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Our continued blog series on why physicians should seek legal review of their employment contract....
9. Ensure Your Right to Access Information During and After Employment:
Physician employment contracts are typically very comprehensive, addressing just about each and every issue that could potentially surround or arise out of a physician’s employment. As such, the attorneys that draft physician employment agreements on an employer’s behalf work very hard to cover all bases so that no loose ends remain, regardless of how the employment relationship ends.
From an employer’s standpoint, having a comprehensive employment contract that protects all employer interests is the ultimate goal. Unsurprisingly, an important part of this is ensuring that the employer’s confidential information and documents are protected. Therefore, a provision that we see in just about every single employment contact that we review is one that addresses documents and patient medical records. More often than not, the applicable language will read something like this:
All patient records, documents, reports, notes, forms, recordings and information are the exclusive property of Employer. All such documents and memoranda kept or made by Employee during the course of her employment and related directly or indirectly with the business of Employer or duties of Employee with Employer shall remain the property of Employer and shall be returned to Employer upon termination of this agreement for any reason.
While these provisions are entirely understandable and reasonable, they can always be made more favorable to the physician-employee. Physicians often do not realize that they may require access to such documents and information following the term of their employment for a variety of reasons. For instance, if a malpractice claim arises, the physician will require certain documents in order to defend herself. For this reason, we always advise the inclusion of language that will specifically permit the physician’s access to employer’s medical records (following termination for any reason) in the event that the employee requires the documents to defend herself in any sort of case or proceeding where the documents are relevant.
Further, another important issue to consider is the documents and information that a physician might be working on pursuant to any research projects. Consider if you have an ongoing research project, and then your relationship with your employer turns sour. If employment is terminated and employer has retained its right to keep all documents and records as its exclusive property, then you may have no choice but to leave behind the research that you’ve been working so hard on. While this sounds nightmarish and certainly unfair, this might be exactly what the language of the employment contract dictates.
While the access to documents and information following a physician’s employment is crucial, it is also important to address access to particular pieces of information during and throughout the employment relationship. In many cases, a physician’s compensation is partially or entirely comprised of productivity income (i.e. income that is dependent on the type and frequency of services provided by the physician). Additionally, the calculation of a physician’s income may take into account overhead and other expenses of the practice. In these cases, management or administrative staff will calculate the compensation due to the physician based on those services that she provided and any applicable deductions. Therefore, it is important for a physician relying on such calculations to be in a position to review the applicable information and ensure that her compensation is accurate. In these situations, we always advise the inclusion of language that will entitle the physician to reasonable access to financial and other information in order to verify the calculation of her compensation under the agreement.
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