Navigating legal hurdles before and after signing an employment contract
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As millennial and older physicians can verify, the path to becoming a physician is long and arduous, filled with years of rigorous education, exams and residency training.
However, in addition to medical education efforts, it is equally important to ensure that your professional journey is backed by well-structured employment or partnership agreements, as well as a comprehensive understanding of your rights and responsibilities. This article sheds light on why physicians should seek advice before signing an employment contract and how ongoing counsel can prove invaluable as their careers progress and new opportunities or challenges arise.
After spending years honing medical and surgical skills, building reputations and securing coveted high-paying jobs, the stakes are tremendously high when it comes to signing an employment or partnership contract. These agreements, after all, set the tone for your entire professional relationship with your employer and can significantly impact not just your career, but also your financial well-being. Here are a few reasons and examples illustrating how pre-employment counsel can be helpful.
Protect your interests
Employment contracts are typically drafted by employers and their attorneys with clauses that are favorable to them — sometimes in a lopsided way that even the recruiting physician management team does not intend. Your counsel can help you identify and negotiate terms that protect your interests.
Example: Imagine you are offered a position at a prestigious orthopedic clinic. With the help of legal counsel, you discover that the non-compete clause in the contract would severely limit your ability to practice in the same region if you ever decided to leave. Your counsel can negotiate more reasonable restrictions, perhaps even defining the site where your restrictions apply, allowing you to explore other opportunities without undue constraints.
Understand contractual obligations
Employment contracts can be complex documents filled with legal jargon. Experts can help you understand your contractual obligations, such as work hours, on-call duties and any post-employment restrictions.
Example: Your contract states that you must be on call every other weekend, but you are uncertain about whether this is a standard requirement in your field or one that is currently in place at the practice with the existing doctors. Counsel can clarify your obligations, and, where possible, negotiate more favorable terms that provide considerably more flexibility and align with industry norms. In this case, your legal counsel can help you negotiate that your call load should be equitable amongst similarly suited physicians.
Scope of outside activities
Once you have signed a contract and are working as a physician, it is often helpful to have personal legal counsel help you clarify outside activities and investments as situations arise. As you navigate new opportunities, it is crucial to understand the boundaries set by your employment contract and the law to avoid conflicts of interest or legal issues.
Counsel can help you navigate the fine line between pursuing outside interests and breaching your employment contract. They can provide guidance on what activities are allowed and which might require special approval.
Example: In your third year of private practice, you are offered a part-time telemedicine opportunity that you feel you can do outside of your normal work hours. You also are considering investing in a medical startup that develops innovative devices. Your partnership agreement is silent on both issues, leaving you uncertain about whether it is permissible. Legal counsel can assess the situation, ensuring you comply with your contract and local regulations.
Pay increases, staff allowances
Legal counsel can be instrumental in ensuring that you are appropriately compensated on an ongoing basis and that you receive all the competitive pay benefits and salary increases specified in your contract, along with staff allowances that directly influence your productivity.
Example: You are in practice for 2 years and performing above the 75th percentile in clinical productivity. Your practice has grown to the point where additional support staff such as a physician assistant is a prerequisite for continued practice development, timely patient communication and a healthy work-life balance for you. However, your employer has not fulfilled this obligation, leading to increased workload and potential burnout. Legal counsel can help enforce the terms of your contract and secure the staff allowances you were promised or those that similarly situated physicians have.
Options for “counsel”
Throughout this article, we have used the terms “counsel” and “legal counsel” to describe professionals who are qualified to provide advice on contracts and employment issues. Specifically, we suggest hiring an experienced health care contracts attorney to review the agreement(s), provide advice and potentially even represent an orthopod in a negotiation.
However, in speaking to nearly 100 physicians on this subject, we learned that most of them did not hire an attorney either before or after they signed a contract. Many were either silent — not negotiating or inquiring on rights — or did it themselves. Others may have “run it by” a more senior physician at their practice or — for fellows — at their fellowship, prior to signing their first agreement. The reasons most physicians gave for not hiring an attorney were the expense, no time during “business hours” to make it happen and they were not sure who to hire.
Another option for contract counsel that does not rise to the level of hiring an experienced attorney but may avoid these three barriers — and is better than either not inquiring at all or attempting to “do it oneself” — is to make use of artificial intelligence (AI). In fact, physicians can now utilize the same powerful AI tools that attorneys are using to analyze and draft documents (see www.spellbook.legal as an example). This is not surprising, as the latest versions of generative AI have literally scraped every contract on the public internet, as well as every contract course, legal case and treatise.
To be forthright, both authors are founders of The Doctors Agents, a startup offering a range of services for physicians to improve their bottom line, which is now in Beta for DocContract AI, an AI-generated physician contract review. We hope it will provide physicians who would forego hiring an attorney a powerful, inexpensive, on-demand option to not only understand what is in their proposed agreement(s), but also where they can suggest new contract language, what that language would be and an approach to negotiate for a better deal.
Physicians are at the forefront of health care, improving the lives of countless individuals with their expertise. However, it is crucial to navigate the complexities of employment contracts and ongoing legal issues. This short article has identified a few of the many important issues that may arise before and after one signs an employment or partnership agreement and outlines potential options for obtaining proper advice. The authors welcome your questions.
References:
Wealth Planning for the Modern Physician and Wealth Management Made Simple are available free in print or by ebook download by texting HEALIO to 844-418-1212 or at www.ojmbookstore.com. Enter code HEALIO at checkout.
For more information:
Sanjeev Bhatia, MD, is an orthopedic sports medicine surgeon practicing at Northwestern Medicine in Warrenville, IL. He can be reached at sanjeevbhatia1@gmail.com or @DrBhatiaOrtho.
David B. Mandell, JD, MBA, is an attorney and founder of the wealth management firm OJM Group www.ojmgroup.com. He can be reached at 877-656-4362 or mandell@ojmgroup.com.
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