their long hours are dangerous to themselves and to patients and we think that the anti-trust laws are designed to avoid situations like this and should be applied.ï¿½
Anti-trust law generally promotes unbridled competition, but David Balto, a former policy director of the Federal Trade Commission, says there are exceptions for educational institutions. He cites a case in which the Justice Department challenged a plan by ivy league colleges to limit the amount of scholarship money they gave out.
ï¿½The idea of the colleges was basically the best students could force us into these bidding races and then they would collect all the money and that would leave very little money left over for more average students who might be meritorious in different waysï¿½ and, by the way, more average students might be minority students.ï¿½
The circuit court ruled that even anti-trust cases have to consider the greater good -- that collaboration may serve an important public policy interest at the expense of a smaller group. Itï¿½s an argument that the defense will likely use in the medical residents lawsuits. The issue resonates so strongly in the medical community that itï¿½s even seeped into several episodes of the hit TV show ER.
Neal Baer is a former ER producer. Heï¿½s now executive producer of Law and Order:SVU and heï¿½s a doctor. He graduated from Harvard Medical School and did his own residency at Childrenï¿½s Hospital Los Angeles.
"In England you have to arrange your own residency and itï¿½s an old boyï¿½s network and there are very few female surgeons in England. And I know this because I did a lot of research when we did the character of Corday on ER, who came from England as a surgeon and she came to the United States because she didnï¿½t like the old boyï¿½s network.ï¿½
ï¿½The match system is not a perfect system, but I think itï¿½s a necessary evil,ï¿½ believes Sid Barritt, a 2nd year internal medicine resident at UAB. His wife Millie is also a 2nd year resident ï¿½ they matched through the ï¿½couplesï¿½ program, which helps husbands and wives get placed at the same hospital.
ï¿½Without the match, we would have been bargaining independently for positions somewhere and I think it would have made it even more difficult. With the couples match we were assured of winding up in the same place.ï¿½
The plaintiffs argue that if residents were allowed to bargain independently for their salaries and other benefits, they could strike a better deal. But Bruce Koeppen, dean of the University of Connecticut Medical School, says prestigious hospitals could have the upper hand.
ï¿½I could envision, for example, a program that is viewed nationally as being an outstanding training program could say simply ï¿½ weï¿½re good, you know weï¿½re good, therefore if you want to come here youï¿½re going to have to make a sacrifice and weï¿½re only going to pay you 25-thousand dollars a year.ï¿½
Plaintiffï¿½s attorney Sherman Marek doesnï¿½t think that would happen.
ï¿½According to our labor economists, and we have some of the best in the country, they donï¿½t believe that will happen. And one of the things that they point to is the market for young lawyers, for example. The best firms hire the top law school graduates and they pay more money than other firms, not less.ï¿½
But thatï¿½s not necessarily a good thing for medicine, says UAB resident Sid Barritt.
ï¿½Hospitals are going to be able to afford less physicians. Our work hours will then get longer because thereï¿½s always going to be the same number of patient to take care of but now less physicians to do it.ï¿½
This case is somewhat unusual in that it seeks not to certify not only a class of plaintiffs ï¿½ all doctors who did residencies after 1998 ï¿½ but also a class of defendants. Itï¿½s seeking money from all non-governmental teaching hospitals in the U.S. That troubles anti-trust expert Steve Bizar, who says it could bankrupt hospitals that take the lead in treating challenging medical cases.
ï¿½I mean just think about it ï¿½ it would be an enormous number of hospitals ï¿½ all the hospitals that we would want to go to if we were ill or if our family were ill.ï¿½
Nobodyï¿½s put an exact dollar amount on the potential damages in this case, but back pay for 200,000 residents over eight years? It could be in the billions. Enough to tempt residents like Daniel Harmon, who doesnï¿½t support the lawsuit but has $125,000 dollars in student hanging over his head.
ï¿½Itï¿½s hard to turn down that kind of money ï¿½ especially for somebody thatï¿½s married and has children.ï¿½
That worries Dr. Edward Hill with the American Medical Association, which has been dropped as a defendant in this case. Even though the AMA agrees resident salaries are too low and the work hours are too long, Hill says if this suit is successful it will destroy medical education in the U-S.
ï¿½We have a system that has been built up over many, many, many years that is the best training program for medical education in the worldï¿½ would suffer an enormous blow, a destructive blow.ï¿½
This case isnï¿½t expected to reach trial until 2007. In the meantime, a new crop of fresh medical school grads will ï¿½matchï¿½ for their residencies next month.
~Tanya Ott, February 23, 2004
"I think what's important to emphasize is that this was a preliminary ruling. These were all motions to dismiss and courts often deny those motions because they are quite preliminary. The case will go forward, but the ruling is not yet on the merits that there is an anti-trust violation."
~ Carl Tobias, University of Richmond law professor
"There's a compromise. You still run the match system, just don't force people to take who they match with. And then they could have a negotiation after they find out who they match with and if they don't like the deal they're getting they could go somewhere else. In that case, I think you get the benefits of the match without the harms to competition that the plaintiffs are complaining about."
"I wouldn't be surprised if the ultimate resolution is some sort of congressional action because it does seem like an area where it's just not clear that a whole lot of competition is the right approach."
~ Mark Fordham, Fordham University law professor