NYT: Medical Establishment Hopes to Thwart Residents' Lawsuit

CAL/AAEM News Service pottsbri@yahoo.com
Wed, 20 Aug 2003 10:56:00 -0700 (PDT)


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August 18, 2003Medical Establishment Hopes to Thwart Residents' LawsuitBy NEIL A. LEWIS


ASHINGTON, Aug. 17 — The nation's medical establishment has grown increasingly anxious about an antitrust suit contending that residents are forced to participate in a system that ensures they work long hours and receive low pay.

Medical schools and teaching hospitals, the principal defendants, are so worried that in recent weeks they have asked their allies in the Senate to enact legislation that would derail the suit, inoculating them from damages that might otherwise run into the hundreds of millions of dollars.

The defendants maintain that the suit, filed by several young doctors, has no merit, and express confidence that they would prevail in court. But they are clearly troubled by the possibility the suit could upend the decades-old system of medical residents' selection and deployment around the country.

The defendants have also hired lobbyists with previous connections to two senators who have been most directly involved in the effort to introduce such legislation: Hillary Rodham Clinton of New York and Edward M. Kennedy of Massachusetts, both Democrats.

At issue is the National Resident Matching Program, known in medical circles as the Match. Every March, a computer determines where new graduates of medical schools will spend the next several years as residents, gaining experience and honing their skills.

More than 80 percent of first-year residency positions are offered exclusively through the program, which is based on rankings submitted both by hospitals, which list the graduates they want, and the 15,000 or so graduates, who list the hospitals they prefer. Both sides agree in advance to accept the pairing. 

The suit contends that the Match keeps salaries artificially low — the annual pay for residents is about $40,000 and varies only marginally regardless of region or speciality — and crushes any competition that might force teaching hospitals to offer better conditions like shorter working hours. The industry's defense of that system has long been that a residency is not a job per se but instead a continuation of medical education in which the resident ought to be entirely immersed.

Though no legislation has yet been introduced, one version the defendants are seeking would exempt the Match from private antitrust suits, effectively ending the case.

Dr. Jordan J. Cohen, president of the Association of American Medical Colleges, which helps run the Match, said the effort to get Congressional help was important.

"It's precisely because the suit has no merit that we are going this route," Dr. Cohen said in an interview. Otherwise, he said, the case may not be resolved for two or three years, and "the resources that are going into the defense of this lawsuit are enormous."

A law declaring that the matching system is legal, he said, would dispel "the cloud that has been hanging over the Match." If some hospitals, fearing liability, instead withdraw from the program, the uncoordinated system that existed before the Match was adopted nearly 50 years ago could be resurrected, creating what the industry describes as a kind of chaos.

Dr. Herbert Pardes, president of New York Presbyterian Hospital, said he was surprised and dismayed that some young doctors had sued.

"This system has worked very well for some 50 years," Dr. Pardes said. "It has enabled medical students to get the best possible residency choice."

He added that medical school graduates were most interested in the quality of the program they were matched with and that issues like compensation, although important, were secondary.

But the lead plaintiff, Dr. Paul Jung, now a medical officer with the Food and Drug Administration, says he is convinced that the Match "is the linchpin" that allows hospitals to require residents to work 80 to 100 hours a week for low salaries. 

"What the defendants are trying to do is to subvert the whole judicial process by going through the backdoor, using their friends in Congress to find a way out of this lawsuit," Dr. Jung said. "We want our day in court."

Senator Charles E. Schumer, Democrat of New York, who has also been involved in discussions about legislation granting the Match an antitrust exemption, said: "This is not a black-hat-versus-white-hat issue. Medical residents and interns who work hard, and medical schools and teaching hospitals who provide a lot of care for poor people, are both good forces in our society. We need to figure out a way to be fair here."

A spokeswoman for Senator Kennedy said he thought that the Match had been crucial to producing "the best physicians in the world" and that "if the Match is in jeopardy, Congress has to protect it in a way that meets the needs of both teaching hospitals and medical students."

The suit, brought in May 2002, is before Paul L. Friedman, a federal district judge in Washington, who has not ruled on the defendants' motions to dismiss. 

Lawyers for the plaintiffs are trying to have the suit made a class action, meaning that it would apply to any person who graduated from medical school in the four years before it was filed, four years being the maximum under the statute of limitations for antitrust violations.

The defendants have hired Jeffrey Blattner and Carolyn Osolinik, two former senior staff lawyers for Mr. Kennedy. They both were counsel on the Senate Judiciary Committee, which handles antitrust legislation, and Mr. Blattner, an antitrust expert, was special counsel to the Justice Department in the government's suit against Microsoft. 

A senior Senate aide said in reference to those people that the medical schools had an advantage in pressing their case because they were "heavily lobbied up." Though it is not uncommon for Congress to be asked for an antitrust exemption, the lawmakers rarely comply.

"At any given time, someone is asking Congress for an exemption," said one antitrust expert, Prof. Robert Pitofsky of the Georgetown University Law Center. "But relatively few are granted, and a lot depends on the political clout of the group seeking the exemption and the merits of the case."

It is even more rare for Congress to intervene once litigation is under way, though it did so in 1995 to protect charities that were being sued for colluding in setting rates on donated annuities.

Sherman Marek, a Chicago lawyer representing the plaintiffs, said he conceived of the suit when he was representing some young doctors in an unrelated matter and learned of their long hours and low pay.

"It's no secret to residents that they were being mistreated," Mr. Marek said. "Sometimes it takes a lawyer to educate people about a legal right."

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Brian Potts 
Managing Editor, CAL/AAEM News Service 
MS-IV, UC-Irvine

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<DIV><IMG alt="The New York Times" hspace=0 src="http://graphics7.nytimes.com/images/misc/logoprinter.gif" align=left border=0><BR clear=all>
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<H5>August 18, 2003</H5><NYT_HEADLINE type=" " version="1.0">
<H2>Medical Establishment Hopes to Thwart Residents' Lawsuit</H2></NYT_HEADLINE><NYT_BYLINE type=" " version="1.0"><FONT size=-1><STRONG>By NEIL A. LEWIS</STRONG></FONT><BR><BR></NYT_BYLINE>
<TABLE cellSpacing=0 cellPadding=0 align=right border=0>
<TBODY>
<TR>
<TD></TD></TR></TBODY></TABLE><NYT_TEXT>
<P><IMG height=33 alt=W src="http://graphics7.nytimes.com/images/dropcap/w.gif" width=46 align=left border=0>ASHINGTON, Aug. 17 — The nation's medical establishment has grown increasingly anxious about an antitrust suit contending that residents are forced to participate in a system that ensures they work long hours and receive low pay.</P>
<P>Medical schools and teaching hospitals, the principal defendants, are so worried that in recent weeks they have asked their allies in the Senate to enact legislation that would derail the suit, inoculating them from damages that might otherwise run into the hundreds of millions of dollars.</P>
<P>The defendants maintain that the suit, filed by several young doctors, has no merit, and express confidence that they would prevail in court. But they are clearly troubled by the possibility the suit could upend the decades-old system of medical residents' selection and deployment around the country.</P>
<P>The defendants have also hired lobbyists with previous connections to two senators who have been most directly involved in the effort to introduce such legislation: Hillary Rodham Clinton of New York and Edward M. Kennedy of Massachusetts, both Democrats.</P>
<P>At issue is the National Resident Matching Program, known in medical circles as the Match. Every March, a computer determines where new graduates of medical schools will spend the next several years as residents, gaining experience and honing their skills.</P>
<P>More than 80 percent of first-year residency positions are offered exclusively through the program, which is based on rankings submitted both by hospitals, which list the graduates they want, and the 15,000 or so graduates, who list the hospitals they prefer. Both sides agree in advance to accept the pairing. </P>
<P>The suit contends that the Match keeps salaries artificially low — the annual pay for residents is about $40,000 and varies only marginally regardless of region or speciality — and crushes any competition that might force teaching hospitals to offer better conditions like shorter working hours. The industry's defense of that system has long been that a residency is not a job per se but instead a continuation of medical education in which the resident ought to be entirely immersed.</P>
<P>Though no legislation has yet been introduced, one version the defendants are seeking would exempt the Match from private antitrust suits, effectively ending the case.</P>
<P>Dr. Jordan J. Cohen, president of the Association of American Medical Colleges, which helps run the Match, said the effort to get Congressional help was important.</P>
<P>"It's precisely because the suit has no merit that we are going this route," Dr. Cohen said in an interview. Otherwise, he said, the case may not be resolved for two or three years, and "the resources that are going into the defense of this lawsuit are enormous."</P>
<P>A law declaring that the matching system is legal, he said, would dispel "the cloud that has been hanging over the Match." If some hospitals, fearing liability, instead withdraw from the program, the uncoordinated system that existed before the Match was adopted nearly 50 years ago could be resurrected, creating what the industry describes as a kind of chaos.</P>
<P>Dr. Herbert Pardes, president of New York Presbyterian Hospital, said he was surprised and dismayed that some young doctors had sued.</P>
<P>"This system has worked very well for some 50 years," Dr. Pardes said. "It has enabled medical students to get the best possible residency choice."</P>
<P>He added that medical school graduates were most interested in the quality of the program they were matched with and that issues like compensation, although important, were secondary.</P>
<P>But the lead plaintiff, Dr. Paul Jung, now a medical officer with the Food and Drug Administration, says he is convinced that the Match "is the linchpin" that allows hospitals to require residents to work 80 to 100 hours a week for low salaries. </P>
<P>"What the defendants are trying to do is to subvert the whole judicial process by going through the backdoor, using their friends in Congress to find a way out of this lawsuit," Dr. Jung said. "We want our day in court."</P>
<P>Senator Charles E. Schumer, Democrat of New York, who has also been involved in discussions about legislation granting the Match an antitrust exemption, said: "This is not a black-hat-versus-white-hat issue. Medical residents and interns who work hard, and medical schools and teaching hospitals who provide a lot of care for poor people, are both good forces in our society. We need to figure out a way to be fair here."</P>
<P>A spokeswoman for Senator Kennedy said he thought that the Match had been crucial to producing "the best physicians in the world" and that "if the Match is in jeopardy, Congress has to protect it in a way that meets the needs of both teaching hospitals and medical students."</P>
<P>The suit, brought in May 2002, is before Paul L. Friedman, a federal district judge in Washington, who has not ruled on the defendants' motions to dismiss. </P>
<P>Lawyers for the plaintiffs are trying to have the suit made a class action, meaning that it would apply to any person who graduated from medical school in the four years before it was filed, four years being the maximum under the statute of limitations for antitrust violations.</P>
<P>The defendants have hired Jeffrey Blattner and Carolyn Osolinik, two former senior staff lawyers for Mr. Kennedy. They both were counsel on the Senate Judiciary Committee, which handles antitrust legislation, and Mr. Blattner, an antitrust expert, was special counsel to the Justice Department in the government's suit against <ORG value="MSFT" idsrc="NASDAQ"><ALT-CODE value="Microsoft Corporation" idsrc="NASDAQ" />Microsoft</ORG>. </P>
<P>A senior Senate aide said in reference to those people that the medical schools had an advantage in pressing their case because they were "heavily lobbied up." Though it is not uncommon for Congress to be asked for an antitrust exemption, the lawmakers rarely comply.</P>
<P>"At any given time, someone is asking Congress for an exemption," said one antitrust expert, Prof. Robert Pitofsky of the Georgetown University Law Center. "But relatively few are granted, and a lot depends on the political clout of the group seeking the exemption and the merits of the case."</P>
<P>It is even more rare for Congress to intervene once litigation is under way, though it did so in 1995 to protect charities that were being sued for colluding in setting rates on donated annuities.</P>
<P>Sherman Marek, a Chicago lawyer representing the plaintiffs, said he conceived of the suit when he was representing some young doctors in an unrelated matter and learned of their long hours and low pay.</P>
<P>"It's no secret to residents that they were being mistreated," Mr. Marek said. "Sometimes it takes a lawyer to educate people about a legal right."</P></NYT_TEXT><BR>
<CENTER><NYT_COPYRIGHT><A class=footer href="http://www.nytimes.com/ref/membercenter/help/copyright.html">Copyright 2003</A>&nbsp;<A class=footer href="http://www.nytco.com/">The New York Times Company</A> | <A class=footer href="http://www.nytimes.com/">Home</A> | <A class=footer href="http://www.nytimes.com/ref/membercenter/help/privacy.html">Privacy Policy</A> | <A class=footer href="http://query.nytimes.com/search/advanced/">Search</A> | <A class=footer href="http://www.nytimes.com/corrections.html">Corrections</A> | <A class=footer href="http://www.nytimes.com/membercenter/sitehelp.html">Help</A> | <A class=footer href="http://www.nytimes.com/2003/08/18/politics/18RESI.html?th=&amp;pagewanted=print&amp;position=#top">Back to Top</A> </CENTER></DIV><BR><BR><STRONG>Brian Potts <BR>Managing Editor, CAL/AAEM News Service</STRONG> <BR>MS-IV, UC-Irvine<p><hr SIZE=1>
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