Physicians Have a Duty to Disobey

When I was in high school in the 1970s, we were required to read Henry David Thoreau’s essay, Civil Disobedience. We were taught that when confronted with something clearly wrong or unethical, it is our duty to stand up against it—even if it means not abiding by unjust laws or rules. We were to live by our principles and not compromise them.

Perhaps some of these teachings were reflections of the social climate at the time as Thoreau is not taught as widely as it was over 50 years ago. With respect to doing what’s right and just, as physicians, we are taught to place our patients first and act in their best interests.1 While most medical schools no longer require graduates to recite the original Hippocratic Oath, they do require them to recite an updated version of the Oath or a similar public promise to act in the best interests of their patients.2 It is essential that new physicians clearly understand the true meaning of this commitment.

Over the last few decades, the practice of medicine has changed dramatically. In previous years, the physician was the primary decision-maker for virtually all issues related to patient care. Now, we have been largely disempowered, relegated to the role of a health care provider whose actions are severely constrained by third-party payers. When controlled by nonphysician third parties, patient care is inferior to that of physician care.3

By nature, physicians are healers, not “fighters,” and most tend to be passive and “meek.” When issues arise with third parties, physicians typically request changes or improvements rather than demand them. When such changes are not forthcoming, physicians often become discouraged, disempowered, and apathetic. This disempowerment has led to an epidemic of physician burnout, which leads to poor performance, patient harm, mental health problems, and in some extreme cases, physician suicide.

Physicians, who view patient needs through the lens of a healer, equate the best interests of patients with providing individual care (e.g., making the most accurate diagnosis possible, prescribing the most effective treatment possible, performing the most effective and safe procedure possible). Their emphasis is on relieving suffering and attempting to cure the patient when feasible.

When third parties exert power and control over us, it interferes with our ability to act as healers and prevents us from practicing in the best interests of our patients. We can no longer freely order diagnostic tests or prescribe the most effective medications without having to deal with oppressive administrative burdens. In many cases, the most effective medications for a patient’s condition are not on the formularies of third-party payers, and patients often can’t afford alternative options, making treatment essentially unavailable to them.

As physicians, it is our sworn duty to rebel against third-party interference. By failing to do so, we violate our sacred oath to place our patients’ interests first, indirectly causing harm and in some cases, contributing to patient mortality. While we may feel disempowered, we are not acting ethically if we fail to take a stand against these issues.

The overcontrol and micromanagement by third parties take many different forms and are not limited to overregulation and administrative burdens but also reimbursement. For example, when a payer such as the Centers for Medicare & Medicaid Services (CMS) fails to reasonably reimburse a physician for their services, the physician must make business decisions about whether to continue practicing medicine or only accept patients with certain insurance plans. Adverse consequences of such decisions include diminished access to care that can lead to delays in diagnosis and subsequent harm.

According to the law, unjust enrichment is when a party provides a benefit such as a professional service and does not receive appropriate compensation for the service. This refers to the performance of professional services that the other party benefits from with an expectation of being paid according to the value of the service and receiving less than it is worth. When professionals such as lawyers do not receive just payment for their services, they resort to tactics such as lawsuits and strikes.

Because of tension that naturally arises between employers, to meet demands, many employee groups form unions to exert leverage over employers. When a group such as autoworkers or screenwriters go on strike, the employers feel the “pain” from manufacture of fewer motor vehicles or from less creative programming. The parties eventually negotiate and arrive at a compromise.

Unionization has traditionally been restricted to traditional employee-employer scenarios. Physicians are not considered employees unless they have been hired by an organization. However, the definition of what creates an employer-employee relationship is subject to interpretation. Since labor laws favor employees, who are considered to have fewer resources to fight legal battles, if there is an employment dispute, the burden of proof is on the employer as to whether the individual is not an employee.

Several legal tests have been used to determine whether an employer-employee relationship has been created. One of these is the control test, which assesses existence of the following: (1) the employee acts to serve the employer’s interest; (2) the employer controls the methods and means of achieving desired outcomes; (3) the employer consents to have the individual perform work; (4) the employer and the worker have formed their relationship for a single job or for an extended period.4 Another test is economic realities test, which includes factors in the control test plus whether the purported employee has opportunity for profit and loss depending on special skills, investment required to perform the employer’s work, and the extent to which the service is integral part of the alleged employer’s business.5

Applying these tests, in many cases, physician-third-payer relationships meet the criteria for an employee-employer relationship. Physicians clearly serve the interests of payers and given the draconian rules and regulations related to prior authorization, formulary restrictions and others, they exert significant control over the means and methods that physicians use in treating patients. They are often presented with adhesion —ie, “take-it-or-leave-it”—contracts and must accept reimbursement schedules and other burdensome terms. Payers accept or reject physicians in “provider pools,” which is a form of consent for physicians to perform work for them. Both parties have opportunities for profit and loss, yet physicians have the special skills to provide care. Physicians invest in infrastructure to perform work for third-party payers such as hiring individuals to deal with administrative burdens. Finally, since third-party payers are health care businesses, the work physicians perform is integral to their business.

Based on the abovementioned, physicians are de facto employees of third-party payers, including CMS, and should therefore be able to form a nationwide union and bargain collectively like other workers. The concept of a physician union has been noticed by elected Congressional leadership, namely Representative Mark Green of Tennessee.6

When a physician can no longer afford to keep their office open, the resulting lack of patient access to care could result in a delayed diagnosis and death; therefore, the stakes are higher compared to other industries. For example, if autoworkers believe they are underpaid or working conditions are not satisfactory and go on strike, the failure to manufacture automobiles leads to leverage which then results in a compromise. Due to the lack of unionization, physicians cannot collectively advocate for their cause, which is in the best interests of their patients, and essentially have no leverage. Patients suffer and in some cases die because physicians do not have the same resources available to them that other groups have.

As physicians, we clearly understand the concept of direct patient care and how the healing acts we take are in the best interests of our patients’ health. However, we do not realize that when we fail to strongly advocate for our profession, we fail in our commitment to act in our patients’ best interests. We have a sworn duty to do this, and it requires actions that go beyond direct patient care.

In 2023, despite significant inflation, CMS proposed yet another physician reimbursement cut. Organized medical leadership joined together to send strong letters of protest that were signed by over 100 medical organizations.7 Countless letters were sent to Congresspersons, strongly encouraging them to stop the physician pay cuts. Unfortunately, these efforts did not stop the reimbursement cuts from taking effect on January 1, 2024, while hospitals and nursing homes, among others, have received a cost-of-living increase in reimbursement. Once again, the “courteous request” approach has failed.

We must strongly insist on appropriate reimbursement for our services, so that we can continue to keep our offices open and prevent patient harm due to lack of health care access. Also, we must firmly demand that organizations employing physicians have systems in place that allow us to practice the best medicine possible—not place profits over patient care.

Physician leadership has been told on more than one occasion that the only way Congress will act on our behalf is if physicians begin acting like other organized workers—ie, form a national union or at least act like one (M. Kaufmann, MD, past president, American Academy of Dermatology, personal communication). Physicians in Israel are organized in such a manner and in 2023, they went on strike to protest working conditions and won concessions.8 In the United States, physicians employed by healthcare systems have formed unions and been able to exert leverage on employers.9 Given this and the fact that the current situation has created a de facto employer-employee relationship between third-party payers and physicians, the time has come for physicians to organize and form a national union that can advocate for patient care in all its forms, both direct and indirect.

John Wooden, the legendary basketball coach said “The greatest failure of all is failure to act when action is needed.”¹⁰ We have a sacred duty to advocate for our patients, and failure to do so is a breach of this duty. It should not rest well with any physician to sit idly by and fail to act in the interests of their patients. I, for one, have been in communication with union organizers from the American Federation of Labor and Congress of Industrial Organizations and the Israeli Medical Association. While I may be somewhat of a “lone voice in the wilderness” now, my prediction is that when such a union is created, many physicians who are burned out and fed up with the current situation will join to create a unified voice that allows us to effectively advocate for our profession and our patients.

1. Council of Medical Specialty Societies. CCM ethics statement. Accessed March 7, 2024. https://cmss.org/policies-positions/ethics-statement/

2. Weiner S. The solemn truth about medical oaths. American Association of Medical Colleges. July 10, 2018. Accessed March 7, 2024. https://www.aamc.org/news/solemn-truth-about-medical-oaths#

3. Kannan S, Bruch JD, Song Z. Changes in Hospital Adverse Events and Patient Outcomes Associated With Private Equity Acquisition. JAMA. 2023;330(24):2365-2375. doi:10.1001/jama.2023.23147

4. Social Security Administration. How to apply the common law control test in determining an employer/employee relationship. Accessed March 7, 2024. https://www.ssa.gov/section218training/advanced_course_10.htm

5. Employee or independent contractor classification under the Fair Labor Standards Act. Fed Regist. 2024;89(7):1638-1743. Accessed March 7, 2024.

https://www.federalregister.gov/documents/2024/01/10/2024-00067/employee-or-independent-contractor-classification-under-the-fair-labor-standards-act

6. Green M. Americans have a choice: Socialized medicine or health care freedom. The Hill. October 26, 2020. Accessed March 7, 2024. https://thehill.com/blogs/congress-blog/healthcare/522700-americans-have-a-choice-socialized-medicine-or-health-care/

7. O’Reilly KB. New Congress brings new call for Medicare physician pay overhaul. American Medical Association. February 9, 2023. Accessed March 7, 2024. https://www.ama-assn.org/practice-management/medicare-medicaid/new-congress-brings-new-call-medicare-physician-pay-overhaul#

8. Doctors in the U.S. can learn a lot about advocacy and activism from their Israeli counterparts. September 11, 2023. STAT. https://www.statnews.com/2023/09/11/israel-doctors-protests-strike-advocacy-us/

9. Noam Scheiber. Why doctors and pharmacists are in revolt. New York Times. December 3, 2023. Accessed March 7, 2024. https://gphabuzz.com/files/2023-12-04_Pharmacists-Revolt.html

10. Beta Theta Pi Fraternity. A tribute to Beta Theta Pi’s “Brother Wooden.” July 15, 2010. Accessed March 7, 2024. https://issuu.com/betathetapiao/docs/wooden_tribute