Striking a Balance between Physician Collective Bargaining Rights and Patient Protections

Since February 2024, over 12,000 (80%) South Korean medical residents have been striking and protesting new government policy to increase medical school admissions, which the residents argue do not tackle their concerns about pay and working conditions. They were eventually joined by attending physicians and medical students, representing one of the largest and longest medical strikes in the nation and leading to large numbers of delayed surgeries, procedures, and hospital admissions. South Korea is not alone. In 2024, medical residents in the United Kingdom (UK) went on strike for six days over poor compensation, the largest in the history of the British National Health Service. In 2023, primary care physicians in France started a strike to demand higher fees for general medical consultations, leading to a 30 percent reduction in primary care services for the year. In the United States (US), emergency room physicians in Detroit, MI, went on strike over long wait times and intentionally low staffing in April 2024; in September 2024, 830 University of Buffalo residents and fellows began a four-day strike to demand better compensation and working conditions, the same reason for a similar strike by over 150 residents in a Mount Sinai-affiliated New York hospital in May 2023.

Amid recent medical trainee and physician strikes globally, we summarize physician labor organization in the US before discussing international evidence about the impacts of physician strikes on patient care and outcomes. We highlight international lessons that American policymakers should incorporate to better balance physician collective bargaining rights and patient protections. It is worth noting that South Korea and the US have the fewest physicians per 1,000 population among OECD countries. Thus, collective bargaining and strikes in these countries have the potential to be more impactful given a relative scarcity of physicians.

Physician Labor Organization in the US

The coverage of hospitals by the US labor law has a complex history. The National Labor Relations Act of 1935 (NLRA) originally covered all non-government hospitals, and was later amended by the Taft-Harley Act in 1947 to exclude non-profit hospitals. The 1974 Health Care Amendments to the National Labor Relations Act restored labor law coverage to non-profit hospitals. It also enshrined the right to strike for some US healthcare workers but required unions to post a 10-day notice prior to strike at any healthcare institutions.¹ Subsequently, the National Labor Relations Board (NLRB) determined that medical residents may form unions, while attending physicians are excluded if they are independent contractors rather than employees, are in private practice, are tenure-track/tenured, or supervise other employees (the NLRB has determined that physician supervision of nurses does not qualify for this purpose).^1,2

Anti-trust law has also applied to physician organization since the Federal Trade Commission pursued an enforcement against the American Medical Association in 1979, on the theories that each independent physician is in competition with each other and that labor organization might result in anti-competitive behavior. There is also heterogeneity in state labor laws, which do not necessarily always follow NLRB precedent. Some state labor law may be the source of protections for employees seeking collective bargaining or engaging in strikes, but that is not consistent across the US.

It is historically rare for physicians in the US to carry out strikes, especially compared to nurse strikes. The landscape of medical strikes may change considerably in the coming years, however, due to recent increases in physician job dissatisfaction and the rise of medical trainee unions. Physician burnout and increased financialization of the US healthcare sector over the past two decades have increasingly led to frustrations amid work condition deterioration and increased prioritization of cost and profit over clinical service delivery.^1,4

Medical trainee unionization and subsequent collective bargaining authority offer trainees a legal pathway to counterbalance the distorted prioritization and advocate for improved working conditions and compensation. In turn, unionization also provides another avenue to exercise power during contract negotiation: industrial action or strike. Possible drawbacks of unionization including potentially increasing costs, loss of individual physician autonomy, and creation of inequities between employed and independent physicians. Alternatives to physician unions including medical staff committees also allow employed physicians to have a collective voice in the absence of unionization.

Currently, over 60 American medical trainee programs are unionized.³ With two strikes among unionized medical trainees in the last two years and a growing interest among other physicians in unionization, the potential for industrial action in the US healthcare sector will only grow. As such, it is important to update US laws and regulations to better reflect the realities of modern healthcare and to incorporate best practices from other countries.

Lessons from Previous Strikes and Labor Regulations in Other Countries

While physician strikes raise serious ethical concerns, regarding potentially negative impacts on patient care and outcomes especially in physician shortage areas, there is surprisingly little literature on such impacts. A systematic review and meta-analysis of 17 studies from 10 countries found no significant difference in hospital mortality between strike and non-strike periods.⁴ Another scoping review found a decrease in elective surgeries and an increase in outpatient appointment cancellations during strikes.⁵ Despite the scant evidence available in the literature, the concerns about physician strikes remain high.

To address the concerns, policymakers in many countries have taken actions to protect patients in the event of physician strikes. Although their healthcare systems differ from that in the US, their experiences still offer useful lessons for the US. For example, multiple countries have implemented minimum staffing requirements during healthcare strikes to alleviate adverse health implications for the public. France, Italy, Ireland, and Spain have each implemented a minimum service level, and the UK has recently considered a similar policy. In this design, both employees and employers agree on a minimum hospital staffing level to ensure continued operational integrity prior to strike actions to mitigate patient care disruptions. This is consistent with the policies of the International Labor Organization (ILO), a United Nations agency that helps set labor standards. Specifically, the ILO supports the use of minimum service levels when strikes could interrupt services that “endanger life, personal safety or health […] of the population.”

The US can learn from these countries to develop its policies regarding physician strikes. Currently, the statutory ten-day notice of a strike against a healthcare institution is supposed to allow for a ‘cooling-off’ period and give the institution time to make alternate arrangements to protect patient care. However, adding a legally required essential level of service would further protect patients, address some physicians’ concerns that strikes go against their ethical duty to provide care, and even protect against any state medical boards alleging patient abandonment.

Proactive steps should also be taken to prevent punitive actions against attending physicians or medical trainees on strike. South Korean law permits medical license suspension, fines, or prison time if physicians refuse their government return to work orders. In 2024, the South Korean government started to suspend the licenses of striking medical trainees but backed down after public outcry. Such a punitive action can detrimentally affect employee-employer relations, undermine public confidence in the medical system, and compromise physician work conditions, worsening ongoing physician burnout and job dissatisfaction. In their 1996 Labor Code, the ILO emphasizes that strike workers “should not be dismissed for engaging in strike action,” and that a legal strike does not terminate an existing contract but rather a suspension until negotiation proceeds.

While it is true that Section 8(a)(3) of the NLRA makes it an unfair labor practice for employers to discriminate against employees because of their union activities or sympathies, trainees are more vulnerable because they are in the process of obtaining their licensure and Board certifications. State medical boards could ensure that criminal charges associated with union activities do not affect decisions around medical licensure. Similarly, professional societies, who are not bound by the anti-discrimination requirements of the NLRA because they are not employers, can explicitly guarantee that union-related activities do not jeopardize board eligibility or certification. The American Medical Association, which supports a physician’s right to unionize but not to strike, should offer updated and more specific guidance to trainees about the benefits and risks of striking.²

Finally, Congress and the NLRB should revisit the unionization eligibility of medical school faculty and supervising physicians. In an era of increased corporatization and hospital consolidation, attending physicians have less independent control over their schedules and practice.¹ At large healthcare systems where administrators may drive corporate decision-making, unions can be an important counterbalance to protect employee interests. Labor policies governing healthcare should be updated to better reflect current trends in the field. This would also better align with policies in Spain, France, and the UK that allow supervising physicians to strike.

As physician strikes become increasingly common worldwide, the US should draw on international experiences and lessons to balance physician labor rights with patient safety. By updating labor laws and strike regulations, policymakers can better serve physicians, patients, and hospitals in times of unrest.