Lately, I have seen a few instances where physicians have been tricked by a term in their physician employment agreement that clearly does not mean what the physician thinks it means.
The most recent example came when I was negotiating a physician employment agreement, and the physician suggested verbiage concerning her scheduling. The physician suggested that we ask for language that the employer would develop a clinical schedule “after consultation with Physician.” This language was apparently in a prior agreement she had signed.
The physician obviously felt that she would be calling the shots if this language were utilized. These feelings are understandable. After all, when a physician performs a “consultation” the physician and the patient interact, with the goal of obtaining a diagnosis, and developing a treatment plan (course of action). Although the input of the patient is required and encouraged, in a medical consultation the physician is unquestionably in charge.
But physicians often fail to realize that a “consultation” is a medical term of art. In my line of work reviewing and negotiating physician employment agreements, I don’t often get to quote the great philosophers of our time, but no less an intellectual powerhouse than the legendary Led Zeppelin has pointed out that “sometimes words have two meanings.”
Outside of the medical realm (and an employment agreement, no matter who the parties may be, is outside of the medical realm) a consultation just means a discussion. Had we used the physician’s suggested language, I can see the following discussion occurring in the future:
- Employer: Good morning, Doctor. I asked for this meeting so we can discuss your schedule.
- Physician: OK.
- Employer: I’m sure you heard that we purchased a small hospital about 50 miles away.
- Physician: Yup.
- Employer: I want you to drive out there every Tuesday.
- Physician: What? You must be kidding me. You know I am paid based on production. If I spend a day a week with very few patients trying to build a practice out in the sticks, that will hammer my income.
- Employer: Yup.
- Physician: You can’t do that!
- Employer: Read your contract, Doctor. You start next Tuesday.
The employer in this situation is absolutely within its rights. As required by the contract language, there was a consultation with the physician prior to a change in the schedule.
That is why I always attempt to change provisions requiring consultation so that they require mutual agreement between the physician and the employer.
Physicians often complain about “legalese” in their agreements. But sometimes they can be tricked by the plain English provisions as well. It is wise to have a trained attorney review any employment agreement, to avoid nasty surprises.
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 found on YouTube and LinkedIn.
Dennis is a frequent lecturer on physician contracts to residency and fellowship programs and has spoken at events sponsored by numerous health systems and physician organizations, including the American Osteopathic Association, the White Coat Investor, the American College of Rheumatology, the American Health Law Association, and the American Podiatry Association.
Dennis has authored several published articles on physician contractual matters on forums such as KevinMD and Medscape. He is also the author of The Final Hurdle – A Physician’s Guide to Negotiating a Fair Employment Agreement, which is considered the go-to resource on physician contract negotiation.
