H E A L T H L A W Employment Contracts Part 2: Troublesome Clauses ■ JOHN SHUFELDT, MD, JD, MBA, FACEP C ongratulations, you have found the perfect job! The chemistry is right, the pay is adequate, and the working environment is somewhat better than a sweatshop. So what’s missing? Ah yes, the contract—that little document designed to protect both parties in the event of a disagreement. Although that de- scription sounds innocuous, employment contracts are usually written by employers and tend to be slanted to their needs, as opposed to those of the employee or contractor. Therefore, it is incumbent upon the physician to thoroughly understand the con- tract provisions prior to signing the agreement. For example, a recent client of mine who was right out of res- idency signed a contract with a large office-based practice. At the time, she did not want to spend the money to have the contract reviewed by an attorney; nor did she negotiate any clauses which she found confusing or ambiguous. Not surprisingly, the job did not turn out to be what was de- scribed in her initial interview. She was treating 60+ patients per day without a break, the clinic was staffed to bare bones mini- mum, and consequently, results were not being communicated to the patients nor entered into the chart. All in all, the practice was a disaster and she was afraid that the set-up of the office was a malpractice event waiting to hap- pen. When she approached her employer, his response was ba- sically the same one Flounder received in Animal House: “You screwed up, you trusted us.” She wanted out as soon as possible. To her chagrin, however, the contract did not provide an out clause for the physician ex- cept in the event of breach of contract by the employer. No ex- amples of what would constitute such a breach were illustrated. In addition, the contract had a restrictive covenant of one year and 10 miles around each office practice. In effect, this radius locked her out of the metropolitan area where she lived. John Shufeldt is the founder of the Shufeldt Law Firm, as well as the chief executive officer of NextCare, Inc., and sits on the Editorial Board of JUCM. He may be contacted at JJS@shufeldtlaw.com. w w w. j u c m . c o m Finally, the contract did not mention responsibility for the tail or extended reporting provision. Unfortunately, her religious persuasion did not allow her to “start drinking heavily” (more sage advice from the Delta Tau Chi house); thus, she was forced to seek legal guidance. Preventive Medicine, Legally Speaking Remember the phrase “an ounce of prevention is worth a pound of cure”? Reviewing a contract is one of those times it’s more than just a catchy saying. Take the time and spend the money to have your contract reviewed. It is money very well spent. Following are some things to consider: Ⅲ Assume the contract will be enforced as written. Too often, physicians assume that the person who negotiates the contract will be the one who ultimately has to enforce the contract, and that the enforcement will be tempered by what was orally agreed to. The typical phrase that a physician hears is, “Don’t worry about that, we would never hold you to it.” People change jobs, however, and the person with whom you have a great relationship may be long gone when it comes time to interpret the contract language. The take home point is this: Assume the contract will be strictly enforced as written. Ⅲ A corollary to the preceding point is to never rely on oral prom- ises not reflected in the written contract. For example, you may have been told during your interview that you will only be required to work one weekend per month. However, when you get the contract it is silent on this issue, or it states, “The physician’s work responsibilities shall include weekends in accordance with the rotation schedule es- tablished by the practice.” Since the written contract controls, make sure before you sign that what was promised during the interview is contained in the written contract. Ⅲ Be very wary of covenants not to compete. Most physician em- ployment contracts contain a provision that if the physician leaves the practice, he or she will not compete with the prac- tice for a specific period of time in a specific geographical area. JUCM T h e J o u r n a l o f U r g e n t C a r e M e d i c i n e | S e p t e m b e r 2 0 0 7 39