Are hospitals evil? A physician contract lawyer explains. [PODCAST]

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“Unfortunately, when negotiating with hospitals I am frequently forced to deal with individuals who need to ‘explain’ the importance of maintaining flexibility in their workforce (a wonderful business school phrase that appropriately dehumanizes the people who are accomplishing the purported mission of the hospital to treat the sick and injured). The hospital personnel frequently tell me that limiting patient contact hours to ‘only’ 32 or 36 hours per week is considered part-time. Many contend that keeping the electronic health record boxes all appropriately checked should be done on the physician’s own time. I assume the hospital administrators would be pleased if a physician avoided any personal contact with the patient during whatever brief moments are allocated for a visit so that the electronic health record can be put into a condition that allows billing for the visit.

Physicians, of course, spend their visits treating the patient as a human being rather than a unit on the assembly line that is their schedule. Doing so requires significant outside time polishing the record so that the hospital may bill. Hospital executives apparently view this as an inefficient use of resources, and therefore frequently insist upon 40 patient contact hours per week.”

Dennis Hursh is a veteran attorney with over 40 years of experience in health law. He is founder, Physician Agreements Health Law, which offers a fixed fee review of physician employment agreements to protect physicians in one of the biggest transactions of their careers. He can also be reached on Facebook and LinkedIn.

He shares his story and discusses his KevinMD article, “Are hospitals evil? A physician contract lawyer explains.”

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Hosted by Kevin Pho, MD, The Podcast by KevinMD shares the stories of the many who intersect with our health care system but are rarely heard from.

Transcript

Kevin Pho: Hi, and welcome to the show, where we share the stories of the many who intersect with our health care system but are rarely heard from. My name is Kevin Pho, founder and editor of KevinMD. Today on the show, we have Dennis Hursh. He is a physician contract lawyer, and he wrote the KevinMD article “Are hospitals evil? A physician contract lawyer explains.” Dennis, welcome to the show.

Dennis Hursh: Thanks. I think one of the questions you were talking about is my story. The reason I sort of got into this was about 31 years ago, my first child was born, and she had DiGeorge syndrome and everything that goes with it: truncus arteriosus, neurology issues. So we spent probably most of the first year of her life in the hospital, and that’s when I really got to know physicians as other than people in white coats who run in and out.

In particular, one night the cardiac care fellow and the intensive care fellow spent all night at her bed, with the worried looks, and the cardiac fellow apologized because he had to go get, as he put it, his sustenance. He came back in 10 minutes with a small salad, and that really impressed me, that the physician had to apologize, because physicians eat too.

So based on that, how do you thank somebody for that? They brought her through. We’ve had a lot of other incidents since then, but she’s a healthy person now. How do you thank them? I mean, I wrote a letter to the hospital, wrote a letter to them, wrote a letter to the hospital CEO, and eventually I ended up just forming what I think is the first law firm in the country that just focuses on physician employment agreements. I also wrote a book on physician employment agreements. So that’s kind of how I came to be involved with physicians.

Kevin Pho: So even after all these years, I still get a lot of questions from physicians about whether they should have a physician contract lawyer review their agreement prior to signing, and we have these questions all the time on physician-only Facebook groups. So tell my audience, why is it important for physicians to obtain some legal counsel during the contract process?

Dennis Hursh: Well, I think first of all, you hear, “This is our standard contract.” Literally, there’s one region of one health system in the country that won’t change its contracts that I’ve run into, and once or twice in the 30 years I’ve been doing this, I’ve had a hospital refuse to change a contract. Generally, they will change it, and you just have to have some kind of reasonable standard in there: patient contact hours.

And again, I’m not saying that because it’s good for you as a physician. I kind of worry if I’m seeing a physician that’s doing 40 patient contact hours a week, call three days a week, and then maybe another 20 hours a week working on medical health records to keep them polished up. So I think it’s very important that you look at things like patient contact hours and call coverage. They may not be able to guarantee something, but most places, I have gotten them to say it won’t be more than this, and if they have to hire a locum tenens to come in and do it, then do it.

But I really believe that physicians are so focused on their patients that it’s hard to get them to focus on themselves. What I tell them is, do it for your patients. If you get burned out, you’re not going to give good care to your patients. So do it for your patients. Make sure you have a reasonable life so that you can do the quality of medicine you’re capable of doing.

Kevin Pho: When it comes to contracts, obviously negotiations are involved, and physicians just really aren’t versed in negotiation. It’s just not really part of their medical training. So when it comes to physicians who have to negotiate with the hospital system, what kind of tips and advice can you give them?

Dennis Hursh: Well, first of all, realize how valuable you are. What I see all the time with fellows is they look around and they see 20 other people that are just as well qualified as they are, and they think it’s some kind of competition. There’s such a shortage in this country right now of physicians. You have to realize how valuable you are and how hard it would be to replace you. It’s shocking to me that, with the training physicians have and the value that they bring, they really don’t seem to have a very high opinion of their own net worth and what they bring to the hospital.

So I think you have to realize that you’re putting hundreds of thousands of dollars on the bottom line of the hospital, and you deserve a life too. Yeah, you’ve got to take care of your patients, and we expect you to take care of your patients, and we know you will, but at the same time, you need to have a reasonable life. And again, I don’t think there’s any other profession I’d have to say this to, but don’t do it for yourself. Do it for your patients, so they get good-quality care and don’t have a burned-out physician they’re dealing with.

Kevin Pho: Over the last five years or so, on my blog and on various physician Facebook groups, we talk a lot about physician burnout, and we tell them exactly the same thing you’re telling them, that physicians need to know their worth. Even after all this talk, all these KevinMD articles, all these podcasts over the last few years, have you seen the needle move a little bit in terms of physicians valuing themselves?

Dennis Hursh: Very, very little. I was shocked. I thought the Great Resignation would result in a slew of physician renegotiations, and it’s not. I mean, physicians put themselves in the shoes of their patients too much. You say, “Well, my patients, it takes forever for them to come see me, so I guess I’ll have to have more office hours.” At some point, as I said, you have to look out for yourself. So no, I’m not seeing a great movement. As I said, physicians are too concerned with their patients. I know it’s hard to say to a physician, but you know, you’re a person. To give good-quality care, you need to take care of yourself too.

Kevin Pho: All right, let’s talk about the KevinMD article that you wrote. It’s titled “Are hospitals evil? A physician contract lawyer explains.” Now, for those who didn’t get a chance to read your article, can you just walk my audience through it and share the story of why you decided to write it?

Dennis Hursh: On the same day, I negotiated with two different hospitals, and two different hospitals told me that, when I asked for 32 patient contact hours a week so that the physician has some time to do medical health records and so on, they explained that that was a part-time position. And as you know, 40 hours of patient contact per week is going to be about 60 or 70 hours for a lot of physicians, getting the EHR done. So I was really frustrated.

Then I got thinking about it, and can you really blame them? It’s not like the MRI machine. The MRI machine, you have to keep the maintenance up, or it’ll simply break. The janitor, if you ask him to come in and work extra, he’ll charge you overtime, and that’ll go to the bottom line. Literally the only thing in that hospital, probably nurses too, but physicians are the ones that you can just push and push, and they’ll keep billing, which is what you’re interested in. They’re not going to go home if there are patients still in the waiting room at six. They’re going to see them. The physicians are just going to do whatever has to be done to take care of their patients.

So you kind of can’t blame the hospital. There’s really no need for them to look out for the physicians. As I said, equipment breaks, unions quit or don’t do the same quality of work, but a physician is going to give the very best care he can for his patient, no matter what it takes. So I was so frustrated about the part-time crack that that’s what kind of got me to sit down and write that article.

Kevin Pho: I read somewhere it costs the hospital system about a hundred thousand dollars to replace a physician who leaves. Now, doesn’t that factor into some of their calculations when it comes to proverbial work-life balance and how they treat physicians?

Dennis Hursh: You would think it would, and at some point, I think it might. When you usually see it happen is when you start getting a slew of resignations, or the 50-year-old physician retires, and now the 48-year-old is talking about retiring. But you don’t see it the way you would in any other, you know, I love, they call it the workforce, it dehumanizes it nicely, but you don’t see that anyplace else. And as I said, they know they can push those physicians as hard as they want to, and patient care won’t suffer. Nothing else will suffer. So I think that’s why.

Yeah, you would think that $100,000 would make them think, but look at the bottom line of a hospital. I mean, literally: We can burn out a few physicians if we spend a couple hundred thousand dollars replacing them. And the thing is, we burn out too. We can probably push their work onto the other physicians for a good long period of time. So it just isn’t, you can make so much money off of the physicians, I don’t think a hundred thousand dollars just strikes them as an unreasonable expense to keep grinding.

Kevin Pho: I had another physician executive on the show, Pat Fahy, a couple of months ago, and she talked about something called the business school mindset. I don’t want to misquote her. I think she said something like the business school mindset takes a dim view of humanity. How much of that business school mindset do these administrators really have, and how much does that business school mindset drive their decision-making?

Dennis Hursh: Well, I think it completely does. I mean, they’re business people. They talk about how we’re in the quality of care, but “I’m an executive that happens to work for a hospital that happens to treat sick people. But I’m an executive. I’ve got a budget. I will do better. My bonus will be based on me maintaining my budget.” So they’re just driven into a business mindset, and you can’t blame them. I mean, I don’t know of any hospital executives that get any kind of incentive for patient care or quality of life for the physicians. It comes down to money. “So we found an area where we can squeeze really hard. Why shouldn’t I? It’s my bonus at risk.” So yeah, it absolutely is a business mindset. These people are MBAs, and they’re in a big enterprise that’s billing sometimes billions of dollars. It’s a business for them.

Kevin Pho: So in this environment, where you have new physicians coming out of residency looking for jobs, and even physicians leaving one job and going to another, we talked about this earlier, what are some ways physicians can push back? You mentioned that physicians need to know their worth, but let’s put that in practice in a negotiation setting. What exactly does that look like?

Dennis Hursh: I think you have to say, “Look, I’m working 60 or 70 hours a week, and I’m not willing to do that anymore. I am willing to work more than most people do, and of course I’ll still take call and go through sleepless nights and all that, but I need to have reasonable patient contact hours. You need to spend the money to hire a locum tenens, because I’m not doing more call than this number from now on.”

And they’re looking at, “Well, we can start recruiting,” and it’s not just money. It’s also usually a lot of physician and executive time involved in meeting with these people and making sure. And there’s always a question when they’re interviewing. I mean, they know you’re well qualified. If you’re ready to become a physician in this country, you’re well qualified. We know that. But all they know really is that you can go 15 minutes without being a jerk in an interview when they’re hiring a new physician, whereas you’ve been there a while. They know you’re getting along with the staff, the patients love you, you’re a known quantity. That’s worth an awful lot too.

So I usually just say, first of all, “I should be paid more. I should be paid for excess call. I should be paid, let’s look at MGMA, I at least need to get paid that. I should get productivity compensation, and there are quality-of-life issues that we must address.” And again, I tell physicians, do it for your patients. Don’t do it for you, because I know you’ll just keep taking it for your patients. But you can.

Kevin Pho: So one of your physician clients says all that and tells you to negotiate with the hospital with that mindset. In general, how flexible are the hospitals when you present them with that scenario?

Dennis Hursh: They can be, and it depends obviously on the physician. There are some specialties that are extremely hard to replace and are putting an awful lot of money on the bottom line. They’re generally fairly flexible. Now, if MGMA says X dollars is the median, they can probably go over that. They’re not going to pay you twice the MGMA median, and they can’t; various laws prevent them. So they’re not going to give you outrageous money, but at the same time, they can give you benchmarks kind of money. There are benchmarks for excess call that they can pay, and I find that they’re fairly reasonable.

Even things like a reasonable assignment. I’ve had physicians that have been there for 10 years, and they’ve been assigned to one hospital. Nobody’s going to move them, but their contract says, “We can move you anywhere in the system, and we may have hospitals 70 miles away.” That’s the kind of thing where it doesn’t hurt them to say, “Yeah, we’ll agree that we won’t assign that physician any place other than X hospital.” A lot of times, a physician says, “I don’t care. I trust the CEO.” But nowadays, that CEO can be gone next week, and you can get Chainsaw Al coming in.

So you can’t ever say, “They’ve been reasonable on this.” I think you have to look at everything in the contract and assume that at some point, somebody may push it. As I said, there are a lot of things that may not even have an impact, but to me, I would sleep better knowing that they can’t send me to that hospital 75 miles away, even though my current contract says they can.

Kevin Pho: We’re talking to Dennis Hursh. He’s a physician contract lawyer, and he wrote the KevinMD article “Are hospitals evil? A physician contract lawyer explains.” Dennis, you touched upon a couple of points in a typical contract that physicians should be aware of, patient contact hours, for instance. What are some other overlooked areas that physicians should be aware of when negotiating contracts?

Dennis Hursh: Call coverage. For new physicians, a huge issue to worry about is start date. You move into town, maybe you signed a mortgage, or at least you’re renting property, and a lot of these contracts say, “If you’re not credentialed with absolutely every managed care company, we can terminate the contract, or we can just push back your start date.” So there ought to be reasonable provisions in there that would allow you to negotiate. Now, if you’re a geriatrician and you’re not credentialed with Medicare, that’s a big problem. But if you’re not credentialed with one company, usually they can schedule patients with other companies. If one hospital hasn’t credentialed you, the other physicians could probably admit patients, maybe do rounds for a little bit of time. So that’s something I see a lot of new physicians caught in.

As I said, malpractice tail coverage is another one, and the restrictive covenant is one I see. I see hospitalists that are asked to sign a restrictive covenant. Now, I’m sorry, you can be the greatest hospitalist that ever walked on the face of the earth, but I don’t really think you’re going to take any patients away if you move to another hospital. So the restrictive covenant should be reasonable. It should be based on where you’re seeing patients, not every location that the health system has. And when you change, it should be based on where you are, not every location where your new health system has an office. So those are the things that I see people getting tripped up on most.

Kevin Pho: Regarding restrictive covenants, I hear conflicting information on whether they can actually be enforced by hospital systems. What are your thoughts on that?

Dennis Hursh: Well, actually, here’s a true story I have in my book. I represented a very senior physician, very active in the medical society, a specialist, so wherever he went, he would have a lot of referrals on day one, because a lot of people knew him. Before I represented him, he signed a contract that had a 65-mile restrictive covenant. He was looking at a hospital 63 miles away. The general counsel of the new hospital and I talked, and we both agreed the other hospital would be crazy to bring that lawsuit, because all the restrictive covenants for all their positions would get thrown out if it was tossed. I mean, we literally said, “There’s no way a court’s going to enforce this.”

The bottom line is they hired somebody else, because they thought about it: “We may win, but we don’t want to go to court. We don’t want to tangle with that other health system. If there’s a possibility of a lawsuit, we want to avoid it.” So physicians have to realize that the market will enforce a restrictive covenant that a court never would.

Kevin Pho: And when physicians start looking for contract attorneys, what are some things that they should be looking out for?

Dennis Hursh: Well, I think somebody that’s done a lot of it, not, you know, “I’ll stop my dog bite case and take a look at your contract,” and also really somebody that has a lot of experience with physician contracts. There are things in this industry, if you will, that nobody else has. In no other industry would you have to carefully make sure that there’s no way anybody could construe that you were getting payment for a referral. And the Stark regulations, I keep them in my desk drawer, but they’re about that thick. They’re about three inches thick.

So you need somebody that can make sure you don’t run afoul. I’ve actually done contracts for, it was a small health system, and I’m quite certain that the contract violated Stark. I had to go back and say, “Talk to your lawyer about that,” because Stark had changed recently. So I think you want somebody with experience, certainly in employment contracts, but preferably with contracts with physicians.

Kevin Pho: And my final question: What are some of the take-home messages that you want to leave with the KevinMD audience?

Dennis Hursh: Well, I think you have to take care of yourself. Even if you’re not doing it for yourself, even if you don’t, and this is harsh, but if you don’t care about your family, if you don’t care what you’re doing to your health, your patient care is going to suffer if you are not getting enough sleep, if you are totally burned out. So take care of yourself so that you can take care of patients, and get a fair contract. Make sure your contract doesn’t allow them to push you around.

Kevin Pho: And Dennis, how can people reach you?

Dennis Hursh: Well, my website is pahealthlaw.com, Physician Agreements Health Law dot com. That’s probably the easy place. My phone number is 866-DOC-LAW1, and my email is dennis at PA Health Law.

Kevin Pho: Dennis, thank you so much for sharing your insight. I appreciate you being on the show.

Dennis Hursh: Great. It was a pleasure.

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