Lawyering Up: Why an Attorney Should Eye that Employment Contract

When it’s time to accept a new position, you better have a lawyer who specializes in physician contracts on your side before you sign on the dotted line.

Unless you are planning on spending your entire career in solo practice, you will have to negotiate an employment agreement. The wording of your contract may well determine your employment satisfaction.

“An employment contract is a big commitment and you want to make sure everything is right before you go into it,” says Dennis Hursh, a healthcare attorney at Hursh & Hursh, PC in Middletown, Pa. “Keeping both you and your potential employer satisfied with the relationship is mutually beneficial in the long term.”

Some physicians may think that having an attorney review your contract indicates mistrust in your colleagues. However, having someone look over the agreement and making sure you understand your rights and responsibilities, as well as those of your employer, can make the difference between a good experience or one that isn’t so fulfilling.

Reflecting Things Important to You

“Most places initially give you a rather one-sided contract and that is as it should be since their attorney is supposed to reflect the things their client is concerned about,” says Hursh, who is author of The Final Hurdle: A Physician’s Guide to Negotiating a Fair Employment Agreement. “But it is also understood that there are things important to you that you want to be reflected in the contract. My job is to make sure your objectives are covered to the greatest extent possible.”

Clarifying Language

A seasoned physician contract attorney can help the physician clarify language that may seem self-evident on the surface. One example Hursh pointed to was the definition of “work week.” The contract says 40 hours and that seems easy enough to understand. However, is that 40 office hours or 40 patient contact hours? If the latter, do you have to physically be in front of the patient or does that include hospital rounds?

Another area of concern frequently seen in employment contracts has to do with the physician voluntarily leaving the practice. Many contracts say that both sides have to give 60 days notice before the contract is terminated. On the surface that may seem fair, but that is often an unrealistically short amount of time for you to get hired at the next place.

“Attorneys do these kinds of contracts on a daily basis while the doctor may only change contracts two or three times their entire career. If nothing else, the physician now knows what is expected of them going forward.”

“Many physicians underestimate the time it takes to find a new job,” Hursh says. “While you might able to get an offer fairly quickly, actually getting credentialed and in a position to begin work can take much longer. If you agree to something less than 180 days, you may be looking at a time with no income.”

Non-compete clauses in the contract are likely to make the job search harder if not properly worded. Are you stopped from practicing within a certain radius of the office you worked in or the entire metropolitan area? How long is the clause in place?

Picking Your Attorney

When picking out the attorney you want to represent you, Hursh suggests finding one that has experience in reviewing physician employment contracts. There are many subtleties such as call requirements that a generalist attorney may not know about.

He points to one example where the new person was to do all hospital call. To compensate the physician, the money from all laboratory services ordered at the hospital would be income for the doctor.

“It seemed a simple enough way to acknowledge the extra work,” Hursh explains. “The problem is that a regulator would look at that arrangement as paying for referrals which is fraud. It wasn’t nefarious, just an honest mistake that someone not well acquainted with healthcare law would have missed.”

Finding a healthcare-savvy member of the bar can be a challenge; there is no professional association or interest group of physician contract attorneys. Hursh suggests searching on the Internet for “physician contract reviewers” as a first cut.

After getting a list of possible attorneys, first look for those with membership in the American Health Lawyers Association. After that, review the websites of those you are interested in hiring. You want to know their background and experience in the specific task of physician employment contracting.

“Generally you want to know how many contracts a person has reviewed,” Hursh says. “Look for a focus on the subject. Some may do certificates of need, handle Medicare and Medicaid law and, oh by the way, an occasional physician contract. That person may be better than the person who specializes in torts or wills, but still not see some of the subtle considerations in the agreement.”

Don’t be concerned if many of these attorney practices are not the biggest ones around. Many of the larger health-related groups of lawyers will not take on physician clients because of concerns about conflict of interest with hospital clients.

“Attorneys do these kinds of contracts on a daily basis while the doctor may only change contracts two or three times their entire career,” Hursh says. “If nothing else, the physician now knows what is expected of them going forward.”

— Ullman, RN, MHA, is an Indiana-based freelance writer with nearly 30 years of experience. He wrote about care coordination software in the June 2016 issue.


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