On March 20th, as the chaos of the unfolding pandemic enveloped New York City, Governor Cuomo issued Executive Order 202.10, which, among other directives, suspended work hour restrictions for residents in New York. These regulations, which had been enacted 30 years prior, were the consequence of the journalist Sidney Zion’s well-publicized crusade to investigate the death of his daughter Libby at New York Hospital in 1984, which he attributed to the mistakes of overworked and under-supervised residents.
A grand jury was convened. While it did not indict the physicians involved in Libby’s care, as Zion had hoped, it did in effect issue an indictment of graduate medical training in the U.S. Depending on who you asked, it was either an educational system intentionally designed around long hours and self-sacrifice or exploitation of cheap labor at the hands of hospitals.
The grand jury’s recommendations, along with the subsequent Bell Committee report, paved the way for duty hour regulations as we know them today. Revisiting the literature from that time, it is clear that a campaign for reform that was sparked by concerns over patient safety was in equal measure driven by concern for resident wellbeing. In the ensuing decades, we would begin to recognize that these concerns were interconnected.
However, this movement for reform didn’t start with the Libby Zion case or end with the institution of duty hour limits. In 1975, the house staff of Cook County Hospital in Chicago went on strike for 18 days after months of dead-end negotiations. They successfully earned a (modest) pay increase and a reduction in their workweek from 100 to 80 hours.
This was not the first organizing activity by residents, but it garnered the most publicity, and it fueled a debate that continues to this day: are residents students or employees? In 1976, in the wake of the strike in Chicago, the National Labor Relations Board ruled that residents were students, denying them the protections provided under labor relations laws, including the right to unionize. In their interpretation, residents’ primary purpose was to gain further training and skills, as evidenced by the many conferences and rounds in which they partake. Their direct patient care is simply a means of learning, and their pay is nothing more than a living stipend.
It took 23 years for this ruling to be overturned, in a similar case involving house staff at Boston Medical Center. While not much had changed in the merits of the competing arguments — residents were still labeled with an intermediate status of “student-employees” — the environment clearly had … perhaps aided by the optics of two residents being tried for malpractice on a very public stage in the Zion case. Despite this decision, approximately 15% of house staff nationwide are currently represented by the Committee of Interns and Residents – the country’s primary house staff union – and the student versus employee argument continues to be litigated.
COVID-19 came along and laid bare what had long been obvious: Residents may be learners, but they are first and foremost employees, and essential ones at that.
As the pandemic’s tidal wave engulfed many teaching hospitals, most formal educational activities necessarily ground to a halt, and fears of a depleted workforce compelled the suspension of various regulations that protect residents from being overworked. New York State lifted work hour restrictions. The ACGME, to their credit, insisted on preserving work hour limits, but suspended most other restrictions, including limits on the number of patients a single resident can manage.
In the wartime language that became popular at the height of the pandemic, hospitals formed “deployments.” The backbone of the “front line” was undoubtedly the residents, working alongside their nurse practitioner and physician assistant colleagues. The difference was that their fellow soldiers had preexisting collective bargaining agreements, with arrangements for overtime pay and channels to negotiate hazard benefits, while most residents were left to pray for the goodwill of their employers, with varying results.
The pandemic has highlighted not only the right of residents to organize, but also the necessity. As employees, residents are the very definition of vulnerable. During the recruitment process, they are deprived of any negotiating power by the Match, which precludes fielding multiple offers and the leverage this affords. And, at the end of the day, they need the hospital more than the hospital needs them. Whereas other employees dissatisfied with working conditions or benefits have the freedom to seek employment elsewhere, residents need to complete their program to receive certification. The process of finding a new position can range from onerous to impossible. When a crisis hits, as we just learned, working conditions can change dramatically overnight, with no obligation on the part of hospitals to adjust benefits or pay.
While the previous addresses the most straightforward function of unions — providing a seat at the negotiating table – historically, this has not been their only role. During the aforementioned 1975 strike in Chicago, residents advocated for their patients and for their patients. They successfully negotiated patient protections, including readily available Spanish interpreters. In the ensuing years, the need for translation services has been recognized as so fundamental as to have been written into law in patients’ bills of rights.
As a disenfranchised voice, residents have long been a voice for the disenfranchised. For a number of reasons, they have generally seen the injustice and inequity in our health care system earlier and more clearly. For one, they are not beholden to the financial structures that are often the driver of these disparities. They are also on the ground, directly interfacing with patients of all backgrounds and in multiple contexts, witnessing the kind of stratified care that has long been the norm in our health care system – one clinic for the privately insured, another for those on Medicaid, and a third for the uninsured. They are the only part of the workforce that might split their time between private and public hospitals. This unique perspective helps them put the lie to the notion of separate but equal care.
There are many reasons hospitals have historically resisted unionization. It is far more convenient to present the terms of a contract than to negotiate them. There may be some discussion, but there is no need for lawyers or endless bargaining sessions. As short term employees, residents are likely viewed as interlopers at the policy-making table, not necessarily having the long term interests of the institution at heart. There are fears, of course, of work stoppages, though these are rare and as anathema to residents as they are to administrators.
At this turbulent moment, however, as we grapple with the dual crises of an ongoing pandemic and the infrastructural racism that pervades every layer of our society, including the health care system, there has never been a more important time to empower the voice of the resident. They are needed to help navigate a path toward greater justice — for themselves and for their patients. The only way to legitimize that voice, to give it a strength that cannot be ignored, is through collective action. The environment is primed for it; the moment demands it.
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