Nurses at Law

July 4, 2006 -- Recent articles have described ambitious efforts by U.S. nurses to improve working conditions and patient care by filing lawsuits. On June 20, Reuters reported that nurses backed by the Service Employees International Union (SEIU) had filed antitrust suits in four U.S. cities alleging that about 20 hospital systems had unlawfully "conspired to depress wages for nurses amid a national shortage." Kim Dixon's fairly short piece, "US hospitals sued in class action over nurse pay," lays out different perspectives on the suit. It cites experts who contend that resolving the shortage will require more than higher pay. But it fails to quote a single nurse, opting for expert comment from a physician. An article posted today on the Women's eNews site, Allison Stevens's "Nurses Claim Hospitals Conspire to Keep Pay Low," examines the four suits at greater length. Stevens' piece includes more detail about the litigation, which may expand to other cities, and it focuses more closely on the extent to which the claims stem from gender discrimination. And a short June 16 piece in the Business Review (Albany), "Federal standards for Medicare funding sparks lawsuit," reports that the American Nurses Association and two state affiliates have filed suit against the U.S. Department of Health and Human Services. That suit alleges that HHS has illegally delegated its authority to accredit hospitals for participation in Medicare to the private Joint Commission on Accreditation of Healthcare Organizations (JCAHO), resulting in inadequate nurse staffing levels. These stories raise the larger issue of whether the legal system can be an effective vehicle to pursue broad, systemic improvements in nursing practice environments. Whatever the answer to that question--and whatever the merits of these specific suits--it seems to us that this is patient advocacy.

The June 20 Reuters piece reports that the four SEIU suits seek back pay and legal costs totaling "hundreds of millions of dollars." The defendants are major hospital systems including HCA Inc., which runs 180 hospitals, and the Catholic system Ascension Health. The suits, which seek class action status, were filed in Chicago, Memphis, Albany, and San Antonio. They claim that the hospitals regularly discussed nurses' wages in an effort to "coordinate and suppress pay." The piece quotes plaintiffs' attorney Daniel Small as saying that the hospitals' human resources personnel exchanged detailed nurse wage information. The suits are reportedly based on interviews with "dozens of current and former hospital employees in each market, including some at the executive level." HCA spokesperson Jeff Prescott describes the actions as "four frivolous money-wasting lawsuits apparently generated by a union and a law firm designed to create publicity in markets where unions are trying to get membership." The article does not pursue the basis for that claim.

The piece does note that the American Hospital Association says the shortfall for full-time RNs is nearly 170,000 this year in the U.S. The piece says experts disagree on how to resolve the shortage. Some say higher wages are critical, since wage increases for nurses have been "insignificant" during the decade-long shortage, but others point to short-staffing and "lack of respect." The piece quotes Massachusetts General Hospital physician Sreekanth Chaguturu, who "recently wrote an article" on the shortage for the New England Journal of Medicine. He suggests that "market forces" have failed to correct the shortage because of factors including inadequate nursing school resources and (in the piece's words) a "perception that nurses have inadequate input into health care decision-making." Presumably this means that nurses are continuing to leave because they feel this way. We would suggest that it's more than just a "perception," and that the short-staffing that results from the "inadequate input" may be a more immediate cause of the exodus from the bedside. We also note that the piece quotes no nurse on the subject, and indeed, quotes no nurse at all, even though we're guessing that you could find a few who have written "an article" (or 10 or 20) on the shortage. This may get us back to the "lack of respect" factor.

The July 4 Women's eNews article provides much of the same basic information about the four lawsuits, but provides additional background and analysis. It focuses on Lisa Reed, an Illinois nurse who is one of the plaintiffs. She suggests that hospitals are expanding, buying new equipment and redecorating, "but there's no money for nurses." Reed makes $27 per hour, and she says her most recent raise was 27 cents an hour, four years ago. The piece also includes an interesting quote from Cathy Singer-Glasson, president of the Nurse Alliance, an SEIU subsidiary. Singer-Glasson expresses dismay that, according to the lawsuits, hospitals have been suppressing nurse wages at a time when she has "seen so many nurses leave the profession they love because of working conditions that make it harder to give our patients the care they deserve." This, of course, suggests that working conditions are at least as big a factor as pay in the bedside crisis. The piece quotes hospital spokespersons who vigorously dispute the allegations, though we see no specific denial that the hospitals had the exchanges of wage information that the plaintiffs allege, or that those exchanges resulted in lower wages. Small alleges average nurse underpayments ranging from $1,300 per year in San Antonio to $14,000 per year in Memphis.

The piece also explores a few related issues. It notes that the alleged loss of income has a disproportionate effect on women, since more than 90% of nurses are women. And it quotes National Women's Law Center co-president Marcia D. Greenberger, who argues that nurses have traditionally been "disadvantaged in pay" for that reason. Greenberger cites a March 2006 study by the Institute for Women's Policy Research finding that median pay for pharmacists, "a field that requires similar training and education levels" but is only 48% female, is 40% higher than the pay for nurses. The underlying gender point is sound, but we don't get the pharmacist comparison, since we believe U.S. pharmacists need at least six years of college education, compared to the roughly three years of full-time college study it generally takes to get an associate's degree in nursing. The piece also notes that this study found that the roughly 20% of U.S. nurses who belong to unions earn 13% more than non-union nurses. The piece does not specifically explain what role union membership has played in the specific wage situations addressed in the lawsuits; perhaps it is suggesting that unions better enable nurses to resist things like the alleged wage collusion. The piece does not really address causes of the shortage, other than to note that the study argued that higher wages could help stop it. But the article does include a strong concise summary of the effects of the shortage, apparently based on the study:

Shortages undermine patient care. ... Inadequate staffing levels lead to nurse burnout and stress, increasing the rate of medical errors and reducing the quality of patient care. As a result, more negative outcomes, including death, occur.

And there you have it.

The unsigned June 16 Business Review piece reports that the ANA and the New York and Washington State Nursing Associations have filed suit against HHS. They seek to prevent the agency from allowing JCAHO to use what the piece describes as "its own, minimal standards for nurse staffing in its accreditation of hospitals" for Medicare participation. The suit alleges that HHS has wrongly delegated its own authority by letting JCAHO use program standards that are inferior to HHS's own standards. The piece says that the suit claims JCAHO standards fall short on HHS requirements that a registered nurse be available at the bedside for any patient, and that staffing schedules be maintained to ensure they are meeting patient needs. The article quotes NYSNA president Verlia Brown as saying that it is "dangerous" that nurse staffing shortages are growing with the increasing number of Medicare patients. The piece also notes that JCAHO accredits about 82% of the nation's hospitals, but a 2004 U.S. Government Accounting Office report concluded that JCAHO "had 'unacceptable performance' in identifying hospitals that did not comply with Medicare requirements."

We thank these publications for their coverage of nurses' efforts to help their patients and themselves.