Contractual issues for female physicians [PODCAST]

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“All physicians need to be concerned about issues such as potential delays in the start date, restrictive covenants, potential ownership in a private practice, malpractice tail coverage, employee benefits, etc. Unfortunately, until discrimination against female physicians ends, female physicians need to be especially vigilant in protecting their rights.”

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, “Special contractual issues for female physicians.”

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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, 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. Rate and review the show at KevinMD.com/rate. Subscribe at KevinMD.com/follow. Today we welcome back to the show Dennis Hursh. He’s a physician contract lawyer, and his most recent KevinMD article is titled “Special contractual issues for female physicians.” Dennis, welcome back to the show.

Dennis Hursh: Oh, thanks. It’s great to be here.

Kevin Pho: So for those interested in hearing more about Dennis’s story and prior episodes, just go to KevinMD.com/podcast, go to the search button in the upper right-hand corner, search for Dennis Hursh, and you’ll see all his previous episodes. But today I want to jump straight into your most recent article, and I think it’s a very relevant and topical issue, titled “Special contractual issues for female physicians.” Before getting to that article, just tell me the scope of the issues that prompted you to write something like this.

Dennis Hursh: Well, what really tripped it was I saw the results of a survey. I’m probably mispronouncing it, MedChi. It’s the state medical society of Maryland. It commissioned Merritt Hawkins, a very big recruiting firm, a very prestigious recruiting firm, to check out the income discrepancies, if any, between male and female physicians in Maryland, and the results just blew me away. I’ll read you some numbers. These are based on 2020 tax returns, so that year is significant. Not 1920; we’re talking tax returns filed two years ago.

In general, the pre-tax income of male physicians was 49.6 percent higher than that of female physicians. I’ll say again, that was 49.6, because a decimal place might have. That was unbelievable to me. Primary care male physicians in Maryland made 41.2 percent more than female physicians. In surgical, diagnostic, and other specialties, the gap was 33.5 percent. And in private practice, male physicians made 30.9 more than female physicians. That just blows me away, in 2020. Again, if that were a 1920 survey, I would have said, “Yeah, that makes sense.”

Kevin Pho: You review a lot of contracts, obviously for both male and female physicians. So just from your perspective as a physician contract lawyer, what are some of your hypotheses as to the reasons for that salary discrepancy?

Dennis Hursh: Honestly, some of it is, I think, I don’t blame somebody for coming in and making a low offer. If I’m buying your car, and it’s a nice new Mercedes, I don’t think I’m a bad person if I offer you $10,000. I mean, you can just say no. And I think some of it is that any new physician is obviously very anxious, wants to make a good impression, and needs this position. But I think females just tend to be, in our society, even physicians, even orthopedic surgeons, people who are very much taking charge when they step into a room, I think they tend to be deferential. So if somebody, an older male, says, “Well, here’s how we do it, and here’s what we’re offering, and it’s very generous, and it’s what everybody else got,” I think many female physicians will say, “Oh, OK, if that’s what everybody else got.” In fact, many times it isn’t. I think they’re taking advantage of female physicians more than males.

Kevin Pho: So just to be clear, you mentioned an almost 50 percent salary discrepancy. So in general, are you saying that a major reason is because female physicians tend to take the first offer and negotiate less than male physicians would? Would that be fair to say, that that is a major reason?

Dennis Hursh: I think it is, because once you start at your income, a lot of times you’ll get cost-of-living increases and so on, but that base is where you build off of. And even if you go to a new position, a lot of times they’ll ask, “What were you making at the old position?” So yeah, I think you start off low, and I think it’s very hard to catch up in the rest of your career. So I do think that’s a big issue.

Kevin Pho: And those numbers, are they adjusted for part-time versus full-time work, for instance?

Dennis Hursh: I don’t believe they are. So that could be; there might be more female physicians doing part-time. I don’t know. The survey wasn’t crystal clear. It just looked at male versus female. I don’t think it differentiated.

Kevin Pho: All right, so let’s talk about some of these special contractual issues that female physicians especially need to take note of. Go into your article and talk about some of those details.

Dennis Hursh: Well, I think one of the biggest ones is we don’t have to figure out what’s fair. We’ve got Medical Group Management Association, or MGMA, benchmarks. Those benchmarks are pretty specific as to a specialty, and whether it’s a hospital or private practice or physician group employing you. They’re very specific, and they’re very detailed. In some, you can get down to the state: “A hospital in this state, this is the median signing bonus.” So I think you need to look at that, and if you’re coming in significantly less, I think you need to ask why.

The joke I always do, and I’ve never really had the nerve to do it, but sometime in a negotiation I’m going to ask somebody, “If you don’t think this physician is a median physician, why are you hiring her? If you really don’t think she’s worth median compensation, then why would you hire this person?” As I said, I don’t think I ever have, but someday somebody’s going to push me, and I’m just going to pop the question to them.

But MGMA benchmarks, and particularly a signing bonus. There are things like relocation allowance, vacation, and CME. I don’t think there’s a lot of difference there; I think most places have a vacation and CME policy. But the sign-on bonus in particular, I think, is one where you really need to look at it, and you really need to make sure you’re getting paid a median at least, or explained why not.

The other thing I see, and I have female physicians ask me this all the time, is “Can they ask that?” Very few male physicians say, “That’s funny, they asked me if I intended to have a family.” But female physicians get asked that a lot, and that’s an absolutely illegal question. It’s not like if you didn’t read the paper today. In 1964, the Civil Rights Act was passed, and Title VII says you can’t discriminate based on race or gender or color, or sex, as I said, gender. So that’s been illegal for a very, very long time. Female physicians are still asked that question all the time.

Now, the person asking it is a medical professional, so that person probably understands that if the family has children, it’s going to be the female who produces the child. So it really is a very clever way, I think, of discriminating against women. Again, if a man’s family has a child, it’s not going to be a big disruption to his career, but there will be time off if a female physician has a baby.

Kevin Pho: So take us into that negotiation conversation. Let’s say a female physician were asked that question that was potentially illegal. How should she respond?

Dennis Hursh: Well, I think it sort of depends on how you’re getting along with the interviewer. My inclination would be to say, “Well, obviously that’s not a question that you’re allowed to ask. We’re thinking about it; we haven’t really made any decisions yet.” I’ve had women ask me, “Should I tell them that I’m pregnant?” And my response is always no. It shouldn’t matter. I mean, if I’m at an interview, I don’t think I need to tell you, “My back’s really bothering me a lot, and there’s a strong possibility I’m going to have to be operated on in the next couple of months.” There’s a Pregnancy Discrimination Act that says that pregnancy has to be treated like any other disability. So I think you just gently say, “Well, that’s really not something I’m comfortable answering. I think it’s kind of directed at me as a woman, and I think you should look at my credentials and not my sex.”

Kevin Pho: So I want to go back to the salary discrepancy point. When you’re negotiating on behalf of a female physician, does gender ever get into that conversation when you negotiate with that health care system, ever, explicitly?

Dennis Hursh: I think most people are smart enough to say, “Well, you know, she’s a woman, so we’re not going to pay her as much.” I don’t think there are too many people who are that clueless out there. But a lot of times, I do come in, and I sometimes get reviews from the same institution. So I’ve actually had it where, in that specialty at that institution, he was offered, I think, $50,000, and she was offered $30,000 as a signing bonus. Same specialty, same department, same hospital. So it really is out there, and I don’t know what they’re thinking or why they do it. As I said, I don’t blame them for coming in low. I think that’s a negotiation, and don’t accept it if it’s not fair. But I literally have seen the same institution offering smaller sign-on bonuses to female physicians.

Kevin Pho: And in those cases where you’re privy to that type of contrast, how do you advise your clients to respond?

Dennis Hursh: Well, I usually don’t go into, “Hey, you gave him the sign-on bonus.” But again, I’ll look at MGMA and say, “Look, the median is this.” And to be clear, the male physician hadn’t gotten a fabulous signing bonus. As I recall, he got the median MGMA benchmark. So it wasn’t a question of “I know you gave somebody else a special deal.” I’ll just come back and say, “Hey, the benchmark in this area is this. Why are you offering less?”

Kevin Pho: So you mentioned the illegal question that employers may ask female physicians about potentially starting families. Are there any other questions that females should be on the lookout for?

Dennis Hursh: Well, I think that’s the biggest. They shouldn’t be asked if they’re married, because that’s the same thing. It’s funny, I think sometimes male physicians are asked that, but I think it really is more of a “Let’s get to know each other, break the ice, tell me about your family.” There’s a real concern now that, with a female physician, maybe what I’m really trying to find out is, are you married? Because if you are, you may be thinking about having children, and that’s going to be time off. So those are the kinds of things, basically personal. It doesn’t matter if you’re married. You’ve got a CV; they know what your training is. They’re meeting you. They can tell whether or not you seem like a reasonable person who’ll deal with referral sources and patients. So whether you’re married really shouldn’t be on the table.

And I think those are the kinds of things where it’s tough, because I do think sometimes people ask it really innocently, sort of like, “Well, what are your hobbies? Do you golf? I golf. Do you have a family? I have a family. Do you have kids? I have kids.” But there’s also a strong possibility they’re trying to figure out, “Oh, you’ve got kids, and you’re a female physician. You’re probably going to be responsible for taking care of those kids. So maybe I should be looking for a male who won’t have those responsibilities.” So it’s a tough call. As I said, I think a lot of people don’t do it with the intent of discriminating. I think a lot of people are just making conversation and trying to break the ice. But you do have to be very aware of that. I just generally advise my clients to just say, “You know, I don’t think that’s critical to my qualifications for this position,” and just kind of brush it off, and hopefully that’ll trigger with the interviewer that, “Oh yeah, I shouldn’t have asked that question.”

Kevin Pho: So you mentioned at the outset that new physicians and female physicians sometimes may not be as confident in their negotiation skills. So share some tips that you could offer to these physicians to be better negotiators.

Dennis Hursh: Well, I think one problem I see with all physicians, and that’s not just related to females, is that you’ve just stepped out of a fellowship, and you look around, and there are 15 other physicians out there who are every bit as qualified as you. And I think you go into an interview, and your whole life you’ve been competitive. Probably from high school on, you really had to compete to get to where you are, to get into med school, to get the match. Everything you’ve done has been competitive, and I think a lot of that carries on with all new physicians. When they’re being offered a contract, they’ll say, “Oh, there are so many other qualified physicians. I know these 15.”

Well, there might be 15 equally qualified physicians, but it’s a very big country. The fact that there are 14 other folks who are just as qualified as you is totally irrelevant. There’s most likely a very severe shortage in your specialty, and you are very much needed. So I think you have to take your mind out of that competitive stance that you’ve probably been in your whole life, that you’re competing. You’ve got to realize that once they make a job offer, you’re the prize. You’re not competing anymore. Now they want you. They’ve decided they want you, and so it’s important that you get what’s fair.

Kevin Pho: Now let’s try another scenario. Let’s say you’re already working for a health care institution, and you realize that your salary is tens of thousands of dollars lower than a male physician’s salary of equal experience. Now, are there any recourses that that female physician could have in that scenario?

Dennis Hursh: Well, there’s always the, I usually say, go in and talk and say, “Look.” And again, I tend to revert to MGMA benchmarks, the reason being that most employers have a confidentiality clause. So you can’t say, “I was just talking to Kevin, and I know he makes,” because that means you just breached your confidentiality. So it’s difficult to say, “I’ve spoken to so-and-so.” I find that interesting. I get it all the time when I’m reviewing contracts. They’ll say, “Well, I talked to some guys there, and here’s what they’re making, and so I’m going to tell them.” It’s like, “No, you can’t tell that.” But again, I think you revert to MGMA.

Something I’ve had clients do, and I just can’t, for the life of me, recommend it, but I’ve had many clients who have said, “I know they need me desperately. I’m giving my without-cause termination, so I’m out of here in 90 days, but I’ll stay if you renegotiate your contract.” As I said, that works well for some people. If it were me personally, I don’t think I could be sleeping at night, so I don’t see me personally doing it. Some physicians are comfortable doing it.

But I usually just go in and say, “Look, I’ve talked to some people. I’ve looked at MGMA benchmarks. I think I’m really underpaid, and I think we need to talk about it.” And most places will discuss it. I mean, a lot of places aren’t going to say, “Yeah, you’re $40,000 under the benchmark. Why don’t we give you a $40,000 raise?” But most places will at least throw you a bone and say, “Well, times are bad, but we can give you $10,000, and we’ll give you a one-time bonus of this.” So sometimes you can sort of come a little bit closer, and it is a ratchet, so you want to keep trying to get up to parity as quickly as you can.

Kevin Pho: So you’re saying that most places would proverbially throw you a bone. Realistically, how often does that happen?

Dennis Hursh: It happens quite a bit, where they’ll go in and we’ll cite the benchmarks. The thing I always like is they come back and they say, “Well, we have a three-year blended average.” OK, because, you know, 2018 was a great year? Why are we looking at 2018 salary? They’ll always have something that sounds so very scientific as to why they really can’t, but they generally do. You’ve sort of given them a clue that you’re not happy, and physicians are extremely hard to get, worse now than before. Recruiting is a major expense, and when you recruit a physician, there’s always a certain amount of risk you’re taking. I mean, you interview this person, and they can go 15 minutes without being a jerk. That doesn’t mean that when they get into a pressured situation, they’re not going to be snapping at the MAs, snapping at the RNs, and not really have good patient relationships. So they’re taking a risk. It’s not like, “If you don’t like it, we’ll get somebody else with a white coat.” It’s really not that easy. So they know they’ve got somebody who’s unhappy, and they usually will work with you to a certain extent. A lot of times, they won’t just say, “Sure, we’ll bring you up to where you should be,” but they usually will improve things somewhat.

Kevin Pho: We’re talking to Dennis Hursh. He’s a physician contract lawyer. His latest KevinMD article is titled “Special contractual issues for female physicians.” Dennis, what are some of your take-home messages that you want to leave with the KevinMD audience?

Dennis Hursh: I think one is, as a female physician, you know in your heart you’re every bit as capable and clinically accurate as any male physician. So forget about your gender. Remember how important you are, remember how hard it is to recruit physicians, remember that it’s going to be very hard for them to replace you if you’re already in there, and just get what’s fair. I’m not saying go in and use the gender card or anything else. I think you are entitled to a fair contract as much as anybody else, so I think you need to stand up for your rights and look for a fair contract.

Another thing you may want to look at: A good friend of mine, a family medicine physician in Pennsylvania, set up an organization called RYHE.org that rates health care employers. As a physician, he knows the things that are important to physicians, so it’s better than some of these national ones that rate manufacturing facilities and McDonald’s, and maybe the local hospital. So I think looking at the culture of a place is also very important, to make sure you’re not in an old boy network when you walk in.

Kevin Pho: Dennis, as always, thank you so much for sharing your time and insight, and thanks again for coming back on the show.

Dennis Hursh: It was my pleasure.

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