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Join Dennis Hursh, an attorney with over 40 years of experience in health law. We explore the complex decisions physicians face when considering leaving a position without proper notice. Discover the legal, financial, and reputational consequences that can arise, along with practical advice for navigating these challenging situations. Tune in for valuable insights into safeguarding your career and making informed choices in the world of health care employment.

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 discusses the KevinMD article, “What happens if I don’t give the notice required under my physician employment agreement?”

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Transcript

Kevin Pho: Hi, and welcome to the show. Subscribe at KevinMD.com/podcast and get CME for this episode by clicking on the CME link in the show notes. We welcome back today Dennis Hursh. He’s a health care attorney. His KevinMD article, which we’ll talk about today, is “What happens if I don’t give the notice required under my physician employment agreement?” Dennis, welcome back to the show.

Dennis Hursh: Yeah, thanks. It’s good to be here.

Kevin Pho: So Dennis has been on many times talking about physician employment contracts. Go to the upper right-hand corner, there’s a search icon; click on that for Dennis’s past shows. So today we’re going to talk about giving notice under the physician employment agreement. Now, tell us how your article came together.

Dennis Hursh: Well, it seems like I’ve had a rash of these recently, and I think because, as staffing gets worse, hospitals in particular are just pushing physicians harder. I’ve had a lot of physicians who just said, “I’ve had it. I’ve got to get out of here. I just looked at my contract, and it says I have to give 90 days’ notice, but I hate it here. I’m ready to go someplace else. And I looked all through the contract, and there’s nothing in it that says I can’t just leave earlier. It doesn’t give the employer any penalty if I leave early. So I assume that means I can just leave whenever I want, and nothing will happen to me.” And as I said, we usually have to kind of give some bad news to the physician: No, that’s not really the case.

Kevin Pho: So in many cases, what exactly do most physician employment agreements say when it comes to leaving the practice?

Dennis Hursh: Most of them don’t. They’ll have a without-cause termination that says you give 90 days’ notice, for example. I mean, I always shoot for more, to give the physician time for credentialing and everything, but most of them say either party can terminate on, let’s say, 90 days’ notice. And that’s it. It doesn’t say anything like, “If you don’t give 90 days’ notice, then this happens.”

Kevin Pho: All right. So in many cases, if a physician just wants to walk up and leave, you advise them not to do that. Why should they not do that?

Dennis Hursh: Well, you’re breaching your contract, and when you breach your contract, all kinds of bad results flow from that. The first thing is the employer may be able to get money damages from you. So if you have patients scheduled for the next 80 days and you’re not going to be there for at least some period of time, they may very well go out and hire a locum tenens company to cover. And a lot of physicians say, “Well, locum tenens physicians don’t get paid that much.” That’s true, but the locum tenens companies do get paid a lot. So the difference between what they’re paying a locum tenens company and what they were paying you can be fairly substantial.

Other bad things come from it. You probably know, if you’re going for credentialing, they need to say that you were perhaps the finest physician that ever walked on the face of the earth. If somebody says, “Oh, he’s an average physician,” that’s definitely a red flag. So when they’re contacted for credentialing, it’s very easy for them to torpedo a credentialing, and again, by not saying anything bad, just being neutral: “He’s an average physician. We didn’t have any serious problems with him.” And, you know, for most employees, that would be a fine recommendation. For a physician, that’s a death sentence.

Kevin Pho: Now, have you seen cases where employers actually went after physicians monetarily because they breached their contract and left early?

Dennis Hursh: I actually haven’t. I’ve had one where they threatened it, but they didn’t actually do it. I mean, a lawsuit is expensive for both parties, and they’re not as likely to do it. And also, if you’re a hospital and you’ve got a couple of hundred employed physicians, it really doesn’t do you a lot of good for your physician relationships if you go after a physician, even if that physician was in the wrong.

You know, I think there are some that do what they call in terrorem, same as the IRS will go after the grandma who didn’t report, you know, the $10 she got in the lottery or something. They don’t so much do it for the money as so that people read about it and say, “Oh, if they went after her, they’re definitely going to come after me.” So I think there’s a risk of that. I have not actually been involved in any monetary damage cases, though. They’ve usually backed off.

Kevin Pho: So let’s talk about the mechanics of actually leaving a physician job. There are so many different ways to do it: in person, how much to write. Just from your experience, what is the proper way, or the recommended way, for a physician to leave their job?

Dennis Hursh: Well, first, follow the contract. So if it says certified mail, return receipt requested, to this address, with a copy to this address, do that. Then usually, to keep relationships good, I usually recommend you go to the chief of the department or whatever and say, “Hey, you know, my contract said I had to do this, so you’ll be getting this letter, but I just wanted to give you a heads-up that I’m resigning.”

As far as a resignation letter, if you can do one sentence, that’s great. I usually say something like, “I hereby resign pursuant to section 8A of my employment agreement.” And maybe say something like, “I appreciate the opportunity to serve patients in your fine institution.” But a lot of times people will say, “Oh, I’ve got these 27 beefs against them, and I’m going to write this 50-page letter that lays out in detail all the things they’ve done in the staffing ever since the last three years.” And I don’t recommend doing that, because if you think about it, if I mailed you a letter and said, “You are a bad physician,” you’re not going to go, “OK.” You are absolutely going to respond to that, you know? And now we’re going to get into a back-and-forth, and there’s just no benefit to that. You have the right to leave without cause. Just say, “I’m exercising my rights. Thanks for the opportunity,” and don’t go into anything else.

Kevin Pho: So let’s say you give that notice to your employer. What normally happens next?

Dennis Hursh: Well, it depends. As things get tighter and the physician shortage gets worse, a lot of times people are still being scheduled. As recently as three years ago, it wasn’t uncommon that they would say, “Thanks.” And a lot of contracts have the option for them to say, “Don’t come in Monday. We’re going to pay you for the notice period, but we don’t want you in here.” That used to be common. I’m seeing it less and less now, and I think staffing has just been pushed so hard, I just don’t think they’re able to push them out anymore. But it still isn’t rare that they’ll say, “Thanks. Don’t come in. You know, Monday’s your last day, and we’re going to pay you. Have a nice life.” Because really, nobody wants a physician that doesn’t want to be there, in general.

Kevin Pho: Do you see cases where employers may meet with a physician to perhaps work out some of their differences and try to retain that physician after notice has been given?

Dennis Hursh: I’ve never seen that. I’ve had one where the physician said, “Look, I got a much better deal across town,” and there was the covenant not to compete. And I’ve had one case where they came in and said, “We’ll match that salary.” But other than that, no. Generally, when somebody says they’re leaving, the employer just says, “OK, you know, that’s the way it is.”

Kevin Pho: Now, I’ve heard some anecdotes that during that 90-day period after a physician gives notice, the employer can make life miserable for that physician. And this is just through the grapevine. Are stories like that true? And if so, what can that physician do to protect themselves against something like that?

Dennis Hursh: Not a lot. I’ve had it happen just a few times. I wouldn’t say it’s common. Anecdotally, I’ve had one or two where they started scheduling a lot more. They started overbooking the physician and a few things, but really, that’s unusual. Generally, the physician just works whatever the notice period is, and there are no problems.

All you can do is, since you’re following the contract, you can insist that the employer follows the contract, too. So if there’s a patient contact hour limitation, you should insist on that and say, “Look, you know, you’re scheduling me more than my contract requires.” If the contract says call coverage will be equitably allocated: “You can’t be giving me more call coverage.” So you can push back. And at some point, I think you are in a better position now than normally, because they know you’re leaving. If you say, “Look, that breaches my contract. If you don’t fix that, I’m leaving,” for you to do that to your employer, it’s kind of scary. You know, it’s sort of, “I’ve got a hand grenade here, and I’m going to drop it between us if you don’t comply.” But if you’ve already given notice, you know, we presume you’ve got your new position in place, and it’s a pretty backed-up threat.

Kevin Pho: So let’s say a physician comes to you for advice, and they’re perhaps in that gray area where they’re not happy with their job, but they’re not sure whether they want to leave or not. What kind of questions would you ask that physician to determine whether they want to take that final step and actually leave their position, versus staying and maybe working out some of the differences?

Dennis Hursh: Well, I think it depends. Do you have another offer? Have you looked around? I mean, is the pay comparable? Are the hours comparable? Are the working conditions comparable? I mean, you shouldn’t just say, “I don’t like it here. I’m sure any place in the world is better.” You should be looking around, seeing what other places are offering, and talking to other places and seeing, you know: How much call do you have? What are your patient contact hours like? What’s it like working there? What’s the staff like? So I wouldn’t just say, “It’s bad here. It’s got to be better any place in the world.” Look around.

And if you look around, and you’re really not happy, and someplace appears to be better, and you’ve checked it out on the websites and all the dot-orgs and all the places where you can check up on an employer, then I’d say start pursuing that opportunity and at least see if the grass really is greener. But like I said, there’s no perfect job. So the fact that you’re not happy where you are, I don’t think, is a reason by itself.

Kevin Pho: In general, should physicians have another job in hand before they give notice to their current job?

Dennis Hursh: It’s funny, I have a lot that don’t. Personally, if I didn’t know where my income was coming from in 90 days, I can’t imagine saying, “I quit, and I’m sure I’ll find something.” Yeah, a physician will find something; there’s no doubt about that. I think it’s a matter of personal risk tolerance. Personally, I can’t recommend to somebody, “Just quit, and I’m sure you’ll find a position.” But I’ve had lots of clients that do it. You know, they know there’s a shortage, they know people are out there screaming for more physicians, and I’ve had people do it. But I just can’t recommend it myself.

Kevin Pho: One of the things you mentioned earlier was credentialing: You’ll need a good word from the employer that you’re leaving. Is there any way to guarantee that good word? Is there any way to get assurances that that recommendation would be positive if you leave amicably?

Dennis Hursh: Oh, yeah. At times I’ve even asked, “Can we work out the letter that you send somebody?” If things are amicable, there’s probably not a reason that they’re going to say anything negative. The concern is going to be, and honestly it would give you pause as a new employer, if they said, “Yeah, he had a 90-day notice, and he left after, you know, he gave us 10 days and left.” I think if you were a new employer, just that fact, which is absolutely true, would give you pause, you know, about hiring that physician.

Kevin Pho: We’re again talking to Dennis Hursh. He’s a physician employment lawyer. His KevinMD article that we’ll talk about today is “What happens if I don’t give the notice required under my physician employment agreement?” Dennis, tell us again some take-home messages as they relate to early termination and your KevinMD article.

Dennis Hursh: Well, I think one of the biggest things is to remember the attorney’s golden rule, and that’s different than most people’s. For attorneys, the golden rule is: He who has the gold rules. And if you’re leaving and breaching an employment agreement, the fact that your employer owes you money, they owe you money under an agreement that you breached. They may not pay it. They may have an agreement to pay your tail if you leave, and again, if you’ve breached the agreement, they may not do it. So be aware that you can’t look at your contract and say, “Whatever I’m entitled to under the contract, I’m sure I’ll get that if I leave.”

The other thing is, if you can, I always try and recommend you just stick it out. The downsides are so big. The potential for a credentialing call to go sideways is, you know, it’s two physicians talking to each other on the phone. If one just kind of goes, “Well, how was he as a physician?” “Well, you know,” that could be bad enough. So I usually say, if you possibly can, without losing your mind, try and stick it out through the notice period.

Kevin Pho: Dennis, thanks once again for sharing your advice and insight, and thanks again for coming back on the show.

Dennis Hursh: It’s my pleasure.