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20 Tips Plus a Bonus for Physicians Negotiating Their Own Employment Contracts

4 Indest-2009-3By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

At The Health Law Firm, we often receive calls from physicians and health professionals about reviewing and negotiating contracts, preparing contracts, helping employers and employees enforce contracts, voiding contracts, getting out of contracts and litigating various contract provisions. Physicians and other health professionals should understand the common language and terms found in employment contracts for professionals so they can recognize mistakes commonly when negotiating them.

Our comments here are meant to provide general tips we have learned from our experience. However, please remember, every situation is different and there are exceptions to every rule. I have added a “bonus tip” here, because of recent problems our clients have had.

“Bonus Tip;” The Prime Directive.

My primary tip, and I would say it is the most important, is to know the persons and parties with whom you are contracting and be sure the contract contains that information. Make sure you know the complete name and residence address of the principal person with whom you are dealing. Then be sure you know the complete information on any business entity with which you are dealing, including state of incorporation (or organization), shareholders (or “owners” or members), and address of its main headquarters (principal place of business). If other business entities are the shareholders, owners or members of the entity for which you will be working, you need to find out the same information for each of them. Make sure they are all authorized to do business in your state and have the appropriate licenses that your state requires.

In Florida, any medical business that is not actually 100% owned by Florida licensed physicians or health professionals must have a Health Care Clinic license issued by the Florida Agency for Health Care Administration. Dental practices and optometry practices cannot be owned by anyone who is not licensed to practice dentistry in the state of Florida. Some unscrupulous business people attempt to skirt the law by setting up phoney or “straw man” owners that are physicians or dentists. This is illegal, a felony in many cases, so be cautious. My advice would be not to sign up with a business entity that has been created solely for the purpose of contracting with you and which has no assets. This has been a real problem, lately.

20 More Tips.

The following are a few tips for any physician who is involved in negotiating his or her own employment agreement.

1. There is no such thing as a “standard physician employment agreement.”

2. Everything is negotiable.

3. Be sure the wording of the contract represents exactly the agreement you made. If it is different or not specified, the language in the contract will govern in any future dispute.

4. Be sure that every blank in the contract is completed and filled in before you sign.

5. Be sure that every Exhibit, Addendum or Schedule referred to in the contract is completed and attached before you sign.

6. Shun “legal” advice from your peers and, especially, from the accountants and representatives of your future employer. Misinformation about legal issues abounds. Just because one court may have decided a legal issue a certain way in one case in one state does not mean a different court would not reach a different decision, even in the same state or county. Every set of facts and circumstances, every contract and every case are different.

7. Obtain and review copies of every document referred to in the agreement. These are considered part of the agreement. These may include the practice’s policies and procedures, the employee handbook, a code of conduct, sexual harassment policy, compliance agreements, etc. Keep these in a file with a copy of your contract.

8. Carefully consider clauses that allow the employer to terminate the agreement without cause on a 30 day, 60 day, 90 day or 180 day notice. With such a clause in your contract, you no longer have a one year or two year agreement. Instead, you have a 30 day, 60 day, 90 day or 180 day contract. Can you find another job and relocate in 30 days or 60 days?

9. If there is a “for cause” termination provision in the contract, be sure to include a “cure” provision. This is a provision which requires the employer to provide you written notice of any deficiency or breach and allows you a certain period of time (usually anywhere from 10 to 30 days) to cure it.

10. Ensure the contract is clear throughout that you are an employee and not an independent contractor. Employees receive far more benefits and have more protections under the law than do independent contractors. If you sign on as an independent contractor, you will be assuming many expenses and liabilities that the employer would ordinarily be required to assume.

11. A promise to make you a “partner” or “shareholder” in the practice after a certain period of time will not be enforceable unless all of the terms are specified in order for a court to enforce it. (Price, timing, percentage of ownership, method of payment of the buy-in, etc.). Think of an option to purchase a house. Unless all of the terms for a binding contract are set forth in writing and agreed to by the parties, it will not be enforceable.

12. If you sign the agreement, be prepared to honor it. Do not sign an agreement thinking that there may be certain provisions that won’t be enforceable or that you won’t be required to follow in the future. Assume that every part of the contract is enforceable.

13. Restrictive covenants (sometimes referred to as covenants not to compete) are enforceable in Florida. Although there are many exceptions and defenses that can be used to defeat or prevent the enforcement of a restrictive covenant, unless you have the money set aside to finance litigation, expect to honor it if it is in the agreement. As an employee, your negotiation strategy should be to: a) have it removed completely, or b) reduce the period of time and reduce the geographic area as low as possible. Also, it should be worded so as to only apply to the office or location in which you work and to the medical subspecialty or type of practice in which you will work.

14. Avoid assuming any obligation to pay the premium for tail coverage for professional liability (medical malpractice) insurance, especially if the employer terminates the employment. If you are not able to negotiate this away completely: a) reduce the percentage you agree to pay to 50% or have it reduced 25% for each year you are in the practice, and b) insert a provision that if you maintain the same insurance company or obtain retroactive coverage, this will be substituted for tail coverage.

15. Visit the practice, hospital and area at least three (3) times before signing. One of these visits should be without the knowledge of the potential employer when you can tour the geographic area and, perhaps, the hospitals on your own.

16. Contact any physicians you know or have met in the past who live in the area or any surrounding areas. They may be able to provide you information regarding your potential employer, hospital or city that may affect your decision.

17. Do your “due diligence” before agreeing. Ask to see actual billing and collections figures and income statements. Talk to other associates. If your compensation will be based on productivity, speak with another physician who is similarly compensated about how his/her compensation is computed. Visit any hospital, nursing home or other facility where you will have privileges or see patients. Discuss the quality of the equipment and stuff with other physicians and physicians in surrounding communities.

18. Do not buy a permanent residence (house or condominium) during your first two years of employment with a new practice in a new location. Rent or rent with an option to purchase. This will give you much more flexibility if the employment situation does not work out to your expectations.

19. If you receive a signing bonus, put it in the bank in a CD or money market to use as needed in connection with tips 14 and 15 above. This may be your personal “golden parachute” if you need to leave a bad situation.

20. Do not start working until you have a copy of the employment agreement. A draft copy if not sufficient. A copy signed by you but not by the employer is not sufficient. The most common problem we see when there is a physician employment dispute is that the employee does not have a copy of the contract that is signed by the employer.

Contact a Health Care Attorney Experienced in Negotiating and Evaluating Physician and Health Professional’s Business Transactions.

At the Health Law Firm we provide legal services for all health care providers and professionals. This includes physicians, nurses, dentists, psychologists, psychiatrists, mental health counselors, durable medical equipment suppliers (DME), medical students and interns, hospitals, ambulatory surgical centers, pain management clinics, nursing homes, and any other health care provider.

The services we provide include reviewing and negotiating contracts, preparing contracts, helping employers and employees enforce contracts, advice on setting aside or voiding contracts, litigation of contracts (in start or federal court), business transactions, professional license defense, opinion letters, representation in investigations, fair hearing defense, representation in peer review and clinical privileges hearings, litigation of restrictive covenant (covenants not to compete), Medicare and Medicaid audits, commercial litigation, and administrative hearings.

To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

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“The Health Law Firm” is a registered fictitious business name of The Health Law Firm, P.A., and Florida professional service corporation, since 1999, and is also a registered service mark. Copyright © 2017 The Health Law Firm. All rights reserved.

Judge Refuses to Dismiss Whistleblower’s False Research Data Suit Against Duke University and Two Faculty Members

4 Indest-2009-3By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

On April 27, 2017, a federal judge in North Carolina refused to dismiss a False Claims Act (FCA) lawsuit against Duke University and some of its faculty. The suit alleges that Duke knowingly falsified medical research data in order to get federal grants. According to the judge, the whistleblower in the suit had adequately stated his case against the defendants.

The case was originally filed in West Virginia but was later transferred to a federal district court in North Carolina. The full case caption is United States of America, ex rel. Joseph M. Thomas, Plaintiff, vs. Duke University, Duke University Health System, Inc., William M. Foster, Ph.D., and Erin N. Potts-Kant, U.S. Dist. Ct. Middle Dist. N.C., Case No. 1:17-cv-276.

Click here for a copy of the Amended Complaint filed on November 13, 2015.

Denied Motion For Dismissal.

In a three-page order, U.S. District Judge Catherine C. Eagles denied dismissal motions by Duke and two defendants. Judge Eagles did not elaborate on her decision beyond saying that plaintiff and whistleblower Joseph M. Thomas had brought claims upon which relief could be granted.

To read the order for this case in full, click here.

The Whistleblower Suit.

The whistleblower, Joseph Thomas, was a laboratory research analyst in the Pulmonary, Asthma and Critical Care Division of Duke University Health Systems during the alleged violations. He originally filed his complaint in the Western District of Virginia in May of 2013. He accused the defendants of violating the FCA by faking data in an effort to get money from various federal agencies, including the U.S. Environmental Protection Agency and the National Institutes of Health.

One of the defendants was a clinical research coordinator in that same division and is charged with directly manipulating the research in question. The second defendant, a research professor of medicine, was her direct supervisor.

Repercussions of Clinical Research Fraud and Misconduct.

An accusation, even if later proven to be unfounded, may unfairly tarnish the personal and professional reputation of the researcher and institution. Findings of research misconduct can result in exclusion from grants, termination of employment, and possible civil and criminal penalties. Obtaining an experienced attorney at the earliest stages of an investigation can help the researcher to avoid many pitfalls and mistakes that can harm or even give up defense opportunities the researcher may have. At the very least, legal guidance can assist in presenting the researcher’s side of the case in an effective and organized manner that does not compromise a legal defense.

Going out and retaining an aggressive trial attorney who is unfamiliar with such matters can often be counter-productive and actually lessen the chances of a researcher coming out of an investigation unscathed.

To learn more on this topic, watch our informational video blog here.

To learn how The Health Law Firm can assist if you find yourself facing accusations of research fraud or misconduct, read one of my prior blogs here.

Don’t Wait Until It’s Too Late, Contact Health Law Attorneys Experienced in Clinical Research Fraud and Misconduct.

The Health Law Firm and its attorneys have experience in representing researchers, investigators, academicians and clinicians who are the subject of clinical research fraud and misconduct. The Health Law Firm and its attorneys also have experience in representing students, employees, researchers, investigators and “whistle blowers” who report such matters including those who become the victim or reprisals and retaliation by the person against whom the report is made. Don’t wait. Obtain the advice and counsel of experienced attorneys who are familiar with such matters and can assist you before it is too late.

If you are facing research misconduct or research fraud accusations, please visit our website for more information at www.TheHealthLawFirm.com or call The Health Law Firm at (407) 331-6620 or (850) 439-1001.

Sources:

Kennedy, John. “Duke Can’t Drop Whistleblower’s False Research Data Suit.” Law360. (April 27, 2017). Web.

Hofstra, Patricia. “Research Misconduct False Claims Act Lawsuit Upheld.” Duane Morris Law Firm. (April 27, 2017). Web.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

KeyWords: Legal representation for medical research fraud, legal representation for clinical research fraud, clinical research fraud defense attorney, medical research fraud defense attorney, legal representation for allegations of clinical research fraud, legal representation for clinical research misconduct, clinical research misconduct defense attorney, legal representation for medical and clinical researcher investigation, legal counsel for falsifying research data, legal counsel for clinical trials and research, legal representation for manipulating data, whistleblower defense attorney, legal representation for whistblowers, legal counsel for whistleblower suits, whistleblower attorney, False Claims Act (FCA) defense attorney, legal representation for FCA violations, legal representation for allegations of FCA violations, health law defense attorney, reviews of The Health Law Firm attorneys, The Health Law Firm reviews
“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2017 The Health Law Firm. All rights reserved.

Rutgers University Faces Lawsuit Over Anesthesia Residency Program Head’s Alleged Sexual Harassment

4 Indest-2009-3By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

On May 8, 2017, Rutgers University was hit with a lawsuit in New Jersey state court from former and current school employees. The suit alleges that the university failed to prevent, stop and remedy sexual harassment and retaliation by the director of its anesthesia residency program. Additionally, the suit also alleges that Rutgers “fostered a harassing and discriminatory atmosphere.”

What must be remembered is that residents, interns and fellows fill dual roles. They are employees as well as “students”or graduate medical education (GME) program participants. Therefore, they have the same rights as any other hospital or institution employee.

According to the plaintiffs, they reported their claims to the university in August 2016 and provided ample evidence. Rutgers then followed with an internal probe and issued reports that the allegations were erroneously found. In the report, Rutgers stated that Dr. Jean Daniel Eloy had not violated either the state’s law against discrimination or the university’s policies on sexual harassment.

The Alleged Misconduct.

The lawsuit was filed on behalf of current Rutgers University employee Melinda Ball and former employees Rebecca Scholl and Sam Nia. The alleged misconduct occurred when all three plaintiffs were residents in the program that was overseen by Dr. Eloy.

Melinda Ball and Rebecca Scholl claim Dr. Eloy repeatedly sexually harassed them, and retaliated against them because they snubbed his sexual advances, according to the complaint. Dr. Eloy allegedly retaliated against Scholl in various ways, including falsely stating in her semi-annual review that she was “disrespectful, lazy and unprofessional,” the complaint states. Dr. Eloy also allegedly retaliated against Sam Nia, because she attempted to protect Scholl from the sexual harassment and retaliation.

Ball, Scholl and Nia have accused Rutgers of “failing to conduct an adequate investigation into plaintiffs’ complaints of discrimination, harassment and retaliation; and failing to take appropriate disciplinary action against defendant’s supervisors, managers, agents and employees who discriminated and retaliated against plaintiffs and created a hostile work environment for them,” the complaint states.

To read the complaint filed April 27 in Essex County Superior Court in full, click here.

To read a blog on a similar case of harassment, click here.

Discrimination in Gme Programs More Common than You Think.

Unfortunately, from what our clients have told us, discrimination in different forms is not uncommon in many graduate medical education programs. Although it may be sexually based, as in this case, it may also be based upon an illness or medical condition, sexual persuasion race or national origin. It is illegal to discriminate based on these grounds or even the perception of these grounds when they do not actually exist and most institutions have written policies and standards that prohibit it. Discrimination and harassment can make a residency or other learning experience intolerable and lead to poor performance and failure.

Students, residents, interns and fellows may be reluctant to report incidents of discrimination or harassment because of fears of reprisal. However, you should always report it. You are doing no favors to your self, your peers or the program itself when you fail to report it.

Contact Experienced Health Law Attorneys Representing Medical Students, Residents and Fellows.

The Health Law Firm routinely represents medical students, residents and fellows who run into difficulties and have disputes with their medical schools or programs. We also represent other health providers in investigations, regulatory matters, licensing issues, litigation, inspections and audits involving the DEA, Department of Health (DOH) and other law enforcement agencies. Its attorneys include those who are board certified by The Florida Bar in Health Law as well as licensed health professionals who are also attorneys.

To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law is an attorney with The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Avenue, Altamonte Springs, Florida 32714, Phone: (407) 331-6620.

KeyWords: Legal representation for medical students, legal representation for residents, legal representation for fellows, legal representation for disputes with medical programs and institutions, legal representation for discrimination, bullying and sexual harassment in the workplace attorneys, intentional infliction of emotional distress lawyers, academic review hearing, legal representation for physicians accused of wrongdoing, medical graduate defense attorney, defense lawyer for doctors, legal representation fro physicians, residents and intern legal representation, medical student attorney, medical resident lawyer, medical intern lawyer, civil proceeding, criminal proceeding, administrative proceeding, medical administrative hearings, administrative law, medical student legal defense counsel, medical resident lawyer, medical resident defense attorney, medical intern lawyer, medical intern attorney, The Health Law Firm reviews, reviews of The Health Law Firm attorneys

“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2017 The Health Law Firm. All rights reserved.

Accused of Irregular Behavior on the USMLE? Here’s What You Need to Know

4 Indest-2009-3By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

At The Health Law Firm, we frequently receive calls for consultations from medical students and medical school graduates who receive a letter from the National Board of Medical Examiners (NBME), concerning the United States Medical Licensing Examination (USMLE). The letter may accuse the student or medical resident of “Irregular Behavior” concerning one or more of the USMLE Step examinations. In many cases, the person receiving the letter is a graduate of a foreign medical schools who have applied through the Educational Commission for Foreign Medical Graduates (ECFMG).

Irregular behavior can consist of many different actions taken by the applicant, before, during or after taking a USMLE step exam. What you must know is that, in effect, you are being accused of cheating or a similar type of infraction.

Types of Irregular Behavior.

Examples of the types of conduct which we have seen before include:

– Attending a commercial USMLE preparation course that provides some of the actual examination questions.

– Soliciting information on the actual contents or actual questions on the examination.

– Using a smart phone during the examination.

– Talking with another person during the examination.

– Sharing information on the types of questions or cases that were on your examination with another person or on a blog over the internet.

– Leaving the test room and looking up answers in a text during the examination.

– Setting the building on fire during the examination so that you won’t have to complete the examination.

– Forging your Step Exam grade or a document containing it and providing it to your medical school or residency program.

These are just a few. For more examples, please see an article I wrote on this by clicking here.

Most Common Errors You Will Make When Accused of Irregular Behavior.

We have represented students accused of irregular behavior by consulting with them before and after USMLE or ECFMG hearings and on appealing the results. We have represented a number of examinees at the hearings held before the NBME at its headquarters in Philadelphia, Pennsylvania, and before the ECFMG, which hearings are also usually held in Philadelphia, Pennsylvania.

From our experience in such cases, the following are the most common errors made by the individual when accused by the USMLE or the ECFMG of irregular behavior:

1. Failure to retain the services of an attorney experienced with such cases immediately upon receipt of a letter from the NBME or ECFMG accusing you of irregular behavior. Take this as a formal charge accusing you of, in effect, cheating. THIS IS SERIOUS.

2. Telephoning, writing or e-mailing the NBME or ECFMG to explain “your side of the story.” Such a writing or conversation will be full of admissions that will help prove the case against you and you will not even understand this. (Please note that under U.S. law any statements you make, oral or written, can be used as evidence against you in any civil, criminal or administrative proceeding. This is not the case with statements that your attorney makes on your behalf.)

3. If you submit documents or statements to the NBME or ECFMG in support of your case, these will not be well-organized, well-labeled and in a form simple and easy to understand. In many instances, you will not even understand the legal issues you are facing or how to refute them.

4. You will fail to request or attend in person the hearing before the NBME or ECFMG Committee on Irregular Behavior or Committee on Individual Review (“The Committee”) in Philadelphia. You will mistakenly believe that a written statement and documents alone will carry the day and persuade them not to take adverse action against you.

5. You will fail to take an attorney experienced in such medical administrative hearings to represent you at The Committee hearing in Philadelphia.

6. You will not know how to properly present your evidence or present your own position to The Committee, if you do attend the hearing.

7. You will not know when or what kind of evidence (expert witness reports, statistical expert affidavits, affidavits of fact witnesses), you need to use to prove issues in your case before The Committee.

8. You will fail to understand and correctly respond to the questions that the many different Committee members (usually 12 or more) will ask you during the hearing.

9. You will fail to correctly follow all procedures in order to preserve your rights in the proceedings.

10. You will falsely believe that if you lose at The Committee hearing, it will be easy to win on appeal or somehow sue in court and prove you are right. This is almost never correct. You will have only one real chance at proving your case and this is at The Committee hearing in Philadelphia.

11. You will incorrectly believe that even if you are only suspended from taking the USMLE Step exams again for a short period of time, this will have no effect on your education or career. (Note: Your USMLE transcript will note this fact and this may prevent you from ever getting into a good residency program. See #1 above.)

Invest in Your Future Career.

You and your family have invested tens of thousands, if not hundreds of thousands of dollars, on your education so that you can become a physician. You have spent years of sacrifice and studying in order to become a physician. This is not the time to be cheap and to think that the cost of hiring an experienced legal counsel is too high. You could lose everything you and your family has invested in this. Do not be “penny wise and pound foolish.” You will need professional help if you are to get through this successfully. If you don’t care about these matters or you don’t believe this is a serious matter worthy of an investment for attorney’s fees, then go ahead and ignore this advice.

If you are not reading this until after you have lost the case and been found to have committed “irregular behavior” by the USMLE Committee on Irregular Behavior or by the ECFMG Committee,, I am sorry for you, but it is probably too late to be able to really do anything about it.

Contact Experienced Health Law Attorneys For Irregular Behavior or USMLE Issues Today.

The attorneys of The Health Law Firm provide legal representation to medical students, residents, interns and fellows in academic disputes, graduate medical education (GME) hearings, contract negotiations, license applications, board certification applications and hearings, credential hearings, and civil and administrative litigations.

To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

KeyWords: National Board of Medical Examiners (NBME), legal representation for medical students, legal representation for medical resident, Committee on Irregular Behavior (CIB) defense attorney, Committee for Individual Review (CIR) defense lawyer, legal representation for allegations of irregular behavior, United States Medical Licensing Examination (USMLE), Educational Commission for Foreign Medical Graduates (ECFMG) legal defense lawyer, USMLE defense attorney, legal representation for USMLE hearings, USMLE appeals defense attorney, health care defense lawyer, medical student attorney, medical resident lawyer, medical intern attorney, legal representation for civil proceeding, legal representation for criminal proceeding, legal representation for administrative proceeding, legal representation for medical administrative hearings, legal representation for administrative law, The Health Law Firm reviews, reviews of The Health Law Firm attorneys

“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2017 The Health Law Firm. All rights reserved.