Physicians and Healthcare

Increasingly, physicians and healthcare professionals must come to terms with the weighty and complex legal aspects of their profession. Legal advice, support and expertise are often advisable. From the demands of access into the medical profession, medical school education and training, residency and fellowships to the development of career or practice specialty choices, private practice, academic medicine, on into the fullness of dedicated medical research and technology, or health care institutional employment, or healthcare administration and policy-making and right up to and including the time of retirement, legal parameters, strictures and protections are increasingly pervasive.

Paralleling and intersecting the developmental arc of medical and healthcare professional careers are legal requirements of proper credentials; state licensing, regulation and professional discipline; the various legal forms of private practice, such as partnerships, independent contracting, limited liability corporations, and service corporations; hospital and staff privileges and related affiliation agreements; academic medicine with its various clinical and other tracks, internal multi-faceted relationships, vertical hierarchies, and committee structures; and increasingly the consolidation of healthcare delivery systems into large profit-driven institutions with physician and other healthcare employees. And permeating the entire tapestry are the not to be ignored requirements of programs such as Medicare, Medicaid, the research requirements of various government agencies and the reporting requirements of the National Practitioner Data Bank (NPDB).

And what has this to do with employment law and practice? In my practice I have dealt with medical student probations and terminations, fellowship revocations, extensive peer review and NPDB conflicts, terminations of and by department chairs, misapplication of compensation funding formulas, sex, age, and/or race discrimination in physician placement or employment, breach of physician partnership and/or employment contracts, loss of privileges, deprivations of licenses, and professional stigmatization and reputational harm. Similarly, I have dealt with a variety of nursing and healthcare administrative, managerial and executive legal challenges and disputes. Medicine and other healthcare work can implicate the criminal law, antitrust and trade regulation law, Sarbanes-Oxley and Dodd-Frank corporate corruption law, Medicare and/or Medicaid fraud law, and the more “ordinary” areas of educational or employment discrimination, breach of contract, invasions of personal privacy, administrative and/or judicial medical litigation, and practice agreements.

Just a brief survey of media yields sources and reportage indicative of the legal challenges facing physicians. For example “A Hospital War Reflects A Bind For U.S. Doctors/A Drive To Consolidate As Corporate Workers, Physicians Feel Push On Bottom Line,” December 1, 2012 New York Times at pp. A1 and A17 and related letter responses by the Presidents of the American Medical Association, the American Hospital Association and well-informed others, Editorial/letters section, New York Times December 10, 2012 at p. A24. New AMA study reveals majority of America's physisicans still work in small practices (AMA July 18, 2015); Physician wages vary widely based on specialty (Milwakee Journal Sentinel April 16, 2016). Importantly, employment and related legal issues arise almost as pervasively and demandingly with respect to the nursing and other allied health professionals.

Troublingly, throughout the healthcare professions there is often a repressive ethos that introducing legal representation and advocacy into difficult or contentious medical situations is frowned upon, even unacceptable, which can result in healthcare workers’ isolation, frustration and depression. Sometimes retaliation occurs and itself produces yet another layer of legal challenge. So, doctors, nurses and other healthcare workers, if you have concerns, don’t hesitate to seek out and confer with experienced and informed counsel, the earlier the better. Contrary to what you may have been told, many lawyers are not heavy-handed and desirous of fomenting litigation but are rather quite aware of the complexity and delicacy of your circumstances and the competing tensions in your practices and workplaces.