Digest View
Discussion: General Discussion
Section: Medical Training and Preparation
Topic: Slavery Contracts: The way of doing business these days?
Topic - Anon_534565 on 06/11/01 03:20 PM
I was submitted the following contract for my consideration by someone I believed to be a hard working not very qualified but otherwise honest doc. I strongly believe that business cannot be conducted this way. Please read and state your opinion on this very crucial matter for many of us specially at this time of the year when new recruits are signing contracts at times without the benefit or means to obtain legal review.
AGREEMENT FOR INDEPENDENT CONTRACTOR
THIS AGREEMENT is entered into as of July 15, , by and between., (hereinafter referred to as Company), a medical practice organized and existing under the laws of the State of California, having its principal place of referred to as Contractor).
WITNESSETH:
In consideration of the promises and mutual covenants herein, the parties hereto agree as follows:
SECTION I.
PROFESSIONAL SERVICE OBLIGATIONS
1.1 Duties of Contractor. The Contractor agrees to work as an independent contractor for the Company providing medical care for patients in the hospitals, offices and skilled nursing facilities.
(a) Company hereby contracts with Contractor, and Contractor hereby accepts retention with Company, to provide professional medical services (Professional Services) during the normal business hours and work days of Company as described herein. Contractor agrees to comply with all obligations of Company with respect to Contractor's performance of the Professional Services.
(b) Contractor will provide medical care to at least twenty patients a day in the hospital setting (as an average) and will also consult and follow patients in the offices as the outpatient practice grows. Contractor will also provide medical care for patients in the nursing homes where Company has patients at the present time.
1.2 Call Coverage. Contractor shall provide night and weekend call coverage of the Company as follows: Every other weekend during the year and weekdays after hours as scheduled by Company.
1.3 Referrals. Contractor shall make referrals in a manner consistent with: (i) the policies and procedures of the Company, as amended from time to time; (ii) the terms and conditions of government or third party payor programs which contract with Company or with which Company is a participating provider; (iii) and applicable federal or state laws and regulations.
1.4 Nondiscrimination. Contractor shall not differentiate or discriminate in performing Professional Services on the basis of race, color, national origin, ancestry, sex, marital status, age or payor (including Medicare or Medicaid), or on any basis prohibited by applicable law.
SECTION II.
PROFESSIONAL QUALIFICATIONS AND STANDARDS
2.1 Professional Qualifications. Contractor shall be duly licensed at all times and qualified to practice medicine in the State of California, and shall be board certified/board elligible in internal medicine. Contractor must maintain a DEA license at all times.
2.2 Medical Staff. Contractor shall be a member in good standing in the active staff category of the medical staff of Hospital (the Medical Staff). If Contractor is not a member in good standing in the active staff category of the Medical Staff as of the Effective Date, Contractor shall have a reasonable amount of time to obtain such membership, provided that Contractor diligently pursues such membership in accordance with the normal procedure as set forth in the Medical Staff bylaws of the hospital, convalescent and nursing homes.
(a) Contractor must have privileges to practice Internal Medicine at the following hospitals.
(i) Memorial Hospital.
(ii) Paradise Valley Hospital.
(iii) Vista Hospital and Medical Center
(b) Contractor must have privileges to practice Internal Medicine at the following Skilled Nursing facilities.
(i) Paradise Hills Convalescent Home
(ii) Castle Manor Convalescent Home
(iii) Friendship Manor Convalescent Home
(iv) Paradise Valley Health Care Center
(v) Windsor Gardens
(vi) Fredericka Convalescent Home
(vii) Birch Patrick Convalescent Home
(c) Contractor must maintain good standing with all Insurance companies requirements and coverage.
2.3 Performance Standards. Contractor shall comply with all bylaws, policies, rules and regulations of Company and the Medical Staff.
2.4 Continuing Medical Education. Contractor shall participate in continuing education as necessary to maintain licensure, professional competence and skills commensurate with the standards of the medical community and as otherwise required by the medical profession.
2.5 Programs. Contractor shall participate in and abide by any quality assurance, grievance procedure, peer review, utilization management, confidentiality or credentialing programs and systems which Company may establish and maintain.
SECTION III.
ADMINISTRATIVE OBLIGATIONS
3.1. Work for Hire. It is the intention of the parties hereto that all rights, in any reports, surveys, marketing promotional and collateral materials prepared by the Contractor pursuant to the terms of this Agreement, or otherwise for Company (hereinafter the Work) vest in Company. The parties expressly acknowledge that the Work was specially commissioned by Company, and Company is entitled, as author to all rights therein.
3.2. Use of Facilities. Contractor shall not use any part of Companys facilities for any purpose other than the performance of Professional Services or other duties and obligations set forth in this Agreement.
3.3. Administrative Compliance. Contractor shall cooperate and comply with the policies and procedures of Company, Hospital and Nursing or Convalescent Homes applicable to patient relations, scheduling, billing, collections and other administrative matters, and shall cooperate with efforts to bill and collect fees for Professional Services rendered by Contractor.
3.4. Notification of Certain Events. Contractor shall notify Company in writing within twenty-four (24) hours after the occurrence of any one or more of the following events:
(a) The medical staff membership or clinical privileges of Contractor at any hospital are denied, suspended, restricted, revoked or voluntarily relinquished;
(b) Contractor becomes the subject of any suit, action or other legal proceeding arising out of the professional services rendered by Contractor;
(c) Contractor is required to pay damages or any other amount in any malpractice action by way of judgment or settlement;
(d) Contractor becomes the subject of any disciplinary proceeding or action before any states medical board or similar agency responsible for professional standards or behavior;
(e) Contractors loss, either temporarily or permanently, of any governmental license reasonably considered by Company to be essential to the performance of Contractors duties;
(f) Contractor becomes incapacitated or disabled from practicing medicine; or
(g) Any act of nature or any other event occurs which adversely affects Contractors ability to perform the Services.
SECTION IV.
INJUNCTIVE RELIEF
4.1 Injunctive Relief. Contractor acknowledges that the injury to Company resulting from any violation by it, of any of the covenants contained in this Agreement will be of such character that it cannot be adequately compensated by money damages, and, accordingly, Company may, in addition to pursuing its other remedies, obtain an injunction from any court having jurisdiction of the matter restraining any such violation; and no bond or other security shall be required in connection with such injunction.
SECTION V.
COMPENSATION AND BENEFITS
5.1 Compensation. In exchange for Contractors performance of the Services under this Agreement, Company shall pay to Contractor the compensation in the amount, manner and method of payment set forth below. Contractor shall seek and obtain compensation for the performance of the Services only from Company, and Contractor shall not bill, assess or charge any fee, assessment or charge of any type against any other person or entity. Company shall have the sole and exclusive authority to bill and collect for all services performed by Contractor pursuant to this agreement. Contractor hereby assigns to Company all present and future rights of Contractor in connection with the services provided by Contractor pursuant to this Agreement.
(a) Contractor will be paid $10,000.00 per month for the medical services provided. Contractor will also receive 50% of all collections above $300,000.00 during the contract year.
(b) Upon termination of this Agreement, Contractor expressly understands and agrees that Companys sole obligation shall be to pay Contractor for Services rendered and any authorized expenses as of the date of termination.
5.2 Employee Benefits. Company shall provide to Contractor employee benefits as follows:
1. Malpractice insurance.
2. Health insurance.
3. Two (2) week vacation per year (on anniversary).
4. One (1) week for CME. Contractor must complete at least 25 hours of CME per year.
5. Six (6) days sick leave per year.
SECTION VI.
6.1 Duty to Report Income. The Contractor acknowledges and agrees that it is an independent contractor and not an employee of the Company and that it is Contractors sole obligation to report as income all compensation received from Company pursuant to this Agreement. The Contractor further agrees that the Company shall not be obligated to pay withholding taxes, social security, unemployment taxes, disability insurance premiums, or similar items, in connection with any payments made to the Contractor pursuant to the terms of this Agreement. Contractor will receive a yearly IRS form 1099 from Company.
SECTION VII.
TERM OF AGREEMENT
7.1 Term. This Agreement shall be effective beginning 15th of July, 2001 and shall continue until 15th of July, 2002; provided, however, that either Company or Contractor may terminate this Agreement in whole or in part at any time upon sixty (60) days written notice to the other party. The parties must renegotiate terms and salary sixty (60) days prior to the expiration of this contract otherwise the contract will automatically renew under the same terms and conditions.
7.2 Termination by Company. Company shall have the right to terminate this Agreement at any time upon the occurrence of any one or more of the following events:
(a) Breach of this Agreement by Contractor where such breach is not corrected within thirty (30) calendar days after Company gives written notice of such breach to Contractor;
(b) Death, incapacity or permanent disability of Contractor;
(c) Contractors voluntary retirement from the practice of medicine;
(d) Contractor commits an act of dishonesty, fraud, misrepresentation or other acts of moral turpitude;
(e) Contractors loss, either temporarily or permanently, of any governmental license reasonably considered by Company to be essential to the performance of Contractors duties;
(f) Neglect of professional duty by Contractor in a manner that violates Companys or the Medical Staffs policies, rules and regulations; or
(g) Contractor is rendered unable to comply with the terms of this Agreement for any reason.
7.3 Termination by Contractor. Contractor shall have the right to terminate this Agreement at any time upon the occurrence of any one or more of the following events:
(a) Breach of this Agreement by Company where such breach is not corrected within thirty (30) calendar days after Contractor gives written notice of such breach to Company; or
(b) Company is rendered unable to comply with the terms of this Agreement for any reason.
7.4 Termination or Modification in the Event of Government Action.
(a) If the Parties receive notice of any Government Action, the Parties shall attempt to amend this Agreement in order to comply with the Government Action.
(b) If the Parties, acting in good faith, are unable to agree to the amendments necessary to comply with the Government Action, or, alternatively, if either Party determines in good faith that compliance with the Government Action is impossible or infeasible, this Agreement shall terminate ten (10) calendar days after one Party notices the other of such fact.
(c) For the purposes of this Section, Government Action shall mean any legislation, regulation, rule or procedure passed, adopted or implemented by any federal, state or local government or legislative body or any private agency, or any notice of a decision, finding, interpretation or action by any governmental or private agency, court or other third party which, in the opinion of counsel to Company, if or when implemented, would, as a result in the arrangement between the Parties pursuant to this Agreement:
(1) Prevent Contractor from being able to access and use the facilities of Company, Hospital or any Affiliate of Company, Hospital, or Convalescent Home;
(2) Constitute a violation of 42 U.S.C. Section 1395nn (commonly referred to as the Stark law) if Contractor referred patients to Company, Hospital or any Affiliate of Company, Hospital, or Convalescent Home;
(3) Prohibit Company, Hospital or any Affiliate of Company, Hospital, or Convalescent Home from billing for services provided to patients referred by Contractor; or
(4) Subject Company, Hospital, Contractor or any Affiliate of Company, Hospital, Convalescent Home, or any of their respective employees or agents, to civil or criminal prosecution on the basis of their participation in executing this Agreement or performing their respective obligations under this Agreement.
(d) For the purposes of this Section, Affiliate shall mean any organization which, directly or indirectly, controls, is controlled by, or is under common control with Company, Hospital, or Convalescent Home, whichever is applicable.
7.5 Rights Upon Termination. Upon any termination or expiration of this Agreement, all rights and obligations of the Parties shall cease except those rights and obligations that have accrued or expressly survive such termination.
7.6 Return of Property. Upon any termination or expiration of this Agreement, Contractor shall immediately return to Company or Hospital, whichever is applicable, all of Companys or Hospital's property, including Companys or Hospital's equipment, supplies, furniture, furnishings, files and patient lists, which is in Contractors possession or under Contractors control.
7.7 Medical Records. All patient records, charts and files for patients of Company treated or examined by Contractor shall be and shall remain the property of Company. Upon any termination or expiration of this Agreement, Contractor shall not be entitled to keep or preserve any such records, charts and records provided, however, that any patient may specifically request a copy of his/her records to be provided to Contractor at Contractors cost. In no event shall Contractor be entitled to the records, charts or files of patients not specifically treated by Contractor while contracted with Company.
SECTION VIII.
8.1 Indemnification. The Contractor shall indemnify and save Company harmless from and against all claims arising in favor of any person, firm or corporation on account of personal injury, medical malpractice, or property damage in any way resulting from the improper or illegal acts of Contractor, its employees or agents. The foregoing indemnity shall include all costs incurred by Company, including reasonable attorneys fees.
SECTION IX.
RELATIONSHIP BETWEEN THE PARTIES
9.1 Non-Competition. Contractor shall not engage or participate in any business that is competitive in any manner whatsoever with the business of Company, or, directly or indirectly, render any professional or administrative services to any person or organization (except Company), whether as a partner, shareholder, officer, director, employee, contractor or otherwise, except in the event of an emergency or the prior written consent of Company. Contractor further agrees that after termination or expiration under this Agreement that Contractor will not open a medical practice or be associated as an owner in any medical practice within ten (10) miles in any direction of companys current office.
9.2 Prohibition Against Solicitation. Contractor covenants and agrees that, for a period of two (2) years immediately following any termination or expiration of this Agreement, he/she will not directly or indirectly call on, solicit or attempt to call on or solicit any of Companys patients, either for himself/herself or for any other person, firm, or corporation. Contractor also covenants and agrees that, for a period of two (2) years immediately following any termination or expiration of this Agreement, he/she will not employ, hire or retain, or attempt to employ, hire or retain, any person who was an employee or independent contractor associated with Company at any time during one (1) year preceding the termination or expiration of this Agreement.
9.3 Trade Secrets. During the term of this Agreement, Contractor will have access to and become acquainted with confidential information and trade secrets of Company, including information and data relating to payor contracts and accounts, clients, patients, patient groups, patient lists, billing practices and procedures, business techniques and methods, strategic plans, operations and related data (collectively, Trade Secrets). All Trade Secrets are the property of Company and used in the course of Companys business, and shall be proprietary information protected under the Uniform Trade Secrets Act. Contractor shall not disclose to any person or entity, directly or indirectly, either during the term of this Agreement or at any time thereafter, any Trade Secrets, or use any Trade Secrets other than in the course of providing medical services under this Agreement. All documents that Contractor prepares, or Trade Secrets that might be given to Contractor in the course of providing medical services under this Agreement, are the exclusive property of Company, and, without the prior written consent of Company, shall not be removed from Companys premises. This provision shall survive termination of this Agreement.
9.4 Equitable Relief. Contractor hereby acknowledges that the breach by Contractor of any provision of this Article would result in irreparable harm to Company, the amount and nature of which cannot be reasonably or adequately compensated for in monetary damages. Contractor therefor agrees that Company, in addition to any rights or remedies which Company may possess, shall be entitled to injunctive and other equitable relief to prevent or remedy a breach by Contractor of any provision of this Article.
SECTION X.
GENERAL PROVISIONS
10.1 Amendment. This Agreement may be modified or amended only by mutual written agreement of the Parties. Any such modification or amendment must be in writing, dated, signed by the Parties and attached to this Agreement.
10.2 Dispute Resolution. In the event of any controversy or dispute related to or arising out of this Agreement, the Parties agree to meet and confer in good faith to attempt to resolve the controversy or dispute without an adversary proceeding. If the controversy or dispute is not resolved to the mutual satisfaction of the Parties within five (5) business days of notice of the controversy or dispute, the Parties agree to waive their rights, if any, to a jury trial and pre-trial discovery, and to submit the controversy or dispute to a retired judge or justice pursuant to Section 638(1) of the California Code of Civil Procedure, or any successor provision, for resolution in accordance with Chapter 6 (References and Trials by Referees), of Title 8 of Part 2 of the California Code of Civil Procedure, or any successor chapter. The Parties agree that the only proper venue for the submission of claims is the County of San Diego, California, and that the hearing before the referee shall be concluded within nine (9) months of the filing and service of the complaint. The Parties reserve the right to contest the referees decision and to appeal from any award or order of any court.
10.3 Assignment. Except for assignment by Company to an entity owned, controlled by, or under common control with Company, neither Party may assign any interest or obligation under this Agreement without the other Partys prior written consent. Subject to the foregoing, this Agreement shall be binding on and shall inure to the benefit of the Parties and their respective successors and assigns.
10.4 Attorneys Fees. If either Party brings an action for any relief or collection against the other Party, declaratory or otherwise, arising out of the arrangement described in this Agreement, the losing Party shall pay to the prevailing Party a reasonable sum for attorneys fees and costs actually incurred in bringing such action, including fees incurred in arbitration, at trial, on appeal and on any review therefrom, all of which shall be deemed to have accrued upon the commencement of such action and shall be paid whether or not such action is prosecuted to judgment. Any judgment or order entered in such action shall contain a specific provision providing for the recovery of attorneys fees and costs incurred in enforcing such judgment. For the purpose of this Section, attorneys fees shall include fees incurred in connection with discovery, post judgment motions, contempt proceedings, garnishment and levy.
10.5 Choice of Law. This Agreement shall be construed in accordance with and governed by the laws of the State of California.
10.6 Compliance With Laws. Contractor shall comply with all applicable laws, ordinances, codes and regulations of federal, state and local governments.
10.7 Confidentiality. Neither Party shall disclose this Agreement or any of its terms to any person or entity, other than its attorneys and accountants, without the prior written consent of the other Party, unless and only to the extent such disclosure is required by law.
10.8 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument.
10.9 Entire Agreement. This Agreement is the entire understanding and agreement of the Parties regarding its subject matter, and supersedes any prior oral or written agreements, representations, understandings or discussions between the Parties. No other understanding between the Parties shall be binding on them unless set forth in writing, signed and attached to this Agreement.
10.10 Exhibits. The attached exhibits, together with all documents incorporated by reference in the exhibits, form an integral part of this Agreement and are incorporated into this Agreement wherever reference is made to them to the same extent as if they were set out in full at the point at which such reference is made.
10.11 Force Majeure. Neither Party shall be liable for nonperformance or defective or late performance of any of its obligations under this Agreement to the extent and for such periods of time as such nonperformance, defective performance or late performance is due to reasons outside such Partys control, including acts of God, war (declared or undeclared), action of any governmental authority, riots, revolutions, fire, floods, explosions, sabotage, nuclear incidents, lightning, weather, earthquakes, storms, sinkholes, epidemics, or strikes (or similar nonperformance or defective performance or late performance of employees, suppliers or subcontractors.)
10.12 Headings. The headings in this Agreement are intended solely for convenience of reference and shall be given no effect in the construction or interpretation of this Agreement.
10.13 Notices. All notices or communications required or permitted under this Agreement shall be given in writing and delivered personally or sent by United States registered or certified mail with postage prepaid and return receipt requested or by overnight delivery service (e.g., Federal Express, DHL). In each case, notice shall be delivered or sent to:
If to Company, address to:
.
If to Contractor, address to:
.
10.14 Severability. If any provision of this Agreement is determined to be illegal or unenforceable, that provision shall be severed from this Agreement, and such severance shall have no effect upon the enforceability of the remainder of this Agreement.
10.15 No Third-Party Beneficiary Rights. The Parties do not intend to confer and this Agreement shall not be construed to confer any rights or benefits to any person, firm, group, corporation or entity other than the Parties.
10.16 Waiver. No delay or failure to require performance of any provision of this Agreement shall constitute a waiver of that provision as to that or any other instance. Any waiver granted by a Party must be in writing to be effective, and shall apply solely to the specific instance expressly stated.
The parties have executed this Agreement on the date first above written.
Dated: _________________ COMPANY
MD., Inc.
President
Dated: ___________________ CONTRACTOR
Name: Dr..
Title: Medical Doctor
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Looks pretty standard to me. Face it, when you contract as an employee you get screwed. Doctors are very good at screwing each other.
Reply PM
Take a look at www.SemmelweisSociety.net.
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Mark my words...DON'T SIGN IT!!!
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No I did not sign it of course!
Wanted to show everyone what to look out for these days.
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If any one of you young dr.'s see a contract like that, if it is long, wordy, and you think the nice, friendly Dr. you are going to sign with won't hold you to every damn word, think again. Do NOT sign a piece of garbage like this. I had a contract put before me that demanded a life insurance policy on MY life naming the Dr. as the beneficiary!! And he was 65! I should have gotten one on him naming me for god's sake. Damn old POS Dr.'s. Get out and retire you old jerks. You've made enough.
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The contract probably violates the IRS description of an independent contracter. It sets hours, describes specific job requirements, sets vacation time, provides a salary, etc. Its legal, but the employer could be required to pay 1/2 of social security taxes. Of course it shouldn't be an issue, because no one should sign it!
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In many if not all states, the Bar association prohibits noncompetes in employment contracts for lawyers. It is considered an unethical practice.
Isn't it amazing that we cannot do the same thing in medicine?
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Let's write a good contract as a model to be published here.
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unfortunately this is quite a familiar contract but since this guy has "humans'
all over the place, sugeest you either negotiate higher money or set a limit to the number of patients you will see in each nursing home. You still need to let a lawyer
go through the contract. Yes, they do charge.
Good luck.
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That is milddly put. They kill the other for their own survival. They get nervous when a new doctor comes to town and they rejoice when
a doctor leaves town, The thought that the community may loose a certain service certainly does not appear to be a concern to them.
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there is in medicine. Look in the State Medical Board Law. IN ALABAMA non-compete law are illegal and not enforceble.
I advise you guys-look at the State law. Your employer could not care less.They will put it in even if it is against that law.
so check it out!!
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This is true.
About half a dozen states have statutes on the books, voiding noncompetes in medical employment contracts. However, that leaves 40-some states where noncompetes are legal to varying degrees.
In some states, noncompetes are legal to incredible distances and times. Other states, a judge will have to judge what's fair. You can pay tens of thousands to find out that judge's opinion.
Also, it is true that less-than-ethical employers, in states where noncompetes are clearly illegal, tested in court and all that. Such employers may put noncompetes in contracts anyway, hoping the new employee will not know that, or will not go to the trouble to contest the illegal contract clause.
After all, there is (usually) no penalty for putting such a clause in the contract. Morally and ethically, they are of a kind with HMO, insurance, and hospital administrators. Insurance plans, for example, will often deny a claim for no reason, just to delay payment, and knowing that every so often, a doc will fail to notice the rejection.
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Thanks much for all the input , I did not sign it and my response was wagging the middle finger. I suppose this is what a "standard" contract is these days. Poor new recruits that by necessity have to sign out on these slavery contracts. Others should post their own so that we may give input.
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Remember, ther is no such thing as a "standard" contract.
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TERMINATION CLAUSE GIVING THE EMPLOYER RIGHT TO EXCERCISE THEIR RIGHT TO DO SO SHOULD REQUIRE A STIFF FINANCIAL PENALTY PAYABLE IN CASH TO THE PHYSICIAN. IF FOR ANY REASON THE EMPLOYERS TERMINATE BEFORE THE STATED PERIOD THEY SHOULD PAY. ONLY $ CAN MAKE THEM RETHINK THEIR ADVERSE ACTIONS.
ALL PRIVILIGE GRANTING HOSPITALS MUST BE REQUIRED BY CONTRACT TO AGREE TO DUE PROCESS PROVISIONS INCASE OF ANY CREDENTIALLING REVIEW OR INCASE OF ANY "COMPLAINTS".
THE PRESENT hEALTHCARE QUALITY IMPROVEMENT ACT 1986 ENABLES HOSPITAL BOARDS TO UNILATERALLY PULL ANY PRIVILEGES. sHAM DUE PROCESS BY THE 'GOOD OLE BOY" JUNTAS HAVE DESTROYED MANY LIVES ABUSING THIS LAW. JCAHO HAS QUIETLY WINKED AND NODDED TO SUCH ABUSIVE PRACTICES.
WWW.PEERREVIEW.ORG
cENTER FOR pEER REVIEW JUSTICE
uNION OF aMERICAN pHYSICIANS AND dENTISTS
FOR MORE INFO
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I would add "Subject to approval of other partners" at the end of contract. This way, in case things goes wrong, you can back out anytime and just say "My partner does not like the contract".
Your partner can be your wife.
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Why haven't you sought legal representation for review prior to signing? Understandably, it is not cheap but neither are the legal battles you may be accepting by signing such a contract.
I'm currently going contract negotiations and wouldn't consider signing without review by an appropriate legal professional. Do yourself a favor--stick to medicine and let the lawyers do what they do best.
Best of luck!
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Agree with above.
The most expensive advice is a free advice.
