The contract looked good. Great, in fact. Compensation, vacation, even health insurance—all good packages—but before the physician signed on the dotted line, he consulted an attorney, Gary Sastow, J.D., with the New York-based law firm Brown, Gruttadaro, Gaujean & Prato.
Good thing he did. There are many benefits to hiring a physician contract attorney.
If the contract had been left as it was, the physician would have been burdened with $160,000 of tail coverage upon leaving the practice. And he would have been responsible for paying all of it.
The biggest problem plaguing physicians when it comes to contracts, according to Sastow, is that they’re concerned primarily with only one part of a contract. “They want to know how much they’ll be paid,” he says. Though compensation is a significant part of any contract, it’s not the only part, and let the physician beware if he or she doesn’t keep the other sections in mind as well.
A rise in physician employment
Let’s face it: These days, most physicians are looking at employment contracts. A recent report from the consulting company Accenture states that only one in three physicians will be in independent practice by the end of 2016. The report also states that the number of physicians in private practice declined from 57 percent in 2000 to 49 percent in 2005, with most of the physicians who left private practice seeking hospital employment instead.
For some time, physicians drove this trend as they sought to escape long hours, risky revenue streams and increasing regulations, but the 2010 health care reform legislation that gave rise to accountable care organizations also gave hospitals and physicians new incentives to work together. That means today’s physician is likely to be an employed physician, and that, in turn, has greatly increased your need to have at least a rudimentary understanding of employment contracts.
Today the average hospital employment contract is between 20 and 30 pages long and has been prepared by the hospital’s attorney, says Sastow. In other words, there’s a lot of confusing legal jargon that could trip you up, and, Sastow adds, the hospital’s attorney will have written the document to the employer’s advantage.
Gregg Bertram, founder of Pacific ADR Consulting, which handles mediation and arbitration disputes for clients, echoes Sastow. “The contract is not a neutral document,” he says. “Don’t assume it’s harmless.”
Evaluating your contract
So when you’re handed an employment contract, how do you proceed?
“Start any contract review by asking yourself first what you want from the contract and from the job. What’s important to you: Is it your schedule? Your track for advancement? Focus on your career goals, the lifestyle you want to create, and then you can better decide what things you want to negotiate,” says Mathew Parker, J.D., of the management-side labor and employment law firm Fisher Phillips.
Hospitalist Vanessa Frost, D.O., says she prepared a top-three list of things she wanted from a job, and that included pro-rating her sign-on bonus over a two-year contract—advice she received from a mentor. “That way, at the end of the second year, you only owe half of the bonus if you decide to leave. You’ve worked off the other half.”
Once you determine your top priorities, your next step is to look over the contract.
“Some people never read the contract they’ve been handed,” says Sastow.
It’s true many hospital contracts are more or less boilerplate documents, especially for new physicians, says Derrick Handwerk, managing partner of Handwerk Multi Family Office, a Philadelphia wealth management consulting company. Still, he says, “it’s a good idea to know what’s in them before you sign on the dotted line.”
Contract anatomy
Most physician employment contracts follow a similar structure, and though you’ll want to pay attention to the whole contract, the following sections are ones that may deserve special scrutiny:
Job Location and Job Description.
“Every contract should have in it a list of your job responsibilities and duties,” says Sastow. And the contract should be as specific as possible—not only in your job description, but also in where you will work and what hours you’ll work.
Sastow says he will put in the specific address of the facility or facilities where his client will work—office locations, hospital locations, clinic locations, whatever might apply. That’s because an employer may close an office location, for example, and want to transfer its staff to a satellite clinic in a nearby town—or, if it’s a multiple-state entity, to a location in a different state entirely.
“There is a lot of consolidation going around,” says Bertram. A move, whether it’s 45 minutes away or several hours away, can have a significant impact on not only the physician’s lifestyle but also his or her wallet. “Be alert to these sections,” says Bertram. “If you are signing with a hospital that has multiple locations, it’s important to nail down the locations where you’re expected to work and ask for notice if they do plan to move you.”
Vaagn Andikyan, M.D., a New York gynecologic oncologist, says he looks for work locations in contracts. “It’s important to look at them before you sign, because you could find yourself spread too thin if the hospital or practice has more than one location and expects you to work at all of them,” he says.
The employer still has the option of making that request or transferring physicians, but if the contract lists specific addresses, such moves are likely to trigger new negotiations regarding call hours or commuting expenses, says Sastow.
Besides job location, Parker also suggests paying close attention to the job description itself. “Responsibilities should reflect those within your field of specialty,” he says. If the contract has a broader statement, such as “tasks as assigned,” that’s worth negotiating, he says. Otherwise, you might find yourself performing tasks that may be above—or beneath—your level of training.
These sections may seem boilerplate, but it’s still a good idea to read them and make sure they reflect what you want from the job.
Compensation.
Most compensation guidelines these days are set by corporate boards and groups like the Medical Group Management Association, says Handwerk. “The larger the hospital or group, the more likely it is the compensation rate will be standard,” he says.
And, frankly, there isn’t much room for a new physician to negotiate larger increases. “Young physicians don’t have much in the way of negotiating power unless they are in a specialty that’s needed by the employer,” says Sastow—or they are needed in a specific location.
If salaries are set in stone, Handwerk suggests negotiating other benefits. An inflation rider, for example, is a way to keep your salary from deflating as you work. “…Without a regular increase for inflation, doctors can find themselves working for less and less money each year,” he says.
Also remember that compensation isn’t just about salary. It covers benefits such as paid time off, CME reimbursement, health and disability insurance, forgivable loans, 401(k) contributions and maternity/paternity leave.
“Typically, these benefits are part of a hospital’s policies and procedures manual,” says Parker. “It’s important to understand what those policies are, so if there is something you need or want, like paternity leave, and it’s not in the manual, you may be able to negotiate it into the contract.”
Negotiations are more likely to take place if the employer is a smaller hospital or group, says Sastow. “For larger hospitals, these are usually standard policy and not negotiable.”But, as Bertram says, you never know until you try.
Bertram says it’s perfectly legitimate to ask questions of your own. “Ask employers about the financial strength of the institution,” he says.“If a hospital or group has shrinking revenues, that’s something you should know before you sign up.”
“Also, ask the hospital about its volume and growth potential,” suggests Paresh Mane, M.D., a Boston thoracic surgeon.
Call Hours.
Next to compensation, call hours may be the most important section for physicians. “On-call hours will affect a physician’s career path and lifestyle,” says Parker. As the new hire in the organization, you can usually expect to work the worst hours, but if they are worse than other new hires, Parker suggests opening a dialogue with employers for a better schedule. “Most employers want to be fair,” he says.
But here again, you might want to ask your own questions, says Mane. For example, “Ask what the hospital will do if you work more than a certain number of hours. What will they do if your cases are above that limit?” He also suggests negotiating administrative time into your schedule so you can carve a day out each week for paperwork. As a surgeon, he has also negotiated block time in the operating room.
In other words, propose the hours you want for the lifestyle you want—but be prepared to negotiate. As long as call hours are kept reasonable and fair, that may be the best you can expect.
Termination and Tails.
Employers typically provide malpractice insurance while you’re working at their facilities, but what happens when you leave and a patient files a malpractice suit over something you allegedly did? That’s covered by tail insurance, and that part can be tricky, as the example at the beginning of this article shows.
“Who pays the tail coverage and how much they pay may be negotiable,” says Sastow. But that negotiation is likely to depend on why you’re leaving.
If the contract is up—usually after a year—and you’re moving on to another workplace or if you’ve been terminated with cause, you can expect to pay a fair share or all of the tail coverage. However, you might want to negotiate language in your contract that makes the employer responsible for paying some or all of the tail if you’re terminated without cause. “Who pays for tail coverage depends on the reason the relationship is ending,” says Sastow. He adds: “If you’re dismissed without cause, you should negotiate language that says the employer will pay for tail coverage.”
That’s why it’s also important to pay attention to the termination section of contracts.
“The length of a contract can be misleading,” says Bertram. “Generally, contracts are for a one-year renewable term, but it’s not an absolute. You may be terminated without cause with a 30-, 60- or 90-day notice.”
“All contracts have an out clause,” says Cindy Fiorito, director of physician recruitment for Eagle Hospital Physicians in Atlanta. “Our contracts include without-cause language with a 120-day notice,” she says, adding that they will consider other notice lengths.
Generally, termination-without-cause sections are not negotiable, though most attorneys will try to eliminate the language. If left in place, they are what they are, and you need to be aware that they’re there.
Mane says he was able to negotiate the without-cause, 90-day notice termination clause in his contract to a longer term. “If you’ve moved to the area and just started practicing, three months is not enough time to let you find another job and move again,” he says. His negotiated language called for a 180-day notice period. Six months is long enough to find a new job, he says, adding, “It works both ways. If you don’t care for the environment, you don’t want to lock yourself into place either.”
In addition to negotiating a longer notice, you may also negotiate language that says the employer will pay you a certain amount if you’re dismissed without cause. “Or you may want to negotiate the restrictive covenants part of the contract if you plan to stay in the area,” says Jay Levy, J.D., a Florida attorney.
Just be sure, in any termination-with-cause section, that the cause is defined in the contract, says Levy. “There should be a clear understanding of what constitutes cause.” There should also be a “notice of default” in the contract, he continues. That means the employer will allow you a certain length of time to fix the problem. “That could range from 10 days to 30 days,” Levy says. Unless the offense is so egregious that no repair is possible, a notice of default will give you a chance to fix whatever problem you have or may be creating.
Restrictive Covenants.
Of all the terms in a contract, this one may be the most contentious. A non-competition restrictive covenant says that, if you leave a practice (with or without cause), you may not work within a given distance from that hospital or place of employment for a set period of time. A non-solicitation restrictive covenant prevents you from soliciting your former patients for a set period of time.
Restrictive covenants should be taken seriously, says Levy. “Some people think they’re not enforceable. They are.”
If you can look at them from the employer’s side, they make sense, Levy continues. “The employer has gone to the trouble of bringing you in, marketing its practice and building its patient base. They don’t want to lose those patients if you leave. A restrictive covenant protects their business.”
But what if the patient has a good relationship with the doctor and wants it to continue? “A non-competition restrictive covenant doesn’t mean that the patient can’t see you,” says Levy. Of course, it may make their visit geographically inconvenient, but that’s their choice.
“I was ready to sign with an employer until I saw the restrictive covenant clause,” says Andikyan. The employer refused to eliminate the clause, “so I walked out. I wouldn’t sign a contract with a restrictive covenant clause included,” he says.
“If they’re in a contract,” says Mane, “you need to know what the language says. Any hospital facility, including an office that’s 150 miles away, may be included in the restrictive covenant language.” That, he adds, can be crippling if you intend to stay in the area.
Fiorito points out, however, that restrictive covenants may be just as limiting for employers. “If you’re a hospitalist who came to us from another job and you’re working under a restrictive covenant, it can send up a red flag,” she says. “We need to know all of the places you aren’t able to practice, because we may unknowingly assign you to facilities where you won’t be able to go.”
“I learned noncompete clauses are common in contracts where the employer is in a large urban area,” says Frost. In her experience, they are not negotiable, but she says she was able to add language to a contract that allowed her to come back to the restrictive area if she changed her position or if she wanted to return for a fellowship. “I didn’t want to be penalized for either of those,” she says.
Review and negotiation time frame
Once you have your contract, the employer will give you time to consider the offer. In some cases, the amount of time is set in the contract. Frost’s contract, for example, stated she had 14 days to respond to the offer.
That should give you time to consult an attorney with a strong understanding of health care law. If you do choose to use an attorney, most will understand you need a prompt review. “Unless they’re in court or very busy, I would imagine most attorneys will turn around a review in a few days,” says Levy.
Sastow says a week to 10 days is average, and Parker says the review process may take up to two weeks, depending on the size and complexity of the contract.
No matter what the time frame is, however, consulting an attorney may prove to be a wise investment. (See the sidebar “Why Hire an Attorney?”)
Whether you decide to use an attorney or not, physicians should keep one thing in mind, says Parker.
“The contract is the beginning of a relationship, one which has the potential to be long-term and worth millions of dollars,” he says. “It’s easier to dialogue about the parts that are important to you, so decide on those first. When it comes to any negotiations, however, it’s good to take a step back and consider it from the other side. A contract should be beneficial to both sides. You want to build a relationship that goes beyond the document. Keep that in mind when you negotiate, and it will pay dividends down the road.”
Karen Edwards is a frequent contributor to PracticeLink Magazine.
September 1, 2012
Jon Appino
