Frivolous quality-based terminations of physicians are real
Lately I have seen a few instances of frivolous quality-based terminations of physicians. These terminations were clearly not really based on any rational concern with quality. The “reasons” given for termination in both instances were laughable – or would have been if a physician’s career were not on the line.
In one instance a physician serving at a rural hospital lost a family member and promptly called in to tell the hospital that a replacement would have to be found for that night’s shift. The physician called many hours before the shift was to begin. However, the physician was brusquely informed that he was subject to termination based on the quality of his practice if he didn’t show up. It is unclear if the concern about his quality of care is that he had a family, or that he cared about his family.
For years when reviewing physician employment agreements I have argued against a subjective standard (or no standard) for dismissals allegedly based on poor quality care. I traditionally gave a hypothetical example of a physician who wore a white shirt yesterday. If the administrator feels that white shirts intimidate patients, and therefore decrease the quality of care, some contracts would allow dismissal.
I always treated the “white shirt termination” as an extreme to highlight my point that language concerning termination if the employer “determines” that poor quality care is being given should be tempered. And then I spoke to a physician who was literally terminated on very similar grounds.
Can you imagine terminating a female interventional radiologist because she wore a purple flowered lead apron? Can you imagine framing that termination as based on poor quality care? It actually happened. No, there was no warning or time given to cure. She was terminated under a clause in her contract that provided that she could be terminated if the employer determined that poor quality care was an issue. Apparently, the administrator determined that the purple apron was unprofessional. And that was the end of the matter.
Protecting against frivolous quality-based terminations of physicians
The language in the physician employment agreement has to be closely examined. Although each ground of for cause termination of a physician employment agreement has to be analyzed, physicians need to be especially vigilant against a frivolous quality-based termination.
As I mentioned above, the employer should not be able to terminate you if it “determines” that your care is below standard. At a minimum, any determination should be a “good faith, reasonable” determination. This, of course, can’t prevent frivolous terminations – but it would give you grounds to dispute a termination based on the color of your lead apron.
An even better approach would be to provide a reasonable method for determining if your care is below standard. I always suggest that the physician and the employer agree upon an independent physician in the employed physician’s specialty to review the physician’s practice. The employer should pay the costs of the review.
If the review determines that the care provided by the physician is below standard, I always request a reasonable time (e.g., 60 days) for the physician to correct any issues. If the physician doesn’t correct the issues in that time, then the physician’s employment ends shortly thereafter.
Using a hearing to prevent frivolous quality-based terminations of physicians may not ideal
Many physicians ask why they should not be entitled to a full hearing if they are accused of poor quality care. There are three main reasons I usually counsel against that.
First, a hearing will raise the awareness of your colleagues about the accusation. Even if you win the hearing, the word will be out.
Secondly, you would be well advised to hire an attorney to represent you, and that could be expensive – especially if the attorney recommends that you hire experts to bolster your case.
Finally, there is a concern about reporting to the National Practitioner Data Base (“NPDB”). If you lose the hearing and are terminated, the employer will be required to report this termination to the NPDB. That report will haunt you for the rest of your professional career.
Note that this discussion assumes your employment is being terminated based upon an alleged quality-based issue. If a hospital moves to limit or remove your privileges, a fair hearing is required pursuant to federal law, and there is no ability to address that issue in your employment agreement.
If you have a physician employment agreement you would like us to review, you can start your review here. We can also provide a free consultation to talk about how we can help. You may also find my book on physician employment agreements helpful.
