MDNews - Minnesota

T HE MEDICAL PROFESSION is evolving rapidly, with significant legislation governing patient privacy (HIPAA) and insurance coverage and practice (the ACA) influencing how physicians and medical health professionals, as well as their employers, operate on a day-to-day basis. The old model of independent practitioners forming clinical practices and offering services to hospitals on a fee-for- service basis with significant autonomy is evolving toward more employer-employee arrangements with greater oversight of all clinical services by hospital or clinical administration. Moreover, the provision of care to patients is now generally subject to "productivity" measures in these relationships, rewarding proactive medical intervention that, in certain instances, can devalue the importance of preventive care. Physicians in every practice area need sophisticated legal advice to assist them in navigating these changes and ensuring that their workplace rights are fully protected. MD News is committed to staying abreast of all of these legal developments. This forum is intended to highlight legal issues and opportuni- ties commonly faced by physicians on an ongoing basis. This introductory article identifies two legal issues that often arise in establishing and enforcing employment contracts for physicians. Clear and Concise Employment Contracts Whether they are new or experienced practitioners, physi- cians enter into contractual employment agreements with employers as do other executive-level employees. There are a few considerations as you review or update your employment contract. First, it is critically important for these contracts to be very clear — for both sides — on expectations, how performance is to be measured and evaluated, when and how a potential termination event can occur, what benefits are to be provided in that unfortunate circumstance, and what if any post-termination restrictive covenants can be enforced. Clarity at the outset of these relationships benefits both sides and reduces the risk that difficult disputes could arise during the employment relationship. Performance-based Issues When performance-based issues arise, the process to follow in evaluating clinical competence — and invoking the peer review process if necessary — should be crystal clear and largely self-executing. Moreover, the employment agreement should not be silent on this topic, as this will result in a default to the hospital bylaws about credentialing/ privileging/peer review policies, often with difficult and unintended consequences for the physician. Without these rights specified in the employment agreement, Minnesota courts have held that staff bylaws do not constitute enforceable contracts with physicians, leaving the administration free to amend these bylaws or deviate from them without legal contractual recourse to the affected physician. (For more detail, see Medical Staff of Avera Marshall Regional Medical Center v. Avera Marshall, 836 N.W.2d 549 [Minn. Ct. App. July 22, 2013].) Finally, even without contractual protections in place, the failure to adequately follow the procedures specified in the peer review process — and ensure that reviewers are fully independent — can lead to a malice finding, exposing the offending hospital to both liability and injunctive relief. (For further information, see In re: Peer Review Action, 749 N.W.2d 822 [Minn. Ct. App. June 3, 2008].) Future articles will explore in greater detail these and myriad other legal issues affecting medical professionals. I intend this forum to be as interactive as possible and welcome input on ideas for future topics from the readers of MD News. Lawrence P. Schaefer i s the O wner and P resident of Schaefer Halleen, LLC. As one of the most recognized plain- tif f 's lawyers nationwide, Schaefer has earned the respect of judges and other lawyers for his thorough and aggressive client advocacy in negotiation and litigation. He concentrates his practice on representing medical professionals and other employees who are injured through employment discrimina- tion practices. You can reach him directly at 612-294-2601 or lschaefer@schaeferhalleen.com. ■ Legal Considerations for Physicians By Lawrence P. Schaefer, Owner and President, Schaefer Halleen, LLC ++++++++++++++++++ +++ + +++ + ++++++++++++++++++ LEGAL EASE M D N E W S . CO M ■ MD NEWS Minnesota | 1 5

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