It is inevitable that, at some point in your career, you will need to hire a healthcare attorney. Proper representation is the best way to ensure a positive outcome in any situation.
Physicians often consider tackling certain issues on their own to reduce costs and avoid complicating matters. However, there are at least five situations in which you must retain an experienced healthcare attorney, or you could end up underpaid, subject to overreaching restrictive covenants, severely fined, or responsible for a large settlement.
1. Negotiating an Employment Contract
Whether you are considering a position as an employee of a physician group, hospital, or health system, it is critical that you understand the employment agreement presented to you so you can be sure it is fair and represents your best interests. The agreement itself defines the scope and conditions of your employment and consequently impacts your personal and professional satisfaction. It usually contains confusing legal terminology, such as noncompetition and nonsolicitation clauses. If you do not understand these terms, problems may arise in the future regarding your rights and capabilities upon termination of employment.
For these reasons, it is critical to engage a healthcare attorney who is well-versed in physician employment agreements. At a minimum, an attorney can confirm whether the compensation offered is comparable to that of physicians with similar experience and skills in your geographical area. The attorney can decipher confusing bonus compensation and may be able to negotiate more favorable terms. The same is true of understanding the benefits offered and establishing your call coverage.
An attorney will be able to advise you when it is appropriate to push back and request additional benefits or propose more favorable changes to your call coverage. Most important, the attorney will clarify the term of the employment agreement, the corresponding termination provisions, and any restrictions on your ability to practice upon termination of the agreement. Although the ultimate decision to accept the employment offer rests solely with you, an experienced healthcare attorney can help you understand the agreement and give you confidence in that decision.
2. Leaving a Practice for New Opportunities or Retirement
Whether you decide to leave a practice to pursue a new opportunity or because you are retiring, it is critical that you engage a healthcare attorney to help you navigate this road. If you are leaving to pursue new opportunities, an attorney can help you understand any restrictive covenants that may apply upon your departure and who retains ownership of the medical records of patients you treated while employed by the practice. In addition, you’ll be assisted in drafting any required notifications to patients alerting them of your departure.
If you are leaving the practice due to retirement, there are additional concerns. If you own the practice, you will need to decide whether to sell the practice or wind it down. If you decide to sell, an attorney can help you negotiate a favorable merger agreement and file any required change of ownership forms. If you choose to wind down your practice, your employee agreements and service and vendor contracts, including managed care participation agreements, will need to be reviewed for specific termination and notice requirements.
As with departure from a practice, there are certain notifications that must be issued to your patients detailing the closure of your practice and addressing patient options for continuity of care. An attorney can draft such notifications for you and, in addition, will be able to assist with notifying your malpractice carrier of your retirement and ensuring you have proper continuing coverage.
Finally, an attorney can arrange custody of your medical records in accordance with applicable state record retention requirements, help wind down your financial matters, and terminate your practice’s professional entity.
3. Practice Mergers
Engaging a healthcare transaction attorney protects your investment in your practice and in the practice with which you decide to merge. Healthcare mergers, due to the complex rules and regulations governing the industry, are uniquely complicated. A traditional business lawyer with merger experience likely will not understand regulations that solely impact healthcare mergers, which can lead to regulatory fines and penalties.
Therefore, if you are considering merging your practice, it is critical that you engage an attorney who is highly experienced in the legal implications of healthcare transactions and who has a deep understanding of the Anti-Kickback Statute, Stark Law, and other applicable regulations. Doing so is the only way to ensure compliance with healthcare rules and regulations.
4. Payor Audits
The number of payor audits is increasing dramatically. Payor audits can involve Medicare, Medicaid, or third-party payors. When an audit notice is received, there often is a limited time period to respond. Therefore, it is imperative that you engage an experienced healthcare attorney upon receipt of such a notice to draft a professional response to the audit request and help you gather the requested documents in accordance with the time frames specified in the notice.
In addition, an attorney can address procedural, legal, or factual flaws in the auditor’s position, which can prevent repayment of significant monetary penalties and suspension or revocation of billing privileges.
5. Malpractice Allegations
Without question, if you are subject to a medical malpractice lawsuit, you absolutely must retain an experienced healthcare attorney. Your insurance company will usually hire one for you, but that is not always the case.
Medical malpractice cases are extremely complicated. To prevail, you need an attorney who not only understands the law but also the practice of medicine. A healthcare attorney will not only know what litigation filings are required but will be able to arrange expert witnesses to help prove that you acted in accordance with professional standards.
It is critical that an experienced healthcare attorney be hired to help manage these situations and many more. There is no better way to protect the professional and personal interests you have worked so hard to build. TH