How many hours of clinical work?

• Schedule of shifts (and length of shifts)
• On-call obligations
• Is administrative time included in my total hours – or in addition to?
• Is there a cap on involuntary overtime or call time?

Medical Director obligations

• Is there a clear description of any medical director functions?
  In a hospital setting are you ultimately responsible (and liable) for particular items or are you collaborating with hospital administration (who retains ultimate responsibility)?
  • For example, accreditation or licensure survey findings, compliance matters, or personnel decisions.
  • Are your medical director duties covered under the hospital’s insurance policies for director and officer liability?
• Are medical director duties separately compensated?
  • Are time logs required?

Teaching / mentoring obligations

• Are you responsible for orientation and training of new staff in the department?
• Are you required to conduct CME programs for members of the medical staff, or periodic continuing education programs for nursing and ancillary staff?
• Are you required to serve as the collaborating or supervising physician for employer’s or hospital’s nurse practitioners or physician assistants?
  What are the collaboration/supervision requirements?
  Are you compensated for supervision of midlevel practitioners?
  Does your professional liability insurance policy cover your supervision role?

Serving on hospital committees

• Are you required to be an active member of certain committees?
  Is this an expectation of all medical staff members, or are you required to serve on committees “above and beyond” general requirements

Leadership roles in the employer organization

• Are there opportunities for formal leadership roles?
• Is there a defined pathway to partnership or ownership in the organization?

If there is a particular aspect of any job that is important to you, be sure to include it in writing – for example:

• Certain days/holidays for time off
  • What is the scheduling process and priorities for granting time off?
  • Is weekend and holiday time off distributed equitably or based on seniority?
• Is there a cap on overtime or extra shifts?
• What is included in CME benefits?
  • Paid time off for education
  • Program and tuition reimbursement
  • Travel and lodging reimbursement
  • Can annual stipends be carried over from year to year (e.g., to allow for paid attendance at a larger conference every other year)
• Compensation and benefits (see below)

• Can my site of service be changed without my consent?
• Can I chart remotely or only on site at the facility?
  • Who pays for remote IT needs and hardware/software?
• What additional support services are provided by the facility or the employer?
  • Employee assistance programs
  • Wellness programs
  • Other support services (sick child care, elder care resources, grocery delivery, transportation services, housecleaning, etc.)

• What is the process for future changes to the contract?
• Is there an annual performance review?
• Is there an annual contact review process?
• If a long-term contract, how does compensation change over time?
  • Are annual cost of living increases included?

• Contract review and revisions – highly recommended
• To provide talking points for your negotiation with business contacts (where the attorney stays in the background)
• Direct negotiation of terms with employer’s legal counsel
• Market and industry knowledge to inform your decisions
• Leverage during negotiations
• Remember that attorneys are not impacted by the emotional aspects of the employment offer - and can serve as objective advocates for your position on any given topic
• Hire an attorney who is familiar with the industry and the subject matter (attorneys specialize just like physicians do)

What services are covered by the policy?

• Are only clinical services covered?
• Are administrative and/or supervision services covered? (for example, if you delegate certain patient care to a midlevel provider or advanced practice provider, and an incident occurs, does your policy cover your potential liability related to the delegation of care and/or supervision of services?)
• Are billing and regulatory compliance matters covered?
  • If you mistakenly code a service and there is a recoupment by the payor, or a payor investigation, or a Medicare/Medicaid audit or investigation – are these costs covered by your insurance policy?
    Expect a high deductible and/or payment limits on this type of coverage
    Are only actual damages covered (such as amounts paid back to a payor), or is the cost of investigation (including forensic accounting) covered?
• Are HIPAA and confidentiality breach matters covered?
  • Does your employer carry cyber-liability coverage for any electronic medical record or billing records system?
• You should assume that any employer-provided insurance will only cover acts and omissions that occur in the course of employment
  • If you moonlight or provide other services outside of your primary employment, you will need to either hold a separate policy, or negotiate with your employer to add a rider to the employer’s policy for these additional “outside” services. A rider, if available, may be a more economical option.
  • Sample employment contract language: Employer shall make provisions for professional malpractice insurance coverage to cover the acts of Employer and the Provider. Such malpractice coverage shall be effective as of the first date when Provider provides professional services on behalf of Employer, and shall cover the professional services of Provider for which Provider is engaged pursuant to this Agreement. Employer does not provide malpractice coverage for the acts or omissions of Provider related to services rendered by Provider outside the scope of employment by Employer..

How are the coverage limits determined? (such as $1,000,000 per incident and $3,000,000 in the aggregate)

• In a few states, malpractice insurance limits are set by statute
• In most states, limits are set by common industry practice
  • Insurance brokers/agents can provide information on common limits for the specialty area and geographic location to help determine what are reasonable coverage limits
• Some facilities will require that all physicians on the medical staff carry malpractice insurance with certain minimum limits
• If an employer requires physicians to carry their own insurance policies, the employer may have requirements for minimum limits

Who is paying for the malpractice insurance policy?

• Typically, the employer will pay for the policy, or add you as an additional covered person under the employer’s insurance policy for the employer company itself
• If purchasing the policy on your own, check with your state medical association for possible options for policies
• If purchasing the policy on your own, will your employer provide a stipend to cover your premiums as additional compensation?
• If your employer is a state or federal agency (such as a state-owned hospital or federally qualified health center), individual malpractice insurance may not be required, as acts or omissions in the course of employment may be covered by the Federal Tort Claims Act or state tort claims act. Confirm this with your employer.

Occurrence based policies
An “occurrence based” policy means that any malpractice claims are covered that “occurred” during the policy period, regardless of when the claim is filed.

• Occurrence based policies usually have a higher premium because the coverage extends indefinitely.
• Example: If the policy is in effect from 2020 through 2022, any claims filed related to an event that occurred in that time frame is covered – regardless of when the claim is filed (e.g., 2026).

Claims made policies
A “claims made” policy means that any malpractice claims are covered if the claim is filed (made) during the time that the insurance policy is in effect.

• Claims made policies usually have a lower premium
• Example: If the policy is in effect from 2020 through 2022, any claims filed in that time period are covered, regardless of whether the event occurred in that time period or before that time period. But if an event occurred in 2021 and the claim is not filed until 2023, the claims made policy will not cover that event.
• Because claims may be filed after the policy term expires, “tail coverage” is needed.

“Tail coverage” is the common name for an “extended reporting period endorsement”. This is a rider or additional coverage that is purchased to cover claims filed under a claims made policy when the claim is filed after the policy period.

• Example: Assume the policy is in effect from 2020 through 2022, and an event occurs in 2021. The patient files a malpractice claim in 2023. The tail coverage policy covers the event because the claims made policy itself would not.

If your employer provides malpractice insurance, read the employment contract carefully as to who pays for tail coverage after termination of employment.

• Many employers pay for tail coverage
• Some employers may stipulate who pays for tail coverage based on how or when employment ends
  • For example, if you are terminated with cause by the employer, the cost of tail coverage may be yours to pay, but if the employer terminates your employment without cause, the employer pays for the tail coverage.
  • For example, if you are employed for a short period of time, the employer may require you to pay for tail coverage.
  • Sample employment contract language: In the event the professional malpractice insurance coverage during all or a portion of Provider’s period of employment with Employer has been “claims-made” insurance, then following termination of Provider’s employment, Employer will obtain at its expense an extended coverage policy (“tail coverage”) for Provider to cover those acts or omissions of Provider that occurred during the period of, and in the course of, employment by Employer hereunder. Notwithstanding the above, in the event employment is terminated before Provider completes one full year of employment, Employer shall not be required to provide an extended coverage policy at its expense, and such expense shall be that of Provider.

• If your employer-provided malpractice insurance is a claims made policy, you will either need tail insurance to cover later-filed claims, or “nose coverage” insurance
• Nose coverage is an endorsement to a new insurance policy to cover prior acts that occurred before the new claims made policy is in effect
• Nose coverage may be provided by a future employer as additional compensation to the new employee (or the new employer may provide a stipend for the employee’s purchase of tail coverage to cover acts in the prior employment relationship)

Whether purchasing your own policy, or if covered by an employer’s policy of insurance, be aware of additional terms in the policy, such as:

• Selection of counsel - typically the insurer selects legal counsel to defend any claims. If you want to use your own attorney, that is typically at your cost.
  • Selection of counsel may be a negotiated terms in the insurance policy. For example, you may be able to select your own counsel, with a limit on legal fees that are paid by the insurer
• Settlement consent – is the insurer allowed to settle a claim without your consent?
  • This may also be negotiated when purchasing an insurance policy
  • Typically, the insurer has the right to settle (because the insurer is paying for the defense of the claim), but the policy may provide that the insurer cannot admit “fault” on your behalf in any settlement

What can the employer protect?

• The employer of a physician can protect the “business” of the employer – which may include patient relationships and service relationships (such as the relationship between a physician group and a hospital)
• The employer of a physician may also protect its “investment” in the employed physician. The physician gains a reputational benefit by being associated with a particular group, and gains experience that makes the physician more valuable to the next employer – an employer also wants to protect these “investments” by not having the physician practice in close proximity to the employer’s business

Emergency physicians - special considerations

• Without a private office practice and established ongoing patients, an employer of emergency physicians does not have the same protectable interest in a specific patient population as seen with other physician groups (e.g., pediatric group, orthopedic group, etc.)
• Patients don’t typically choose to go to a particular ED based on the physician group serving that ED
• Therefore, unless the employer of emergency physicians also provides services other than in an ED, there may be a limited protectable interest related to patients
• Competing hospitals in a particular geographic area however have a protectable interest in not wanting to share treatment protocols, physician experience, administrative practices and the emergency physicians themselves between competing hospitals
• Most hospital service contracts will require the emergency room group practice to ensure that its employed physicians do not practice at competing facilities
• Those requirements are then carried forward into the physician’s employment agreement

What if the employer is no longer in business?

• If the employer is no longer in business, the employer has no protectable interest unless a new company immediately takes over the business and assumes the employment contracts/non-compete agreements of the defunct employer
• If there is no successor to the business, generally speaking, any non-compete covenants likely would no longer be enforceable
• Non-compete provisions should be carefully reviewed in case there is another beneficiary of the covenant – for example, if a hospital served by an emergency group is a designated beneficiary of the covenant, the hospital may have the right to enforce the non-compete for its own protection

Sample employment agreement language:

Provider hereby agrees that, during the term of this Agreement and for one year after the termination of this Agreement, Provider will not, for or on behalf of any person or entity other than Employer - directly or indirectly, as an employee, partner, stockholder, consultant, contractor or otherwise - establish, operate, provide or participate in the business of rendering professional healthcare services at any medical office, clinic, outpatient and/or ambulatory treatment center or diagnostic facility or hospital anywhere within the Prohibited Territory, where such healthcare services are similar to those furnished by Employer and its providers.

• This is a broad covenant that essentially prohibits all medical practice in the designated territory while employed and for a year after employment ends

Provider hereby agrees that, during the term of this Agreement and for one year after the termination of this Agreement, Provider will not, for or on behalf of any person or entity other than Employer - directly or indirectly, as an employee, partner, stockholder, consultant, contractor or otherwise - establish, operate, provide or participate in the business of rendering professional healthcare services at any hospital or other health care facility where (a) Provider rendered services within the last two years; or (b) Employer has a contract to provide healthcare services at such hospital or facility.

• Clause (a) is a more narrow covenant that prohibits the physician from working at (or for) clients/facilities of the employer group – but limited to those clients/facilities where the physician actually rendered services in the recent past
• If clause (b) is included, then the physician cannot work at any facility where the employer group has a contract - and this could be very broad.
  • If the covenant is too broad and therefore unreasonable, it may not be enforceable
  • Specific contract language should be reviewed by an attorney

Non-compete covenants should include a specified territory (that is related to its protectable interest)

• A territory may be defined by geography (e.g., mileage radius)
• A territory may be defined based on the facilities served by the employer (e.g., using the same territory where the contracted hospital draws its patients from)
• Some contracts may use cascading terms in the event that a court determines a broad area as being unreasonable and unenforceable. In that way, if the non-compete is challenged in court by the physician, there is a fallback position that the court may still enforce

Sample contact language:

For purposes of this Agreement, the term “Prohibited Territory” shall be defined as the largest area which is deemed of reasonable scope by a court of competent jurisdiction, being the greatest of: (i) anywhere within thirty (30) miles of any Hospital or facility where Provider furnished services for Employer during the two years prior to termination of this Agreement; (ii) anywhere within twenty (20) miles of any Hospital or facility is located where Provider furnished services for Employer during the two years prior to termination of this Agreement; or (iii) anywhere within any county where any Hospital or facility is located where Provider furnished services for Employer during the two years prior to termination of this Agreement.

Non-compete covenants should be for a reasonable duration after employment ends

• A one- to two-year post-employment covenant is most common
• If the employee is also an owner in the group practice, the covenant may be of longer duration
• If a group practice is purchased by another entity, the selling physicians will likely have a longer and broader restrictive covenant based on the receipt of sale proceeds from the practice sale

Current roles/positions (e.g., moonlighting)

• Does your restrictive covenant allow for non-competitive moonlighting?
• If you want to practice at other locations, restrictive covenant waivers (for specific locations) should be included in writing in your employment agreement
• Including the waiver in writing avoids future disputes on what was agreed by the parties

Waivers based on how/when the contract ends

• Is the non-compete waived if you terminate the agreement for cause?
• Is the non-compete waived if the employer terminates the agreement without cause?
• Is the non-compete waived if the agreement is terminated by either party within the first year (the honeymoon period)?

Is there a buyout option to continue to practice in the geographic area or for contracted facilities after employment ends?

• Buy-out options may be explicitly provided in the contract
• Buy-out options may be negotiated during the contract termination process
• New employers may be willing to pay the buy-out amount in order to hire the physician that they want
  • New employers may pay a “recruitment bonus” that can be used for the buy-out
  • New employers may provide a loan to the physician that can be used for the buy-out payment
    • Such loans are typically forgiven over time if the physician remains employed with the new employer for a period of time

• Certain states prohibit or restrict physician non-competes
• Review state laws that may assist you in getting out of a restrictive covenant

• Does your non-compete require that you pay the employer’s attorney fees if your legal challenge to the contract is not successful?
  • Be aware of potential hidden costs

• For non-hospital based physicians who have ongoing patient relationships, non-solicitation provisions will typically prohibit the physician from treating patients that the physician treated in the last year or two.
• For hospital based physicians (such as emergency physicians), it is rare for an employment agreement to include a patient non-solicitation provision.

• Most employment agreements will include a non-solicitation provision which prohibits the physician from attempting to take staff and colleagues to the physician’s new place of employment
• Sample contract language: Provider hereby agrees that during the term of this Agreement and for a period of two (2) years after termination of this Agreement, regardless of the reason for termination, Provider shall not induce, attempt to induce or aid others in inducing or attempting to induce any physician, shareholder, employee or independent contractor of Employer to accept employment or affiliation with another person, entity or facility that provides emergency medical services, occupational medicine services, or urgent care services.

Many employment agreements will include a non-solicitation provision (or non-interference provision) which prohibits the physician from encouraging vendors or clients of the employer to terminate their business relationship with the employer.

Emergency medicine physicians are typically compensated on an hourly or shift basis, as the physician has no control over productivity or how busy the ED will be.

• Does your employment agreement include additional compensation (different rates) for overtime, shift differentials, weekend or holiday pay
• Does the base rate of pay reflect market factors, such as difficulty in recruiting physicians to the particular area or physician shortages?
• Does the base rate of pay take into account your experience, seniority, board certification, specialty skills, etc.?
  • Physicians are not widgets and different rates of pay are appropriate even for physicians in the same group
• Disaster/combat pay
  • Is there a bonus program related to community disasters that may overwhelm the ED?

Do you have the right to review or audit third party billing claims related to services you provided?

• Do you have access to internal billing and collection reports related to services you provide?
• Does the contract include protections from personal liability related to billing claims submitted to third party payors by your employer

Compensation reimbursement or recoupment

• Does the employer or facility have the right to recoup monies from you related to insufficient documentation that resulted in a payor recoupment action for the facility or employer?
• Does the employer have the right to recoup monies if you miss a shift and they have to pay overtime or bonus pay to another physician to replace you?

If your employer has a contracted management company, what authority does the management company have with regard to your compensation and/or employer bonus programs related to your personal services?

• Can the management company change compensation or bonus programs irrespective of the financial performance of the group practice you work for? In other words, can the management company shift revenue from one group practice to another or take a larger management fee to the detriment of physician compensation in one group to offset management company losses from another group?
• Are you allowed access to financial information or will you receive financial reports from your employer on a periodic basis?
• Are you allowed access to copies of the management agreement?

Signing bonuses

• If you have a signing bonus, what if any are the repayment terms?
• Signing bonuses or recruitment bonuses are often tied to a period of employment – if the physician is not employed for a certain period of time, the physician has to repay the bonus
• Sometimes that repayment is only based on the physician terminating the agreement – so that if the employer terminates the agreement, the bonus is not forfeited or required to be repaid
• Sample contract language: A one-time signing bonus of __________ Thousand Dollars ($___________) will be paid within 10 days of signing this Agreement. Should Physician terminate the Agreement without cause and leave the employment of the Group prior to the completion of the second year of the contract, Physician agrees to pay back to Group a prorated amount. This pro-rated amount will be a simple calculation of the number of months remaining to end of the second year of the contract multiplied by ______________ Dollars ($_________). The sum is to be paid to the Group at least 10 days prior to Physician’s last day of employment.

Retention bonuses

• Does your employment agreement provide for any retention/longevity bonus?
• Some employers will “backload” annual compensation so that a bonus is paid at the end of a year if the physician remains employed

Quality and patient satisfaction bonuses

• wRVU productivity bonuses are not common for emergency physicians
• Bonuses based on quality metrics are more common
  What are the quality metrics that your hospital or group is measuring?
  Examples include:
  • Door to Needle Time for administration of intravenous tPA for acute ischemic stroke patients
  • Door to Needle Time for administration of antibiotics for sepsis patients
  • Volume of patients who leave the ED without being seen
  • Patient flow indicators
  • Other quality of care indicators
• What are the cost containment metrics that your hospital or group is measuring?
• Does your group or hospital provide bonuses (or reductions in compensation) based on patient satisfaction with the ED experience?

• Benefit plans are an important consideration when reviewing or negotiating an offer of employment, as benefits can easily equate to more than 30 percent of total compensation.
• If not participating in certain benefit plans of the employer, this is an opportunity to potentially negotiate a higher base salary, or a monthly stipend to use for plans you purchase independently.
• You should carefully review the benefit plans including:
  • Vacation / PTO
  • Family and medical leave
  • Health insurance
  • Disability insurance
  • Retirement plans (with special attention to vesting, matching contributions and portability after employment ends)
• Continuing education
  • Does your employer provide an annual stipend for continuing education?
    • Can you use these monies for journal subscriptions in addition to CME?
    • If the stipend amount is not used at the end of the year, can it be carried forward?
    • Is the stipend restricted to only CME registration costs, or can it be used for travel and lodging for CME programs?

• Does your employment agreement allow for outside professional activities that do not interfere with your job duties?
• Are you required to obtain employer consent before engaging in outside activities?
• If you engage in outside activities, are you allowed to retain the compensation?
• Common outside activities:
  • Teaching
  • Guest lectures / CME
  • Expert witness
  • Team physician during sporting events

Does your employment contract provide for periodic performance reviews and clear pathways to ownership in the group?

• Are the notice provisions sufficient to allow you to secure new employment without an excessive break in compensation? For example, 30 days is a very short notice period for a physician.
• Does the employment agreement provide that in lieu of notice, the employer can pay you off early? If so, do your benefits continue during that notice period?
• Does the employment agreement include a list of events that are grounds for immediate termination for cause (and without notice)?
  • Is the list of events reasonable? Reasonable events for immediate termination could include:
    • Loss of licensure
    • Loss of hospital privileges (not including a temporary suspension)
    • Revocation of DEA registration
    • Felony conviction
    • Exclusion from participation in Medicare or Medicaid
    • Inability to obtain malpractice insurance
    • Inability to be credentialed with payors
    • Confidentiality breaches
    • Harassment of staff or patients
    • Material failures to follow employment policies
  • Certain other events may provide for a “cure period” rather than immediate termination – for example:
    • Suspension of hospital privileges. If hospital privileges are suspended, it would be reasonable for the employer to suspend the physician without pay while the physician exhausts his/her due process rights with the hospital, with termination of employment reserved for a loss of privileges as a final action of the hospital.
    • Suspension of medical license pending investigation. If the physician’s medical license is suspended, it would be reasonable for the employer to suspend the physician without pay while the physician exhausts his/her due process rights with the licensing board, with termination of employment reserved for a loss of license (or long term suspension or other restrictions) as a final action of the licensing board.

• Does the employment agreement include a process for notice and the ability to cure other contract breaches before termination?
  • For example - failure to follow an employer or hospital policy
• Does the employer have a policy/process for addressing company concerns that are not a contract breach?

• If hospital privileges are suspended or terminated, does your employment contract allow you to exhaust due process rights under the hospital’s medical staff bylaws? If legal counsel is required, will your employer/group practice pay for that representation?
• If employment is terminated with a group practice that provides emergency services to a hospital, the physician typically is required to resign his/her medical staff privileges, or privileges are automatically terminated, so that the physician cannot compete with the group practice’s hospital contract.
• Loss of privileges not related to matters of professional competence or conduct is not reportable to the National Practitioner Data Bank.