Match antitrust suit awaits action as Match Day arrives

Legal experts see merit in the anti-competitive case against the National Resident Matching Program.

By Myrle Croasdale, amednews staff. March 17, 2003.

Patrick Birmingham is anxious to make his Match, just like every other medical student in his class.

"I'm trying not to think about it," he said of this year's March 20th Match Day. "My list is submitted. I have no control over it now."

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Birmingham, a student at Loyola Stritch School of Medicine in Maywood, Ill., and vice speaker of the AMA Medical Student Section, has interviewed with 14 orthopedic surgery programs. He's weighed each program's merits and ranked all 14 on his list. He's heard that one out of seven applicants in this specialty doesn't match, and he doesn't want to be among them.

All these preparations, all his undergraduate and medical education now hinge on one day.

In the midst of this anxiety and excitement, Birmingham hasn't had much time to think about the lawsuit filed against the National Resident Matching Program last year, but he does have an opinion about it.

Residents typically make $37,000 to $42,000 a year.

"For me, the lawsuit doesn't taint the Match at all, but it disturbs me that it could change things for students in the future," he said.

The lawsuit claims that the NRMP violates federal antitrust laws. If the plaintiffs prove their case, it's possible the Match process could revert to the time when job offers came with short decision deadlines and students had to choose between taking their first offer or risking it to wait for a better one.

A settlement is also likely to bring changes to the Match and could give residents the ability to negotiate salary and work hours. Anything short of a ruling for the NRMP means that this year's Match participants could be among the last to have experienced the process in its current form.

Competition an issue

In late February, attorneys for the NRMP argued that the case should be dismissed and moved to arbitration.

Should the judge deny the NRMP's request, a jury could decide whether the way the Match brings hospitals and students together to improve the chances of each getting their top choices outweighs the restraint in competition created when residents aren't allowed to negotiate their salaries or working conditions.

Public pressure convinced the Accreditation Council for Graduate Medical Education to make an 80-hour workweek mandatory, but some medical residents say salary reform must also be addressed.

The AAMC estimates average medical school debt at $103,855.

Residents typically make $37,000 to $42,000 a year, and the Assn. of American Medical Colleges estimates their average educational debt at $103,855.

Sanders Chae, MD, at Columbia University College of Physicians and Surgeons, noted this perspective in the Jan 23, 2002, issue of The New England Journal of Medicine.

Dr. Chae said the lawsuit was emblematic of residents' frustration with graduate medical education and the feeling that academic medical centers have too much control over their lives. "The Match really limits the ability of medical education to reform itself and make progressive changes," he said. "It institutionalizes an asymmetry of power."

The lawsuit was filed in U.S. District Court in Washington in May 2002. The plaintiffs are three physicians who seek to represent an estimated 200,000 medical residents. The case names NRMP, six affiliated associations and 29 academic medical centers as defendants.

Michael Freed, lead attorney for the plaintiffs, said that under the NRMP system, teaching institutions exchange information about salaries and work hours, letting them set wages artificially low. He said the system made it impossible for residents to negotiate salaries or work conditions.

Attorneys for the NRMP were not available for comment.

The 2002 Match had 31,083 applicants for 22,916 positions.

Frances Miller, co-author of "The National Resident Matching Program and Antitrust Law" in the Jan. 22/29 Journal of the American Medical Association and a professor at Boston University School of Law, said the case has merit, and a decision could go either way.

"The purpose of antitrust law is to take away barriers to competition," she said. "The Match imposes a barrier to hospitals competing for residents. If on balance it's more anti-competitive than pro-competitive, that's when a court will strike it down."

Goal may not be to dismantle Match

Miller said the case was likely more about reforming the Match than dismantling it.

"What people really want is to change the process a little, make it not so Draconian," Miller said. "No one wants to stop the whole business and lose the efficiencies it creates.

"You don't want to go back to the horse and buggy, but what's wrong with negotiating conditions with hospitals instead of forcing a take-it-or-leave-it position? I don't think the Match will be abolished, but can they do it in a way that is less anti-competitive? Yes."

Joshua Cohen, chair of the AMA Medical Student Section and a student at New York University School of Medicine, said many students he knows are against the lawsuit.

"We know from speaking to older physicians how bad things were in the days before the Match," he said. "There's no indication that if the Match were to go away that salaries would go up. If it's a top program, you may be willing to accept no salary for the educational experience."

In 2002, NRMP enrolled 3,998 programs, offering a total of 22,916 positions to a pool of 31,083 applicants.