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Ericka L. Adler, JD, LLM has practiced in the area of regulatory and transactional healthcare law for more than 20 years. She represents physicians and other healthcare providers across the country in their day-to-day legal needs, including contract negotiations, sale transactions, and complex joint ventures. She also works with providers on a wide variety of compliance issues such as Stark Law, Anti-Kickback Statute, and HIPAA. Ericka has been writing for Physicians Practice since 2011.
If you're drafting up provisions in a physician contract dictating his conduct, here are five things to consider.
A common trend in physician contracts is the inclusion of a provision that allows a physician to be terminated for displaying behavior that is not "courteous," "does not encourage the harmonious environment of the employer" or is "rude or disrespectful of others." To be honest, it's not always entirely clear what this language means. Is this intended for a doctor who talks loudly or raises his voice when upset? Is this for a provider who regularly berates the staff? Should this apply to a physician with a gruff demeanor? Would not everyone fall into this category at some point?
While behavioral provisions can have an effective role in controlling physician conduct, they must be properly written to explain what is intended, to allow for correction of improper conduct and to evaluate behavior objectively. Here are some issues to consider in both drafting and reviewing such language:
1. Subjective behavior provisions should always provide for the employer to explore concerns and allegations using a "reasonable and good faith approach." Like any other allegation concerning an employee, there should be an investigation and doc0umentation of wrongdoing. This is especially important since I have seen such provisions misused by non-physician staff to create issues for a physician they may not favor. I have also seen similar language misused against a provider by other physicians due to professional jealousy or to forward a personal agenda. Because termination for a behavioral issue can have a long-term impact on a provider's career, it is important that these provisions, and their application, be handled with care.
2. I like to recommend that any behavioral provision either describe the process followed by the employer if a concern/allegation is raised, or reference the relevant policy where the process can be found. Using such an approach will minimize the need to interact with opposing counsel on the provision language and likely offer a better sense of a fair employer to the incoming provider. Of course, following the stated process also minimizes the risk of the employer be sued for a wrongful termination.
3. Employers might also consider including language that requires a repeated pattern of behavior before taking action. No single event of a physician being rude, or raising his voice, should give rise to discipline or termination. An employer should develop the parameters they will follow for enforcement (number of complaints, frequency of complaints, events occur in front of patients, etc.). This type of language also helps to assure uniform enforcement against all providers.
4. Employers should look for opportunities to cure behavior before taking formal action. For example, can a simple and quick reassignment of personnel limit friction where two difficult personalities are creating the issue? I have often found that simple reallocation completely resolves the issue. On the other hand, sometimes a physician is just impossible for anyone to work with, in which case he must be handled appropriately. The employer might also consider whether there is a particular event/situation occurring that is leading to the behavior? A shortage of personnel, missing equipment or supplies, untrained staff, etc. can lead to outbursts which are undesirable, but explainable. Is there really an operational issue rather than a behavioral concern in this instance? There is always a story to be found whenever there is a behavior complaint, and the employer should investigate the concerns from multiple sources, rather than relying on any single relator.
5. Consider an effective mediation process for incidents of workplace disharmony before anyone looks to the employment contract. Can a class be required for a provider who has an abrasive personality or who may yell when under stress, before there are any complaints? Often there are approaches that can be considered early on to minimize the workplace distress and complaints.
This blog is not intending to cover illegal conduct (sexual harassment, discrimination, etc.) or other concerns related to physicians, such as drug or alcohol abuse, mental health issues, etc. Of course, a proper investigation of any complaint may find that there is an overlap between all of these issues in certain circumstances. Sometimes, however, people are just rude and disagreeable, hard to work with and unpleasant.
While having the ability to discipline or terminate a physician who is problematic in terms of his attitude and behavior towards others is the prerogative of the employer, there are appropriate ways of drafting provisions to be more fair and reasonable. Physicians must also be careful to locate such provisions, which are often buried in their contracts, so as to avoid any surprise and to use best efforts to conduct themselves accordingly.