The Great Resignation is a great opportunity to renegotiate physician employment contracts [PODCAST]

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“There are numerous ways your contract (and your life) can be made better. If you do not want to do it for yourself, do it for your patients. A burned-out physician will not give those patients the same quality of care as a reasonably rested physician would give. For the sake of your patients, please renegotiate your contract!”

Dennis Hursh is a veteran attorney with over 40 years of experience in health law. He is founder, Physician Agreements Health Law, which offers a fixed fee review of physician employment agreements to protect physicians in one of the biggest transactions of their careers. He can also be reached on Facebook and LinkedIn.

He shares his story and discusses his KevinMD article, “The Great Resignation is a great opportunity to renegotiate physician employment agreements.”

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Hosted by Kevin Pho, MD, The Podcast by KevinMD shares the stories of the many who intersect with our health care system but are rarely heard from.

Transcript

Kevin Pho: Hi, and welcome to the show, where we share the stories of the many who intersect with our health care system but are rarely heard from. My name is Kevin Pho, founder and editor of KevinMD. Rate and review the show at KevinMD.com/rate. Subscribe at KevinMD.com/follow. Today we welcome back on the show Dennis Hursh. He is a physician contract lawyer, and his most recent KevinMD article is titled “The Great Resignation is a great opportunity to renegotiate physician employment agreements.” Dennis, welcome back to the show.

Dennis Hursh: Thank you, thank you. It’s good to be here.

Kevin Pho: So let’s jump straight into that article. And for people who didn’t listen to our first episode together, I certainly recommend reviewing that. Your latest article is titled “The Great Resignation is a great opportunity to renegotiate physician employment agreements.” Now, walk us through that article and share the story of why you decided to write it.

Dennis Hursh: Well, fortunately, I’m seeing it all the time. With the Great Resignation, physicians are being pushed so very hard. I’m seeing, just anecdotally, several of my clients, and I’m calling them senior physicians, but some of these people are 50 years old, who are just burned out, can’t take it anymore, and are resigning. Well, what that means is it’s very hard to recruit physicians, so the remaining physicians take up the slack, and I’ll put that in air quotes. The slack being the schedule that burned out the person that left. So it’s like a snowball. It just keeps getting harder and harder for the remaining physicians to do it.

For any other profession, you wouldn’t need to write this article, but for physicians, you need to tell them now is a time to consider renegotiating your contract. Physicians are so focused on their patients. Everything they worry about is taking care of their patients, and as they’re working harder and harder to do that, it’s killing them. So what I tell physicians is, “Don’t do it for yourself. Do it for your patients.” A burned-out physician is not going to give the same quality of care. The person that went into medicine to help people, that person tends to be gone now and is running on the assembly line. So I really think you owe it to your patients to get a decent life for yourself. And as I said, your position couldn’t be stronger now. It’s very hard to recruit physicians, and physicians are working so hard.

So you talk about, what can you do? I mean, the simple answer is everything. I think everything in your contract should be open for negotiation. If burnout is a significant issue, I think the first thing I’d be looking at is patient contact hours. I’ve never negotiated contracts with 32 patient contact hours per week. I mean, that’s common in academics, but I’m seeing it more and more in just non-academic practices too. And I don’t have to tell you, with 32 patient contact hours per week, you’re still going to be working a lot more than 40 hours a week, but it sure would be nice if you came in Friday and did the EHR and all the administrative stuff you have to do.

One of those physicians that I talked about was planning on working into his 70s. I think he ended up retiring at 60. He was telling me he was working more than 40 patient contact hours per week. Then he would work on the EHR until it was time to go home. He’d grab a quick dinner, work on the EHR until 11 or 12 at night, and then wake up the next morning and do it again. That was a reason he just said, “That’s it. I’m out of here.” So patient contact hour limitations would have been great for him, just so you have time.

I think the second thing I’d want to focus on is call. And you say, “Well, there’s only four physicians here. I’ve got to do one in four.” But there is a concept called locum tenens, and if you really insist on reasonable call limitations, the employer may have to pay money to bring in a locum tenens to do call. And again, it’ll be a qualified physician. Your patients will get good care. But most importantly, your patients are going to get a physician who’s appropriately rested and can really focus on what they need. So I think those two are the first things I would focus on.

To the extent the employer isn’t willing to do that, then I think, as a definite secondary issue, you start looking at money. A lot of people started working for an employer years ago, and their income maybe has been bumped up by dribs and drabs over the years. It might be time to get an MGMA, Medical Group Management Association, compensation analysis and see if, with your years of training and where you’re working, you are still being appropriately compensated. And maybe not. So at least you can get paid more while you’re getting killed.

I think a very simple thing for an employer to do is a retention bonus. Bear in mind, if you went to a new job, they would give you a sign-on bonus. If they have to replace you, they’re going to pay that physician a sign-on bonus. So it’s just a lot easier for everybody if they would just give that to you at the end of the contract year, give you a retention bonus. And again, there’s a lot of things we can do for more money, but I can’t emphasize enough, I think the first two things I’d be looking at are patient contact hours and call. Money won’t really help the burnout. Maybe you’ll just die richer or be able to retire sooner.

But another thing that a lot of physicians aren’t seeing, and it’s kind of crept up on them with the Great Resignation, is call coverage. MGMA also has benchmarks that say, for a physician in your specialty, this is the median unpaid on-call hours per week. If you’re doing more call than that, the MGMA benchmarks give you benchmarks for how much you should be getting paid for the excessive call. So there’s a lot of things you can look at, but I think those are the big things. And again, I can’t emphasize enough that you have to look out for yourself. You’re looking out for your patients by looking out for yourself.

Finally, probably the last thing you want to look at is productivity compensation. Once again, MGMA has benchmarks for wRVUs and collections and other things, so if you’re exceeding those benchmarks, then you should be paid appropriately for doing it. If you’re in a private practice, you probably want to consider talking about potential partnerships sooner. They’re in the same position as hospitals. Maybe they don’t have the same amount of money. They’re stressed, but they can at least talk about bringing you into a partnership. So I think those are the biggest things. But if you look at your contract and say, “What should I negotiate?” honestly, right now, my answer is everything. You’re in an awesome position.

Kevin Pho: Now, one of the things that you said to start this off was that you’re seeing more and more physicians burn out because of the increased requests that are asked of them. What are some typical examples that you’re seeing hospital systems ask their physicians to do during this Great Resignation period?

Dennis Hursh: Well, the thing is, “We’ve got these patients, and they’re scheduled for Dr. Smith three months in advance. Well, we’re not going to tell those patients to go home. We’re going to somehow stick them into your schedule.” So I see physicians that maybe have office hours from 8 to 4, but at 4 o’clock, they’ve got 12 people sitting in the waiting room. They’re just overbooking them. And the thing is, you can do that with a physician. You couldn’t do that with a unionized worker or anything, but a physician is not going to say, “It’s 4 o’clock. I’m out of here.” A physician’s going to stay and do his or her very best to treat all the patients that are waiting for him or her. So I see that.

Again, call coverage is getting multiplied, because if there were seven physicians and now there’s five, those five are going to cover the same call schedule that the seven were before. And those, I think, are the biggest things that I’m seeing. As I said, hospitals especially view it as taking up the slack, and you have to remember that the slack was the schedule that burned out one physician already, and they’re piling that on the physicians that probably have the same schedule as the person that left did.

So it’s just, as I said, in health care. In any other system, rationally, you would expect physicians to become so much more valuable as the supply decreases, but health care doesn’t work like that. They’re just keeping you: “Hey, we really appreciate all the extra work, and we appreciate you’re not sleeping much, and thanks. Here’s a free coffee in the cafeteria to show our appreciation.”

Kevin Pho: So let’s say I’m a physician who’s listening to this podcast, listening to you, and what you’re saying is really resonating. Physicians, like you said, often don’t push back, right? They often just take the extra work. Now, what are the immediate next steps they should take if they do want to do some of the things that you suggest and start renegotiating the contract?

Dennis Hursh: It depends. A lot of it depends on if you have a restrictive covenant. If you’ve got kids in school, if you’re really kind of stuck with staying here or moving out of town, I would take a more gentle approach and say, “Look, I’m really burned out. I just don’t think I can do this anymore. We need to make some changes. Can you help me?” rather than a real in-your-face kind of request.

And I think you just have to say, “Look, let me tell you my call schedule. I’m not sure you’re aware of my call schedule. I’m not sure if you’re aware of the amount of patients I’m seeing. I’m not sure you’re aware that I’m working 70 hours a week, maybe 45 patient contact hours, and then spending time on the EHR.” So I would treat it as if you’re educating them. And of course, the CEO knows very well. It’s like, “Yeah, that’s why I’m getting this big bonus. We’re getting real value out of you, and that’s going to decrease my bonus.” But I would do it as almost, not a pathetic cry for help, but, “I need you to know I can’t keep this up. We need to do something.” I think that’s the first step.

Now, I’ve had some people that are just at the point where they say, “Look, I’ve got enough money.” The nuclear approach would be to say, “Here’s my termination without cause notice. I’m willing to stay, but we need to make changes.” And again, if you’re that burned out and ready to move out, that’s certainly a powerful negotiating tool. But I usually recommend doing it collaboratively at first: “Maybe you don’t realize how burned out I am. Can you help me? We need to address some issues.” And then, once it’s on the table, I think everything’s on the table. Once we’ve agreed to renegotiate, everything’s on the table.

Kevin Pho: Now, is this something a physician himself or herself can do, or do they need to hire someone like yourself, like a contract attorney, too?

Dennis Hursh: Well, obviously, I’m biased, and I would say, “Oh, everybody needs an attorney.” But I think at least if you know what you really want, and if what you really want is patient contact hours or less call coverage, I think you can do that yourself and just say, “Look, I’ll tell you the truth. I’m worried about my patients, because I’m not sure I can continue to do the same high quality of care. Can you change my contract to give me reasonable patient contact hours and reasonable call?” If that’s what you’re looking for and that does it, you can probably do that on your own. I think if you want to do a full reboot, “OK, here’s the whole contract. Let’s go through paragraph one, paragraph two, paragraph three,” that’s where I think a contract attorney can really help you.

Kevin Pho: So tell me some case studies, they could be hypothetical, of responses from hospital systems to physicians who do exactly what you said. Maybe some success stories and maybe some stories where they were not as successful. So tell us a spectrum of what can happen next in terms of the hospital response.

Dennis Hursh: Well, I think worst case is, “We have a contract. Have a nice day. Get out of my office.” I’ve had one where we did a complete renegotiation of the contract, and we didn’t get everything. I mean, it’s always hard to ask for the change in the covenant not to compete when you’re in the situation of saying, “I’m not happy here.” That’s not a good time to ask for a change in your covenant not to compete. But we got a lot of things. We got reduced patient contact hours. We only got it to 36, but that was significant, because the physician was working a lot more than 40 patient contact hours, so the physician was very happy with that. Call coverage payment: We didn’t get reduced call, but we got pretty significant income for call coverage. And we got, as I recall, about a $35,000 retention bonus. So to me, that was a win, because we reduced a lot of the pressure that was on the physician, and we got the physician more money.

As I said, I did have one where he went into the office, and they just said, “No, you have a contract. Forget it,” which I think was crazy. Incidentally, that physician resigned, and so they could have probably saved themselves a lot of money by making that physician happy. But they just played hardball, and he did too, and that was the end of that.

And in between, I’ve had some where we couldn’t get patient contact hours changed. We couldn’t get call, but we did get call compensation. We almost always get a retention bonus. I mean, pretty much, that’s easy for a CEO, and it’s chicken feed, $25,000. Throw $25,000 out, and that’s easy for them. So we’ve gotten that pretty much; in most of the negotiations, we’ve gotten retention bonuses. So there’s really nothing to lose. As I said, the worst case is you go in and they say, “We have a contract. We’re not changing it.” And then you’re in the same place you were the day before. So I don’t see there being a downside to doing this.

Kevin Pho: So let’s zoom out. Given the Great Resignation and the physician shortage, and how difficult it is for hospital systems to recruit physicians, is that affecting how flexible hospital systems are when it comes to negotiating physician contracts? Do you find that they’re more flexible now than they were, say, back three to five years ago?

Dennis Hursh: I am finding that it’s harder, and it’s particularly because the reason you’re in there is because they’ve lost physicians. So this isn’t a hypothetical, “Hey, around the country, people are leaving.” It’s usually going in and saying, “Hey, our seven-person department is now five, and we’re doing the same call, and we’re seeing the same patient volume, and we can’t keep it up.” So yeah, I am finding that they are a lot more responsive to talking to you. Again, opening up the whole contract and renegotiating, that’s a different story, but they’re definitely more willing to talk to you.

Kevin Pho: We’re talking to Dennis Hursh. He is a physician contract lawyer. His latest KevinMD article is titled “The Great Resignation is a great opportunity to renegotiate physician employment agreements.” Dennis, what are some of your take-home messages that you want to leave with the KevinMD audience?

Dennis Hursh: Do it for your patients. Don’t do it for yourself. I understand that you live for your patients. Your patients are not being served well by a burned-out physician, so take care of yourself. At least approach the employer about renegotiating your contract. Again, the first things to look for, I think, are patient contact hours and call coverage, because that’ll really impact your burnout. And don’t be afraid to renegotiate. There are people like me that’ll do it for you, and there’s also a new course that just came out from The Happy MD on renegotiating a contract, so you can educate yourself and do it yourself if you want. But by all means, try to get better. Your patients deserve better.

Kevin Pho: Dennis, thank you so much for sharing your time and insight. Thanks again for coming back on the show.

Dennis Hursh: Oh, it’s my pleasure.

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