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Health law attorney Dennis Hursh discusses his article, “Doctors beware: How vague contracts put your job at risk,” revealing how poorly defined termination clauses in physician employment agreements leave doctors vulnerable to arbitrary dismissals. Dennis shares alarming cases where physicians were terminated for dubious reasons, including personal attire choices and missing a shift due to a family emergency. He highlights the risks of “crappy doc” termination clauses and the severe career consequences of National Practitioner Data Bank (NPDB) reports. Dennis outlines practical strategies for physicians to protect themselves, including contract provisions requiring reasonable and good-faith determinations of quality concerns, third-party expert reviews, and structured dispute resolution processes. Listeners will gain crucial insights into safeguarding their careers through careful contract negotiation and legal protections.
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Transcript
Kevin Pho: Hi, and welcome to the show. Subscribe at KevinMD.com/podcast. Today, we welcome back Dennis Hursh. He’s a health law attorney. Today’s KevinMD article is “Doctors beware. How vague contracts put your job at risk.” Dennis, welcome back to the show.
Dennis Hursh: Thanks. It’s always good to be here.
Kevin Pho: All right. Tell us what your latest article is about.
Dennis Hursh: Well, it. There’s a very reasonable looking clause in a lot of physician employment agreements that says, basically, if the employer determines that you’re giving poor quality care, then the employer can terminate you. And a lot of physicians look at that and say, well, that’s fair.
If I’m. You know, obviously, if I’m doing bad care, then they should get rid of me. But the problem is, it usually says something like, if the employer determines. So, if the employer determines that you wore a white shirt Tuesday, I think that intimidates patients. Well, I, as the administrator, have determined that, and I’m terminating you for poor quality care.
So, I, I see that tripping up people. I used to give that example as a crazy example that could never happen. But I mentioned in the article that I spoke to a female physician who was fired and told it was for being unprofessional, and the problem that she had was she wore a purple flowered lead apron. She was an interventional radiologist, and that was unprofessional in the administrator’s opinion, and that was good enough. She was terminated for poor quality care.
Kevin Pho: So, in terms of these contracts, there’s no metrics or objective measure that can determine what’s poor quality care or not.
Dennis Hursh: Exactly. If the employer determines, that’s it. So in that case, you know, the purple apron, the employer determined, and that was the end of that.
Kevin Pho: And are you seeing more and more instances of unreasonable definitions like the one that you described in terms of defining what poor quality care is?
Dennis Hursh: Well, I, I haven’t seen a lot, but I’ve seen a few. I mean, I used to do this, as I said, as a crazy example. And now in the last year, I’ve run into two where people were actually terminated because of that kind of crazy thing. The second one was a physician who had a family member die and called in many hours before his shift was to start. And basically he was threatened if he didn’t come in, he would be terminated for poor quality care.
And, you know, again, not showing up with plenty of time. It’s one thing if you just don’t show up to your shift. But he had plenty—there was plenty of time to get a replacement. Just the administrator didn’t care to go to the expense.
Kevin Pho: And in terms of getting terminated for quote unquote poor quality care, tell us about the detrimental effects it has on a physician’s career.
Dennis Hursh: Well, if they do that, they should not report it to the National Practitioners Data Bank, but many times they do. I had somebody I spoke to who told me that the hospital’s attorney, out of an abundance of caution, reported a medical leave. He was just 90 days. He was stressed out and he took 90 days off, and the hospital counsel, out of an abundance of caution, reported that to the medical board as possibly impaired.
Impaired for his licensure. So he’s going to be explaining that for the next 20 years—what that was, of course, and the board actually looked at it and, of course, sent him a letter saying, we don’t think a disability is an impairment of licensure. But as I said, for the next 10 or 15 years, every time he fills out a credentialing application, he’s going to be explaining that.
So the biggest concern is a national practitioner data bank. By far.
Kevin Pho: And that vague language, is that pretty much universal in all physician contracts that you review?
Dennis Hursh: I see it a lot. I won’t say universal. What I want to see is good faith, reasonable determination, but I’ll accept reasonable because that gives you an argument. You can come back and say, hey, you know, that wasn’t reasonable. But no, I see a lot of them that just simply say, if we determine it’s poor quality care, we can terminate you immediately.
Kevin Pho: So in terms of negotiation room, it’s just a matter of inserting that type of language—good faith, reasonable. There’s no way to include like specific metrics that could define poor quality care.
Dennis Hursh: I do. I usually suggest that the physician and the employer jointly pick an expert. We both agree that this person is an expert generally in your specialty, and that expert examines the physician’s quality of care. And I, I mean, my standard is if the expert says your care is below standard, you have 60 days to bring it up to standard. So you’re looked at again in 60 days. If it’s still not standard, you’re terminated. But the idea isn’t just, you know, some MBA determining you’re giving poor quality medical care—it’s that you have somebody who knows a little something.
A lot of lawyers ask for due process. Usually I don’t. The reason being, the employer definitely has to report to the National Practitioner Data Bank if you have a hearing and you’re found to have given poor quality care. That must go to the practitioner data bank. So, I usually don’t ask for a hearing. I usually ask for that expert.
Kevin Pho: And are most medical institutions, are they amenable to that modification language that you suggest?
Dennis Hursh: Some are, some aren’t. But if you ask for that, sometimes you can settle for a reasonable determination, which is a big jump up from just whatever we say, that’s what applies.
Kevin Pho: So assuming that a lot of physicians don’t have that good faith, reasonable language in their contract, and they get wrongfully terminated for subjective poor quality of care, what kind of recourse do they have?
Dennis Hursh: I don’t think you have much because your contract says that if I determine it’s poor quality care, you were terminated. And I did in fact determine that. So as the administrator, you’re terminated. So I don’t think they have a lot of recourse. I mean, if there’s a report to the national practitioner data bank, the damage to your reputation and everything at that point, I think, would give you recourse to go after the hospital. But again, you know, maybe in six years, congratulations, you won. And for all that time, you’re reporting it, and even after that, you’ll probably have to report it and say, you know, it was found to be frivolous.
Kevin Pho: So, for our physicians negotiating their first contract or renegotiating an old contract, that specific language, is that where is that in terms of the order of importance? There’s so many things important in a physician contract, but where is that in terms of the order of importance?
Dennis Hursh: I think it’s one of the less likely things. I mean, it’s not, you know, to say you wore a white shirt, so you’re a bad doctor, I think is kind of a stretch. It does happen. I think things like patient contact hours and, you know, evaluation of compensation, in my mind, are a lot more important. Call coverage limitations, those sort of things.
Kevin Pho: So in terms of, you know, we’ve talked about contracts many, many times on this podcast, but just go again in terms of how important it is to have an independent review of a contract before a physician signs it, just as a reminder to our audience about some of the Yes, boys. Problems that arise if that doesn’t happen.
Dennis Hursh: Well, I mean, this is one example: You get terminated because you wore a purple flowered apron. But a lot of times there’s just too much ability of the employer to make a determination. There should be a limit: Where are you going to be working? It can’t be where I assign you because with health systems taking over the globe now, you know, they can say, hey, we bought a new hospital 80 miles out of town and that’s where you’re going to be Thursdays from now on.
So you want some specification on where you’re working. You want patient contact hours. You want reasonable limits on call. If you’re doing more call, you should be paid. There’s just a whole lot of moving parts. And I think somebody that’s never been bitten—you know, I have people that I review their second contract because their first contract said this, and I never thought that that would happen, but that happened.
So, there’s just a whole lot of moving parts in there that can come back and bite you. And that’s why I think it pays to have it reviewed.
Kevin Pho: And to sum up, when it comes to these vague termination clauses, an optimal outcome from a physician would be inserting words like good faith and reasonable and perhaps some type of third-party physician to review the potential termination reason?
Dennis Hursh: Yes, I think so. I mean, again, optimal would be an expert that you and the hospital or you and the employer agree on, but at a minimum, it should be reasonable.
Kevin Pho: We’re talking to Dennis Hursh. He’s a health law attorney. Today’s KevinMD article is “Doctors beware. How vague contracts put your job at risk.” Dennis, as always, let’s end with some take-home messages that you want to leave with the KevinMD audience.
Dennis Hursh: Yeah. I think you should always look at an employment agreement. To me, one of the most important things are the termination provisions, and just make sure they’re reasonable. That’s the biggest thing. Everything should be reasonable, but the termination clause in particular should be reasonable.
Kevin Pho: Dennis, as always, thank you so much for sharing your perspective and insight. Thanks for coming back.
Dennis Hursh: Sure. It was my pleasure.
