Young Physicians Must Avoid These Disasters In Their First Job

Transcription PNC Podcast Episode 418

Young Physicians Must Avoid These Disasters In Their First Job

John: All right, I want to get right into today's lesson. I don't have a guest today, so I'm just here to help warn residents, fellows, and early career physicians about landmines that are waiting to blow up in your face, potentially derailing your entire medical career. I don't think most physicians learn about these things in their training, unless they're doing some extra studying and extra inquiry.

Sometimes things are touched on in terms of peer review, or in terms of quality improvement in whatever new profession you're pursuing as a physician, in terms of the specialties. But really, they're often completely unknown risks that are lurking there to destroy your career and your ability to earn a living. Some of these things are major disasters.

So please heed the message that I'm trying to tell you today. Again, ideally, these warnings I'm aiming at residents and fellows, although I know most of my listeners, like you, are already in practice, maybe you've been in practice for a while, you're getting burned out, getting stressed out. But these kinds of things can happen anytime in your career.

Although when you're mid-career, you may have already been exposed to them and may be aware of them. It's more likely that major issues related to these landmines will occur during your first clinical job. And unless you're well-versed in the following subjects, please pay attention to what I have to say today, because I've heard some real horror stories recently.

Here are some of the things that might trigger you thinking about this. Terms like the following, the National Practitioner Data Bank, FPPE and OPPE, restrictive covenants, peer review, sham peer review, the TJC, extended reporting or tail coverage or covenants not to compete in your contracts. All of those and more that I'm going talk about today can just really be waiting there to derail you from the career that you're planning to have.

The timing is, I think, the best to think about this early, as early as possible as you can, once you know you're on the course to be practicing medicine. I know some of you are so burnt out already from medical school and residency that you're planning not to actually practice medicine. These issues probably won't apply to you.

But I think it'll be kind of instructive to go through these using some different case reports. These are things that have happened, have been published in publications geared at physicians. And some of these things that I've heard of firsthand from discussing them with someone who called me to get some help.

Let's start with this. You're in your second, third year, you're thinking about your career, what are you doing? You're starting to look at positions, you're trying to find out, you've decided perhaps what specialty you want, you're looking at residencies, or maybe you're already in your residency, maybe looking for a fellowship, and you're starting to look for jobs and say, if you're in your second or third, maybe even earlier in your first year, because it does take a while to look at the positions you might want to apply to for certain specialties, they really start recruiting like more than a year out. So if you're an orthopedist or cardiologist, and so forth you may need to really be thinking about these things early on.

I saw a report in which a cardiologist working at a midsize community hospital. And when she joined, everything looked great. I mean, there was a good group there, she was joined, it was employed by the hospital, her contract is going to be with the hospital.

The contract had most of the usual kinds of features in it most contracts will have 10, 12, 15 common things. And some of the things in there, a covenant not to compete, and then tail coverage may be addressed in there, if it's not 100% covered from day one by the employer, but she had a contract that included a two year 25 mile covenant not to compete. The hospital she was working with was purchased by another large system.

It was backed by private equity. I only say that because sometimes when you've got a private equity firm, they're not as flexible with the medical providers, whether it's nurses or physicians, when it's time to make some big changes to make the organization profitable. A lot of these private equity companies buy these hospitals because they're losing money.

It's a way to get out from under that. But when that happens, a lot can change. And that's what happened with this buyout, they they developed some new productivity benchmarks for the physicians, they altered the call schedules, they reduce the ancillary with support to try and boost their bottom line.

The doctor in this case that had been hired a few years before, decided that she didn't want to sign a new agreement. She didn't like the way things were going and he she was due to re sign up and didn't like the new contract. So she refused to sign it.

Well, of course, the result was she was terminated by her employer. And then of course, her hospital privileges ended automatically. Now that doesn't always happen.

Because sometimes you're protected by certain provisions in the medical staff bylaws. But most of the time, if you're employed by the hospital that has now been bought out, and so you're now employed by a new hospital, they can pretty much do what they want. And it's difficult to unless you sign a new contract to avoid that.

Now when she started looking for a job locally, she found out that her old contract had a non-compete clause, which really, like I say, I think I mentioned it was a two year 25 mile covenant not to compete. That pretty much blocked her from practicing anywhere in the metropolitan area where she was living and working at that time. So that forced her to relocate her family and accept temporary work way outside where she was living.

And actually, I think from the article I read, she actually practiced outside her own specialty. So to her, it was a huge surprise. It kind of messed up her life drastically. She challenged it in court. But the state law at the time allowed enforcement for this kind of thing. And the judge upheld the agreement.

Again, this is kind of one of the less serious problems I'm going to talk about today. But here you are, you've signed a contract, you may have had an attorney look it over and say, it sounds pretty reasonable, looks reasonable. Let's see how things go.

We've got a good pay, we've got some other benefits that are going to be quite good. And so you sign it not knowing, not thinking that something like this is going to come up. No one warned you that the hospital was doing poorly.

No one warned you that it might be bought out. But we've seen many physicians just have their lives disrupted in a big way. When one larger system or private equity firm buys out a hospital, and then everybody has to scurry, sometimes they're going to downsize.

So even if you're part of a group that has will be employed by the new company, they'll say, well, we only need six of the eight that are currently employed. So you have to go and by the way, you cannot compete with us because we have a non-compete in the contract that you sign. And so your life is severely disrupted.

This you can overcome obviously, but I bring this up because I really think I've seen a number of times where physicians decided that I don't think I really need an attorney to, to help me review my contract. I mean, it's pretty straightforward. I've talked to the people I've done my research, the references are good.

I think I understand everything, but you know, you need to push back on some of these because really the purpose of the contract, well, it does confirm the salary and the schedule and the call responsibilities, which is important, but really one of the biggest things that a contract like that is meant to do is to prevent disasters from occurring down the road. And a lot of people tend to minimize these things because a non-compete doesn't, may never affect you. You're going to be working.

Everyone's happy. Patients are good. The place is stable. They'll never come up. Same thing with tail coverage. Some contracts still require physicians who are hired to cover some of their own tail coverage, at least for a few years, which is a big disaster when you're, you're let go and you have to come up with 20, 30, 50, 100, $200,000 for tail coverage when basically tail coverage is part of doing business.

When you have claims made policy there's, there's no provision in the original malpractice insurance to cover that tail. Some people will get that paid by the new organization that's hiring them. If they're lucky enough to get a job that'll do that.

But again, getting back to the non-compete you really should fight over that, even though it may never come up in reality, but it'd be much nicer if you had a one year or it was only a five mile radius instead of a 20 mile radius. So bottom line there is you should always hire an attorney to review any employment contract. An attorney, it's a healthcare attorney.

That's familiar with this kind of thing, an employment contract, maybe even specializes in that. And you should try and find the names of attorneys who are very physician friendly and are very skilled and experienced in doing this. That'll apply to everything else in that contract, which I'm not going to go into detail here today.

Let me move to another story. There was a physician practicing in Southern Nevada who was abruptly stripped of his clinical privileges. This is quite a few years ago, 20 years ago, but it's a good case to learn about. And there was no prior notice or opportunity to defend himself. It just happened. He was just notified that your clinical privileges were removed.

The hospital staff had had a bunch of meetings, clandestine meetings by the leadership, and they suspended his privileges and unjustly labeled him as a risk to patient safety, which by virtue of the privileges being removed, not because let's say the contract expired or you lost the ability to see Medicare patients for some reason, or you could no longer get coverage. It was put through as a patient safety and quality issue. And that automatically requires reports to the National Practitioner Data Bank.

That pretty much ended his hospital-based career because at that point, no hospital would hire him would employ him because of the National Practitioner Data Bank notation and the fact that he had lost his privileges. And a lot of times in the data bank listing, there's some, I mean, there's an explanation of what was triggering it, but it doesn't go into a lot of detail and it can be pretty vague. And he sued the hospital.

Because he felt that this whole process was in bad faith and with malice. Of course, he didn't agree with the findings and he wasn't given a lot of time to respond to the allegations that led to the removal of his privileges. Now, the hospital invoked the immunity under the Healthcare Quality Improvement Act, which does generally protect peer reviewers during professional evaluations if they're conducted in good faith.

However, he was able to show that there really wasn't a lot of good substantiation for any cause that led to his removal from the staff. And the courts did rule in his favor. Now, this required a lot of money.

Obviously, he had to hire a very experienced healthcare attorney to take the hospital to court. And he was able to show that the hospital that employed him had violated its own bylaws and that his due process rights were not being upheld and it was settled confidentially. So, we don't really know what happened in terms of the settlement.

And it's good to hear when you can, but can you imagine? I would say this probably took two or three years of litigation. And in the meantime, he would certainly find it almost impossible to find a job.

Maybe he could do some kind of cash only thing. We've talked about this in a previous podcast episode of what to do when you find it difficult because of a national practitioner data bank notation or report or something else that makes it difficult for you to be employed. Well, then you have to find something to do that does not require employment, which means maybe start your own practice, maybe do direct primary care if you're not a specialist and so forth.

But again, if you don't understand how your medical staff works, how peer review works, maybe your personality is such that you might get reported by one of the nurses or other staff that you're being rude or condescending, so-called behavioral issue for the medical staff, which will always have some policies on what kind of behavior is outside the expected norms. And ordinarily you should get a warning and have maybe some coaching or something to resolve that issue, not just a summary judgment to kick you off the staff. So that's probably why this physician was able to overcome that.

But again, it's going to destroy your career for a year or so if you ever even are able to get back into practicing. This is one example of sham peer review. So they didn't follow their process properly.

And as a result, that hospital ended up having to reinstate the physician. Sham peer review is a process where the so-called peer review process becomes weaponized and where a physician is not given an opportunity to respond to allegations. And the procedural safeguards that are built into the medical staff rules or even the employment rules at the hospital weren't followed adequately to where the physician was given a chance to respond and defend themselves.

And that can lead to destroying a doctor's career, as I mentioned. So you need to understand the peer review process at whatever hospital you're working at if you have hospital privileges. Don't just think that it's well common sense or that as long as you get your records done and you're nice to people, you can't be accused of some deficiency or some infraction because it can happen.

I'll talk a little bit more at the end here on how you should think about responding to an allegation. There was another surgeon practicing in Indiana who had privileges at a local hospital that was not affiliated with any major health system. But over time, the Indiana University health system began acquiring physician practices and buying up some of the hospitals in the region.

And at one point, it reached basically employing 97% of the primary care physicians in the Bloomington area outside of Indianapolis. And when this physician that had been working independently, although he had privileges at the hospital, he was not employed by the hospital, he decided he did not want to become an employee of this big system. And so he continued to practice and try and maintain his privileges.

But he became more and more marginalized because the system is generally going to try to push all patients to itself, obviously. So all the physicians that are employed are going to be heavily pressured to only refer to those in the system. And also what happens sometimes, as was alleged in this case, the system and the physicians in the system engage in a coordinated campaign to damage his clinical reputation, undermine his practice.

And so by so doing, he was forced to leave the medical staff. Basically, they terminated his medical staff privileges. And that, of course, would not allow him to admit or treat patients at the hospital.

And so basically, again, he was out of a job, he had limited recourse, and he was allowed to go to court to fight this. And I think that the outcome of that is still pending. So you can imagine, whatever savings you have, you're going to start to go through those as you begin to fight this legal battle and also pay the additional expenses.

Now, I don't know whether you can claim to have your expenses covered if you win the case. It's not a malpractice case. Again, it's a peer review or possible sham peer review. And I'm not sure the loser always ends up paying the others legal fees. But there can be a punitive component to it. So hopefully he will be able to recoup those if he is successful.

Anyway, another example where consolidation could lead to some major issues with your employment. Now another case, there's a surgeon who had privileges at a hospital, was having issues, some issues with communication, and really a big issue with falling behind on her medical records. The hospital talked to this physician several times, and she tried to comply and get caught up, but she didn't really understand how serious it was because the records issue was felt to be a quality issue by the hospital she was at.

And it was something that was monitored as part of the FPPE, which is focused professional practice evaluation, FPPE, as to be distinguished from OPPE, which is ongoing professional practice evaluation. So these are quality metrics that are required by TJC, the joint commission, as well as DNV, which is another hospital certifying organization. And I think the other one is HFAP.

Anyway, all of these pretty much require something the same as or similar to FPPE and OPPE. Well, she didn't realize, and basically following their protocols without really involving her very much directly, they announced one day that she had failed her FPPE and that she needed to get on some type of a corrective plan to get caught up and to meet the requirements. Meanwhile, she was employed by a private group.

She had privileges at the hospital, but she wasn't employed by the hospital. If she was employed, they probably would have just canceled her contract and sent her on her way. But in the course of this whole thing, for unknown reasons, her group just fired her.

I don't know whether her contract was just terminated or whether it was not renewed, because a lot of times they'll just wait until your contract ends. And then they'll just send you a note 60, 90 days ahead of time saying, we're not renewing your contract. That's not really considered in some level that you're being discharged unfairly or anything like that. It's just part of the contract. You have a three-year contract after that point.

Now, that was bad enough. Now, had she not been in the FPPE process, it probably wouldn't have affected her ability to become employed with a new job. But it did, because what happened then was the hospital, really without explaining this in detail, told this physician that, well, since you're not employed by anyone that has privileges or that's in our area, you're not going to have any patients here. And so you should just let your privileges lapse, or we're going to send you a notice that because of that, you're going to be dropped from the medical staff, not for any other particular reason, but mainly because she would never have any patients that would go to that hospital.

Well, later on, as she was looking for a job, when new prospective employers were trying to look at her past history and talk to people where she had worked, this came out. She basically could not find a job. She was months and months and months before she found out how serious this whole situation was. And when she confronted the original hospital about the fact that these comments are keeping her from finding a job, they said, well, there's nothing we can do. You left. It wasn't resolved.

So, the FPPE is considered to still be open. This was never reported to the National Practitioner Data Bank, thank goodness, but something I had never heard of before. But basically what it did was, unless that hospital decided to somehow close it out without any kind of adverse effect, she was going to be stuck.

Now, it's common knowledge that if you withdraw from a hospital, withdraw from your privileges or your admitting privileges or membership on a medical staff while you're in the process of being investigated, that automatically gets reported to the National Practitioner Data Bank. But in this case, the hospital considered this to not really be a quality issue because the reason that they terminated the privileges was simply because she didn't have any patients in their catchment area. It was something that was out there.

And every time a reference was being checked by another prospective employer, they would find out that this whole thing had happened, that she had, quote lost her privileges, although not for any quality issue that was identified, and she simply could not find another job. So, this is another thing that I covered in a previous episode where if you've already had a negative National Practitioner Data Bank report, how can you overcome that? Well, it would be the same in this case, even though she hadn't had that kind of report.

These are just some examples of how you can get caught up in these legal issues that can drastically affect your employability. And I had one other case I did want to mention briefly, and that is that one of my colleagues who I've interviewed, and actually I posted a replay of his interview back about a month ago, he was in good standing. He was a practicing pediatrician.

He was also the president of the entire network of hospitals. I think it was eight or 10 hospitals, very well-known person. And he was a pediatrician, and the mother of one of his patients accused him of a sexual advancement or some kind of sexual behavioral issue in the office.

And as soon as that was reported in the news, the system that he worked for basically either temporarily or permanently revoked his privileges until this thing could be investigated, which they weren't saying he was guilty. They were just saying that there had been this allegation. The police had actually come and arrested him.

He didn't have to remain in jail or anything, but this whole thing blew up, and he decided to fight it. And after a year or a year and a half, he was found not guilty. Maybe it was even two years.

But by then, he had to find another way to make a living, and he was doing that, and he decided not to go back to that job. But again, these things can happen. And you have to realize that you're scrutinized very closely, not only from a quality standpoint, but from your behavior, something you might say, an inadvertent misunderstood action of some sort.

In his case, what he said basically was that they were in close quarters. He was taking care of the child, examining the child. The mother is standing right next to them. I think she wanted to be close to the child and make sure that she cooperated with the examination. And either he rubbed up against her inadvertently or did something that she mistook as a sexual advance. And again, from a legal standpoint, he was exonerated, but it certainly led to a complete shift in the path of his career from that point on.

Let me summarize. I just want to remind you that medicine is fraught with these kinds of things, not even including just being sued for some alleged malpractice, which is always out there as well. So I guess the way I would try to avoid this is several.

One is try and learn about these things. I don't think because as medical students or residents, we're not always involved in the actual machinations of the medical staff of the hospital where we're working. We don't know that these things are going on and that they exist.

We're trying to learn how to take care of patients. You may not know what's going on behind the scenes from a peer review standpoint. We don't understand all the meetings that the medical staff members go to, from quality insurance to credentialing.

There's just dozens and dozens of committee meetings and other types of activities that are involved in keeping a hospital going and meeting the requirements external to it from the credentialing and accreditation organizations. I think that's why I think it's good to learn about the peer review process and you should learn as much as you can about physician employment contracts and where you can get burned with those things. You got to understand how the National Practitioner Data Bank works and how certain types of reports are mandatory to where hospitals don't even have a choice even if they think it's not worthy of a report.

You should read up on sham peer review and FPPE and OPPE and sentinel events and hospital code of conduct policies. I think you should always, with respect to your contract, whether you're going to be employed by a group or a hospital, you should always have an attorney look at your contracts and help you negotiate those contracts and to minimize some of the more onerous aspects of those contracts that tend to be in there, if at all possible.

Also then as you're starting your new job or you've been in new job for six months, a year, whatever, anything that seems out of the ordinary, any allegations should be taken very seriously. If somebody files a complaint is because you're rude, or there's some behavioral issue, you should take that seriously. You should apologize if it's worthwhile and necessary.

And it makes sense because maybe you lose we all lose our temper and say something stupid. And we say as long as we acknowledge that we agree that it was inappropriate, and it won't happen again, that can be the end of it. But any thing that you know, you might want to brush off that someone's coming to you and saying, we need to have a meeting to discuss an issue, particularly if they won't tell you the nature of the issue.

A lot of times physicians just minimize something. And when quote, hospital leadership says, Oh, we'd like to meet with you next Thursday, just an informal meeting with some of the medical staff leadership and yourself. You should really try to find out the nature of this meeting beforehand.

In fact, if at all possible, I would actually say, look, I'm happy to come to a meeting and talk to you, I need to know what the meeting is about before I show up. I'm not just going to walk into a meeting without any preparation, but I don't know what the meeting is about. Ideally, you should take notes in any of these meetings.

If you find yourself unprepared and somewhat shocked by what the content of the meeting is definitely take notes. Again, if you don't know why you're meeting would be nice to ask if you can bring a colleague who can help verify and attest to what happens in the meeting. Because if you go into a meeting with five administrators and their attorney, and you and you're going to just try to defend what they're accusing you of, the minutes for that meeting can look a whole lot different unless there's someone else there to verify or if they'll let you take the actual meeting itself, which they probably won't.

Soon as you find out what's going on, you should go back, review all the applicable medical staff bylaws, look at the policies and procedures, look at the outline of the FPP and OPPE programs if it's part of that, or policies on medical records. Even if it is something as simple as you're three months behind in your medical records, which is a quality issue, it's usually not something that's criminal. Look at the bylaws, look at the rules and regs, look at the policies and see if you truly are out of compliance, what the normal response to that would be, because they might just be trying to use that to get you off staff for other reasons.

And that's where we get into sham peer review, where the whole motivation behind the process is hidden. And there's really other reasons, more or less anti-competitive reasons to get you out of the area, to get you off the staff. That's just the warning that I wanted to put out there for all young physicians today.

There's a lot of pressure to move quickly when you're being employed in your first position. You don't always have a lot of chance to even look at some of these things. Ideally, you would perhaps even look through the policies and procedures, the medical staff bylaws, your employment contract, obviously.

But as the end of your residency is coming up or your you need to find jobs. So I understand the pressure, but get a good lawyer, take their advice seriously, try and find a lawyer by talking maybe with others who have already gone through the negotiation process.

If they've found a particular lawyer that the hospital does not like to deal with, it's usually because they're very good and they'll push everything. And that's the attorney that you want when you're doing your contract and when you're responding to some of these allegations. So, that's it for today's content.