Capturing the Spirit of the Agreement
Career Resources articles posted on NEJM CareerCenter are produced by freelance health care writers as an advertising service of the publishing division of the Massachusetts Medical Society and should not be construed as coming from the New England Journal of Medicine, nor do they represent the views of the New England Journal of Medicine or the Massachusetts Medical Society.
By Thomas Crawford, MBA, FACHE, Faculty, Department of Urology, College of Medicine, Affiliate Faculty, Department of Health Services Research, Management and Policy College of Public Health and Health Professions, University of Florida and Mallory Freeman, JD, MHA Student, Department of Health Services Research, Management, and Policy, College of Public Health and Health Professions, University of Florida.
Constance E. Bagley defines a contract as “a legally enforceable promise or set of promises.” (Managers and the Legal Environment, 2002). The definition is simplistic; however, it provides the perfect opportunity to highlight and underscore a fundamental and vitally important contracting fact: get it in writing. Please know that you cannot rely on anecdotal comments made during the recruitment process or pledges that are not captured within your contract. A vast majority of all employment contracts have an “Entire Agreement” covenant that specifies the following:
This agreement constitutes the entire agreement between the parties pertaining to the employment relationship between the hospital/practice and the physician and preempts and supersedes all prior and simultaneous agreements, negotiations, and understandings between the parties.
This means that if your recruitment promises are not reflected within your contract, your employer is not legally obligated to follow-through on any agreement, in particular those initial recruitment discussions.
The Spirit of the Agreement When negotiating the terms of an employment agreement, you may be told that you received the “standard contract.” Nevertheless, if it does not reflect the promises made to you, revise it. Unfortunately, physicians sign contracts on a daily basis based on good faith. As such, it should not be surprising that an estimated 22 physicians per business day are handing in their resignations within the first 12 months of employment. Protecting yourself from unwanted employment surprises begins at the initial interview. You need to be prepared to ask questions that are professionally (i.e., resources) and personally (i.e., call rotation) important to you. Additionally, and quite simply, you will also need to take notes; thus, allowing you the opportunity to capture every recruiting promise made to you during the interview process — this is the “spirit” in which you are deciding to accept and employment position.
Capturing the Spirit of the Agreement
Once you receive your employment contract, compare the document against the answers to your questions and the recruiting promises made to you. If you cannot find the answers and the promises within the contractual terms, you need to add the language. If you locate the language within the contract and find it to be nebulous or ambiguous, you need to add granular verbiage to ensure the clauses are easily interpreted. To illustrate this point, consider the following:
In previous positions, I interviewed and hired numerous employed physicians and I honored the contractual terms and the spirit of each agreement. However, those same contracts are now subject to the interpretation of new leaders that were not present during the recruiting, negotiating, and contracting processes. Point made.
We believe that you have an opportunity and an obligation (to yourself) to capture the spirit of the agreement through the interviewing and contracting processes and to create a legally binding document that protects your best interests as well as the interests of your potential employer. Nevertheless, it pays to understand that even the most seasoned health care lawyers are not going to bring contractual shortfalls to your attention if they are unaware of the recruitment promises made to you. Your best defense is to simply bring a pencil and paper and take notes. If your potential employer is hesitant to create contractual terms that reflect the promises made to you during the recruitment process, this may create issues for you immediately upon hire or after a change in leadership and you run the risk of being 1 of the 22 physicians that turned in their resignation on any given business day.