By Christopher E. Brown, J.D., The Health Law Firm, and George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law
This blog is the eighth in a series intended to provide a review of the basics of contracting for physicians and health professionals, primarily by discussing employment agreements. We will highlight many of the common provisions found in employment contracts, along with many of the mistakes and pitfalls that we see in our day-to-day practice.
By the end of the series it is our hope that physicians, nurse practitioners and other health professionals will understand the common language and terms found in employment contracts for professionals so they can recognize mistakes commonly made when negotiating them. We hope to help make both employers and employees more knowledgeable about employment contracts so they can avoid potential problem areas and legal entanglements.
Our comments here are meant to provide general rules we have learned from our experience. However, please remember, every situation is different and there are exceptions to every rule.
Tip 18 - Negotiate Reasonable Access to Patient Records.
Most employment agreements provide that any patient records created by the employee belong to the employer. However, the physician should negotiate for reasonable access to those records even after the physician leaves the employer for the purposes of defending a malpractice action, a credentials committee investigation, or a Florida Department of Health (DOH) inquiry. Access to such records is very helpful, and sometimes necessary, to defend these kinds of actions.
Tip 19 - Intellectual Property Usually Belongs to the Employer.
If an employee performs research, or publishes books or papers during work time or even after hours, that intellectual property usually belongs to the employer. That is unless there is a written agreement that gives the physician ownership rights to these materials.
An employee may want to negotiate the ownership of that intellectual property before signing the contract.
Tip 20 - Attorney's Fees in Contract Disputes.
Ordinarily disputes are resolved in the courts, and each party will pay their own litigation costs and attorney's fees. Sometimes, however, the parties will agree to use arbitration as an alternative way of resolving disputes. While each process has its advantages and disadvantages, arbitration is generally faster and less expensive than litigation.
Unless the parties agree otherwise, each party to a lawsuit, mediation or arbitration ordinarily will pay his or her own attorney’s fees and costs. However, most physician employment agreements include a clause obligating the losing party to an enforcement action to pay for all legal fees of both parties.
Most places in the U.S. follow the American Rule with regards to attorney's fees. Under the American Rule each party is responsible for their own attorney's fees unless a statute or contract provides otherwise. Employment agreements very often include a provision that provides that the prevailing party is entitled to his/her attorney's fees in any dispute under the contract.
Tip 21 - Read the “Boilerplate” Provisions.
Most employment agreements have a series of “boilerplate” provisions that usually come at the end of the agreement. These provisions may include important provisions and should be considered carefully. For example, very often there will be a provision that states the written contract is the final agreement of the parties. If something was negotiated that is not included in the contract it will be precluded by the boilerplate provision. Anyone negotiating a contract should be concerned with any promise to work it out later.
Past and Future Blogs on Employment Contracting.
To review our previous blogs on physician contracting tips: click here for part one, click here for part two, here for part three, here for part four, click here for part five, click here for part six and click here for part seven.
In our future blogs, we will continue to provide tips on various issues to watch for in health care employment contracts.
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.
As a physician, do you have any questions about contracts? Tell us your mistakes or triumphs in negotiating your contract below.
About the Authors: Christopher E. Brown, J.D., 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 Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.
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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