The Written Analysis of a Physician Employment Agreement
The purpose of this post isn’t to try to convince you to have your physician employment agreement reviewed by a physicians’ lawyer. I’m assuming that you already figured out the value of having your agreement reviewed by a competent physicians lawyer, and have gotten the comments back. If you haven’t decided whether or not to get your physician employment agreement reviewed, then there is no sense reading this until you’ve made the correct decision.
Get the Maximum Benefit from the Review of Your Physician Employment Agreement
Once you have received a written analysis of the legal terms and/or the compensation terms, it’s important that you maximize the value of this analysis. Too many physicians carefully read the analysis, decide what are the “important points” and summarize those points to their prospective employer. Don’t do that!
The reason you had the agreement reviewed in the first place is that you didn’t feel you were the person best able to protect your interests. You were right – the lawyer is still the best person for that job.
If you parse through the lawyer’s review of the physician employment agreement and pull out what you think is important to summarize to your prospective employer, you have automatically discounted the lawyer’s advice on every other item. You have also lost “plausible deniability” (since it is now you, rather than the lawyer, who is requesting changes). Perhaps more importantly, you have taken many negotiating chips off the table.
Let the Lawyer be the Bad Guy
If you hand over the lawyer’s analysis, it is the lawyer, not you, asking for these points. I’ve rarely seen a situation where an employer was offended by any requests, but I think it is still easier for you to maintain a positive relationship with the employer if you simply say something to the effect that “I had a lawyer look at the agreement, and here is what the lawyer came up with”.
The lawyer isn’t in the room, and so can’t be brow-beaten with any comments designed to make you sign the “standard agreement“. Hopefully, the lawyer for the employer will look over the agreement and recognize the validity of many of the issues raised. At any rate, the comments aren’t coming from you, they are coming from the lawyer.
Bargaining Chips on Your Physician Employment Agreement
Try to put yourself in the employer’s shoes for a moment. Suppose you tell your contact that you have just four major points you’d like fixed, and he or she gives on two of them. From their perspective, they “met you half way”. You start looking unreasonable if you begin insisting that everything has to be the way you want it.
On the other hand, suppose you gave the employer contact a letter with 30 issues raised by the attorney, although you only feel four of them are “deal-breakers”. In that case, you might give up 26 points, and stand fast on just four of them. That way, there is a certain amount of psychological pressure for the employer to negotiate on those four points.
Perhaps more importantly, those points you felt were “not important” can come back to bite you some day, and having as many of them as possible addressed will definitely make for a better physician employment agreement for you.
So pick a physicians’ lawyer you can trust, and pass that lawyer’s comments on without editorializing. That’s the best way to maximize the value of the review of your agreement.
Why Did My Physician's Lawyer Make These Comments?
One common comment in physician contract reviews is a request that the word “reasonable” or “reasonably” be inserted. This request allows room to argue about a given decision. For example, a physician employment agreement may provide that the physician will be assigned work locations in the discretion of the employer. If that clause provided that assignments could be made in the reasonable discretion of the employer, an assignment 50 miles from your office could be disputed. Without the magical “R” word, the employer would be completely within its rights to assign the physician anywhere.
In other instances, the comments are likely to be an an attempt to provide clarity, to protect the physician. If a clause can be read various ways, the employer will likely take the reading most favorable to it when interpreting the physician employment agreement.
The comments may also be made to provide a point that is important to the physician (e.g., assignment of block time for surgeons) that isn’t addressed in the agreement.
Finally, some comments are made to address inequities. For example, if the physician is required to give 180 days’ notice of without cause termination, the employer should not be permitted to terminate the agreement without cause on 60 days’ notice.