So are you are already an attending physician with a physician employment agreement. Perhaps you are thinking about a change. If so, you need to understand your current obligations before you enter into a new agreement and start a transition. Perhaps you have a question or problem with your existing practice. Either way, you need a path with solutions without getting entangled in unnecessary legal conflicts or expense. Mr. Gunn has personally handled over 500 Physician employment contracts, many of which have involved transition related issues. Transitions generally involve a two-step process:

Step 1: Understand your existing physician employment contract obligations. At a minimum, this includes:

a) What are your post-employment covenants and geographic restrictions? Do they overlap with the new practice? If so, are the restrictions enforceable?

The answer depends on the details. When a Restrictive Covenant is supported by adequate consideration, protects a legitimate business interest, and is reasonable in terms of area and time, it is likely enforceable. However, some exceptions do exist. Some practices over-reach and risk having a restriction declared unenforceable. A court may refuse to enforce an overbroad or overreaching physician Restrictive Covenant entirely or may, in some instances, redraw the terms to make restrictions reasonable. Enforcement may involve an injunctive court order to cease practice, an award of monetary damages or both. Where a practice over-reaches, there is sometimes a potential to negotiate a reasonable compromise.

b) How will your existing malpractice liability insurance coverage be preserved? Is your coverage claims made or occurrence?

Where there is true occurrence based coverage, there is no need to purchase expensive tail coverage. However, if your coverage is of the claims made variety then you must determine whether tail coverage must be purchased or whether you can get ongoing malpractice coverage with a retroactive date to the start of employment. If the purchase of tail is required, who pays? Even where the physician is required to pay for tail coverage, alternatives can sometimes be negotiated.

c) What are your non-solicitation restrictions concerning patients, employees, and referral sources? Do they overlap with the new practice?

Are you precluded from soliciting patients or referral sources? Are you precluded from soliciting or hiring employees of the practice? How about the records?

d) How much advance notice and in what form are you required to give that notice?

Commonly a minimum amount of notice is required and may be tied to some part of your compensation or bonus.

e) Are there other special circumstances or provisions that need to be addressed?

Fully understanding all of these and the other important issues from a legal standpoint is critical in order to avoid complicated and expensive legal disputes.

Step 2: Analyze and understand the new contract to make sure the new medical contract is fair and reasonable. Also, does it conflict with your existing medical contract?

Do I Really Need a Physician Employment Contract Attorney and What Can He/she Do?

First, physicians must recognize the difference between merely understanding the words and phrases contained in a physician employment agreement and understanding all of the practical implications of those same words. An experienced medical contract review attorney can explain terms and the practical implications, which sometimes do not need negotiation. Other times, there may be unfair or unenforceable terms and/or special considerations which call for creative solutions. Second, a medical contract attorney experienced with physician employment contract review will be able to formulate creative solutions to difficult problems. A medical contract attorney experienced with physician employment contract review can also suggest helpful negotiation points and strategies. Some physicians may want to handle negotiations directly. Having an experienced medical contract review attorney guiding you can help avoid future problems and unnecessary and expensive disputes. Some physicians may wish to have a lawyer handle physician employment contract agreement negotiations directly. Each and every situation is different. A medical contract review attorney should be able to provide the level of assistance that fits your particular situation. Experience counts. Mr. Gunn has personally handled more than 500 physician employment contracts. Some physician employment contracts provide that in the event of litigation, the prevailing party is entitled to recover (in addition to all other remedies) attorney fees and costs. While sometimes tending to promote negotiated solutions, such clauses may also be used as an oppressive weapon, especially if the physician employment agreement is one sided. All-out litigation is generally expensive, time consuming, stressful and risky. As a result, it is almost always better to find a negotiated solution rather than proceed to litigation or arbitration. But to reach such solutions, you need someone with experience. An experienced medical contract attorney can often craft and negotiate agreements and solutions that will avoid the time, trouble and expense of litigation.

Problem Solving and Disputes

Physician employment contract issues can be thorny and contentious. The first step is to clearly understand the relative rights, responsibilities and obligations of the parties to a physician employment agreement. Problem solving does NOT always mean litigation or arbitration. When all is said and done, creative negotiated solutions are frequently less expensive and more palatable then all-out litigation. You should consult with a medical contract attorney interested in and experienced with formulating creative, negotiated, non-litigation medical contract solutions.