By Christopher E. Brown, J.D. 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 third in a series intended to provide an introductory 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 and other health professionals will understand the common language and terms found in employment contracts for professionals so they can recognize mistakes commonly made by physicians and health professionals 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.
The first part of the series can be found here. The second part of the series can be found here.
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 6 - Be Sure That You Receive a Signed, Dated Copy Back Before You First Start Working.
If you are an employee, be sure that you receive a copy of the contract back that has actually been signed and dated by the employer. One of the most common legal problems we encounter when we consult with an employee whose employer has broken the contract is the absence of a signed or dated copy of the contract. Anyone can type up a blank contract. There may be many preliminary drafts of a contract that are not agreed to or executed by the parties. How can you prove that this is the actual agreement between the parties if you do not have a copy that is signed by the parties?
Tip 7 - Make Sure That all Exhibits, Schedules, Addendums and Referenced Documents are Attached to the Contract.
We often see contracts which refer to attached exhibits for job requirements, bonus calculations, benefits, employer handbooks, employer code of ethics or conduct, etc. However, in many cases these are not completed or not attached to the contract when it is signed. Make sure that any documents that are referred to by the contract are actually attached to it and are completed.
These are part of the contract. Your copy is not complete without them.
Tip 8 - Amend the Contract, By Hand if Necessary, to Make It Consistent with the Agreement of the Parties.
A contract is not a sacred document. You may write on it, if necessary, to amend it. You may attach separate handwritten amendments to it. Just make sure any handwritten changes on the contract itself are initialed by each party. Make sure any amendments attached to it are signed and dated by each party to the contract. Remember, also, that the changes must be understandable. If a judge is later called on to read it and interpret it, it must be clear to the judge.
Under the general rules used to construe contracts, typed changes and amendments to preprinted forms take precedence over the preprinted portions. Handwritten changes and amendments take precedence over typed or preprinted portions, and spelled out numbers and dates supercede numerical ones (if there is a conflict). However, there must be evidence that these were agreed to by both parties (such as initials or signatures prove).
Future Blogs on Employment Contracting.
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.
About the Author: 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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