The ACR Legal department periodically receives questions from ACR members-in-training about negotiating employment contracts. In this month’s Bulletin column, we will weigh in on contractual situations that radiology residents and fellows might face during training and when they begin practicing with a private group or hospital-based department.
Dealing With Call Coverage
Q: My group/department requires that all practice members agree to be available for call coverage one weekend a month. I realize that each member must be prepared to do their fair share of call. However, being on call takes a toll after I’ve worked a very busy week. Can I receive compensation for being on call?
A: Yes. If physicians in other practices at a hospital also receive compensation under a uniformly applied structure. But ACR members must work with senior practice or department leaders to ensure that payment for call meets key federal guidelines. For instance, members must seek and obtain compensation that is fair market value for actual and necessary services. Call compensation may not consider the “volume or value” of referrals or other business that the member may generate with their practice or department.1 Healthcare systems have had to settle allegations with the federal government that they violated the federal fraud and abuse laws by paying excessive compensation to physicians to cover call at their facilities. These arrangements involved paying specialist physicians who are on a medical staff, which likely included employed and independent contractor physicians.2
Acceptable payment structures include “hourly or ‘per diem’ compensation to be available for on call or payment for time or services” that the member actually provides in return for assigning the right to receive professional fees.3 Proceed carefully and communicate regularly with your practice or department leaders about their expectations for call coverage.
Understanding Liability Insurance
Q: As a resident or fellow, am I covered under my academic medical center’s professional liability insurance if I make a mistake that leads to a potential legal claim? What happens if I “moonlight” at an outside practice during my off hours?
A: Yes, your medical center/health system should include you as an employee under its policy for any acts or omissions related to patient care for which you are responsible. Confirm before signing your contract that you will have the benefit of this professional liability insurance during training. However, if you engage in moonlighting outside the scope of your employment as a resident or fellow at another site, you will need to obtain and maintain a separate insurance policy to
cover you for any acts or omissions in that position. You still may be liable as the “physician of record” because you would not be under any attending’s supervision at your institution.4
Confirm that your institution will provide professional liability coverage to cover any claims that occur after you completed training but that related to your duties as a resident or fellow. The institution might have a “claims-made” policy that offers coverage if the policy was effective both when the incident occurred and a claim was made.5 The policy might have “tail” coverage to extend to claims that arise after you left the institution. If the institution’s policy lacks tail coverage, you should purchase it. The cost would be approximately 1.5 to 2 times the amount of an annual malpractice insurance premium. You could negotiate tail coverage with a prospective
new practice.6
If the practice or hospital terminates you, either with or without cause, you must negotiate who pays for your insurance coverage thereafter. Ask about obtaining a monetary credit for your employment tenure.7
Protecting Intellectual Property
Q: Several of us residents have conducted exciting research in AI. Our program director has supported us and believes we should publish and present on our findings and conclusions. However, I’ve heard that our healthcare system might assert ownership over our work. Is that true?
A: Yes, possibly. Your health system likely would claim intellectual property rights to your work if you used the system’s resources. Whether you used the system’s laboratory or personnel or conducted research during work hours, the system would assert intellectual property over any copyright, trademark, or patent.8
Many institutions have formal policies addressing intellectual policy rights, and some provide for joint ownership or splitting of royalties or other payments. You could negotiate with your institution and program to obtain a non-exclusive, royalty-free license to present your work at conferences and submit to scientific publications. If you succeed, you should attribute your work as being performed with the support of the institution.
Reviewing Termination Policies
Q: What if I have conflicts with my program that might affect my employment status? Can my program let me go for any or no reason?
A: Yes, your program typically may discharge you, either with or without cause. Closely review the termination provision of your contract, including any language that allows the program to terminate if you violate the institution’s policies. Request and review those policies. You should have a notice of any performance issues and an opportunity to resolve them before your program terminates your employment.7
Obtaining Legal Review of Contracts
Q: Do I need a lawyer to review my contract? If I do, would a family member or friend who is a lawyer suffice?
A: Unless that family member or friend practices health law and has negotiated physician employment contracts, we strongly recommend finding a lawyer with this experience. We appreciate that as a resident or fellow, you wish to obtain cost-effective legal review of your initial employment contract. Ultimately though, that review is a key investment in your future. A lawyer in most firms, even at a senior associate level, may charge $300–500 per hour to review a contract, flag certain provisions, and discuss it with you. Partners, at least those who practice in metropolitan areas, may charge $600–800 an hour. A fee of $2,000 or more for a contract review may seem excessive to someone unfamiliar with legal billing rates. But contract reviews, no matter how similar the contract framework, require attorneys to evaluate provisions such as non-compete clauses based on the law of the jurisdiction where the department or practice is located. ACR Legal can assist you in finding a qualified healthcare lawyer in the jurisdiction where you would practice. Please contact us at legal@acr.org.