The who, what, where, why and when of contracts

Before signing on to a new practice, ask these important questions.

By Bruce D. Armon | Legal Matters | Winter 2011

 

Before signing on to a new practice, ask these important questions.

There are five primary “W” questions that every physician should ask and understand before signing their employment contract.

1. Who is the employer?

It is critical to learn as much as you can about your prospective employer. If the employer is a private practice, what turnover (if any) has the employer had in its leadership? If the employer is a hospital, what is the relationship that it has with its employed physicians? Does the employer share your short- and long-term objectives? Does the employer have a good reputation in the medical community and the community at large? From a corporate standpoint, does the employer have affiliate entities? Will you ever have the opportunity to have an equity piece in any of the affiliates?

2. What does the employer expect?

After a few in-person meetings and e-mails, you may not have a good sense of the employer’s professional expectations. A properly drafted employment contract should delineate your and the employer’s rights and responsibilities. Don’t be surprised on your first day of work by the staff or equipment (or lack thereof) in the office. Understand the path to promotion. What are the benchmarks related to each step in advancement? Get as many as you can described in detail in the contract. The disappointment of not fulfilling expectations will be compounded by not knowing, in advance, what you were supposed to do.

3. Where will you be working?

Many employers have multiple practice locations. Depending upon the community where you live, you may have to travel great distances—even across state lines—to get from one office to the other.

There can be advantages and disadvantages to working in the main office versus a satellite office. The feel of the practice may be very different in one practice location versus another. This can be dictated by the physician(s) who regularly work in a practice location, the staff who are primarily based at a practice location, and even the patient population that frequents a particular location.

Will you be visiting more than one office in a single day? You should be particularly aware of this circumstance if your compensation is based upon productivity.

Because you will have down time while you are commuting from one office to the next, this will negatively impact your productivity compensation even though you are still making a meaningful contribution.

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Shedding light on your moonlighting contract

Before you accept any moonlighting opportunity, make sure you take into account these contract considerations.

By By Bruce D. Armon | Fall 2010 | Legal Matters

 

The economy is still uncertain, and physicians are not immune to these challenging times. You might be tempted to create your own stimulus package by moonlighting.

Moonlighting usually refers to a resident or fellow taking a second, part-time, clinical job. In most cases, the reason for taking the second job is solely economic: to earn more money to supplement your salary.

The moonlighting contract protects you and the party for

whom you are working.

Moonlighting is, however, no longer the exclusive domain of residents and fellows. In an era of decreasing reimbursements from third-party payers, physicians with varying years of professional experiences and specialties are attracted to the opportunity to earn extra dollars by engaging in extracurricular clinical engagements.

Whether you are a resident, fellow, junior attending or seasoned physician, there are important legal considerations you must address before executing a contract to be a moonlighter. And yes, you should execute a contract. Do not rely upon a handshake or an exchange of e-mails. The moonlighting contract protects you and the party for whom you are working. It also helps prevent amnesia when there is a disagreement or misunderstanding between you and your second employer regarding your respective rights and responsibilities.

Are you allowed to moonlight?

This is the threshold issue that must be addressed before you do any clinical (and, depending on your contract, non-clinical) activities for any other party besides your primary employer.

Imagine language in your contract with your primary employer that states: “During the term of physician’s relationship with employer, physician shall not engage in any activity that is competitive with employer unless physician receives the advance written permission of employer, and such approval may be revoked at any time.”

There are several questions that must be addressed:

  • What is a “competitive” activity? Is it clinical? Is it nonclinical, such as being an expert witness or dealing with intellectual property?
  • Is it tied to the radius of the contract’s restrictive covenant provision?
  • Is it tied to the hospital(s) or other ambulatory facilities where your employer’s physicians have privileges?
  • Is it limited to a particular specialty or a particular set of procedures, such as cosmetic, or cash pay versus third-party payer reimbursements?

Before you can safely take advantage of any moonlighting opportunity, you must get these issues addressed. To be sure you are not going to violate your primary employer’s contract, you should get these answers in writing, and have the same signed by you and your employer.

What is your limit?

There are some people, including physicians, who require very little sleep to function at an optimal level. However, your contract with your primary employer may not address your minimal sleep habits and needs and may simply state: “Physician shall devote his/her full time and attention to employer.”

What constitutes full time? Part of the answer may be dictated by your “normal” working hours. It may be unacceptable to work from 7 p.m. to midnight after working for your primary employer earlier in the day or having regular hours the following day. Is it OK to work a weekend shift for another employer when you have no regular office hours that day or on-call responsibilities?

 

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Consent to Settle: Who Decides?

The consent to settle provision of a professional liability insurance policy can affect more than just a suit's outcome.

By Bruce Armon and Jennifer L. Beidel | Legal Matters | Spring 2010

 

NEITHER A PHYSICIAN NOR ANY PROFESSIONAL likes to be accused of wrongdoing or sued for negligence. Litigation is time consuming and can be filled with anxiety regardless of whether the dispute ends in a verdict or settles during the litigation process.

According to Americans for Insurance Reform, a national coalition of public interest organizations that supports insurance industry reforms, approximately 85,000 medical malpractice lawsuits are
filed annually. A physician who is sued and has professional liability insurance — most states require a physician to have this coverage—will generally have counsel appointed by his insurance carrier. A 2007 report published by the U.S. Department of Justice’s Bureau of Justice Statistics says that between the years of 2000 and 2004—the most recent period for which information is publicly available—approximately 95 percent of all medical malpractice claims settled prior to trial. more »

 

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National Practitioner Data Bank—and
Your Career

Knowing what information the data bank contains - and correcting any errors - could be critical to credentialing for new jobs or applications to professional organizations.

By Bruce Armon and Justin Ettelson | Legal Matters | Winter 2010

 

Are you applying for employment or affiliation with a health care entity? Do you have an application pending before a state licensing board? Do you have clinical privileges at a hospital? If the answer is yes to any of these questions, then you should be aware of the importance the National Practitioner Data Bank maintained by the Department of Health and Human Services (HHS) can have on you and your career. more »

 

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Protection From Wrongful Termination Action

Downsizing is a reality - even for physician employees. Discover how the right termination strategy can save your medical practice aggravation in the long run.

By Bruce Armon | Fall 2009 | Legal Matters

 

Donald Trump turned two words You’re fired! into a cultural sensation. With the economy still in trouble, “You’re fired” has become an all too common reality for professionals throughout the country as employers downsize (or “rightsize”) staff. Medical practices, like any other type of employer, face economic challenges, and unfortunately doctors are not immune to job loss. As a business, physician owners must act appropriately when looking to terminate a physician employee. more »

 

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Who is Dr. Wiki and Why You Need to Know

Managing the risks of online medical communities. How to safely enjoy your time online.

By Bruce Armon & Jim Keller | Legal Matters | Summer 2009

 

American society is more wired than ever. “Texting,” emailing, and “tweeting” have all but replaced calling and writing. Online social networking communities like Facebook.com™ and MySpace.com™ are quickly growing in popularity. It is not just teenagers and college students who are partaking. Professionals, including physicians, are joining and participating in online networks. Several networks have been created for use exclusively for physicians including Sermo.com™ and Medpedia.com™. Other networks are designed to be forums to exchange information between physicians and patients. While patients can benefit from their physicians’ ability to connect and consult with thousands of other physicians in the United States and around the world regarding treatment advice or similar case studies, these online communities can expose physicians to a host of risks and potential liabilities. more »

 

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The Necessity of “Asset-Protected” Investments

In these uncertain times, be careful not to leave your assets vulnerable to malpractice judgments.

By Jason O'Dell, Stan Miller, JD, and David B. Mandell, JD, MBA | Legal Matters | March/April 2009 | Uncategorized

 

We have been helping the medical community shield assets from potential lawsuits for years. While we often establish sophisticated trusts, limited partnerships, captive insurance companies, and even offshore arrangements to protect our clients’ assets and help them save taxes, often we need not be that creative.

In many states, the law gives us tremendous opportunities to protect wealth and lessen income taxes—through life insurance vehicles and annuities. If shielding your net worth from a potential lawsuit is important to you—and if you would like to pay less in income taxes—you must consider these tools as part of your financial plan. The question then becomes: if you have a choice between two fairly equal investments, why not use the one that is asset-protected and enjoys special tax treatment under the law? The wise choice is to make use of the asset-protected, tax-deferred investment. Let’s see how that works. more »

 

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Get Your Own Bailout

The federal government won't pay you just for the asking, but you can recover investment losses with a variety of tax benefits.

By Carole C. Foos, CPA and David B. Mandell, JD, MBA | January/February 2009 | Legal Matters

 

The recent developments in 2008 have left many of us with less wealth than we had just a year ago. Our home and stock market investments are likely worth a lot less…and it may be years until the values of these assets return to previous levels. The federal government has agreed to spend hundreds of billions of dollars to bail out poorly run or mismanaged corporations. These bailouts will ultimately result in significant tax increases for all of us. It is natural for you to feel frustrated and upset that you will have to pay for other people’s mistakes. What you didn’t know, until now, was what you could do to get the government to help bail you out with some tax savings. Though our firm has strategies for managing investments in this type of market, the purpose of this article is to highlight a few tactics for regaining some of your lost wealth. The strategy has two simple steps to help you make up for lost wealth. First, you will reduce your taxes now so you will have more to add to your short term investment portfolio. Second, you will focus on building future wealth more tax-efficiently for the long term. Let’s examine both ideas. more »

 

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The ABC’s of CIC’s (Captive Insurance Companies)

For the right type of practice, with proper set-up and maintenance, our case study shows that captive insurance companies can be a vital part of doctors' financial plans.

By David B. Mandell, JD, MBA & Claudio A. Devellis, JD, CPA | Legal Matters | November/December 2008

 

As frequent speakers to physicians on asset protection and advanced planning, we are often asked about captive insurance companies (CICs). Certainly, CICs can be ideal tools if they are created for the right type of practice and are established and maintained properly. In this article, we will examine the benefits and costs of CICs and then demonstrate a case study of two doctors who use CICs to significantly enhance many areas of his comprehensive financial planning. more »

 

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Rethinking Asset Protection

The most effective ways to minimize financial risks over the long term may be surprising

By David B. Mandell, JD, MBA and Jason M. O'Dell, CWM | Legal Matters | September/October 2008

 

Too many physicians over the last decade have sought cookie-cutter asset protection plans to give them some “peace of mind” that if they ever endure an outrageous malpractice case, they won’t lose everything. While we admire these doctors’ commitment to pro-actively managing their risk, we have to remind doctors we speak with that all “asset protection plans” are not created equal. In fact, many will not even work if they ever are relied on. Why is this? Essentially, it is because of a basic tenet of asset protection: that any asset protection plan that will truly stand up if challenged must have economic substance. Taken a step further, superior asset protection planning would involve tools that are primarily used by people for non-asset protection purposes. In this way, the best asset protection plan involves tools typically not thought of as “asset protection tools.” In other words, “the best asset protection is not asset protection.” more »

 

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