EXPERT ANALYSIS FROM MOAS (Masters of Aesthetics Symposium) 2019
SAN DIEGO – When weighing an offer to join a dermatology practice, don’t allow legal considerations to drive your decision making, Mathew M. Avram, MD, JD, advised at the annual Masters of Aesthetics Symposium.
“Determine your professional interests and follow them accordingly,” said Dr. Avram, director of laser, cosmetics, and dermatologic surgery at Massachusetts General Hospital in Boston. “Your decision as to whether to join a particular practice should not be based upon a contract. Make certain to determine the business end of your deal with any new employer first: the compensation, the work hours, etc. Decide that upfront before you get into the legal details.”
The way he sees it, your relationship with your employer will always be paramount. “This is very important,” said Dr. Avram, who practiced law before he became a dermatologist. “A good contract with a bad employer will not save you from an unhappy employment experience. Few contracts ever end up in litigation, and you cannot sue your way to a happier work experience. Trust your intuition about people; trust your underlying interest in potentially working with this person, and work from there.”
Whether you choose to work in an academic practice, a private practice, or a hybrid, the key issues to address include compensation, benefits, work hours, job responsibilities, and future partnership possibilities. “As an employee, you have the greatest leverage prior to signing an agreement,” he said. “This is the time to ask for what you want.” This may include special requests such as asking the employer to purchase lasers or other special equipment for your office, or to set aside dedicated clinical time for cosmetic procedures, so that you can build a cosmetic practice.
If you’re mulling over a job offer in academics, consider asking for an academic title, what the scope of your authority is, and about your ability to hire or prevent the hiring of others. “Let’s say you’re starting a laser center in your academic center,” said Dr. Avram, who is a past president of the American Society for Laser Medicine and Surgery. “You may not want to find out after you’ve signed your contract that they’ve hired five other people to do the same thing.”
If you’re considering a job offer from a private practice, ask for specifics about bonuses, partnership track, scope of practice, and device purchases. “You want to have that decided before you sign,” he said. “But these are business issues, not legal issues. An agreement needs to be made between you and your employer as to these issues. Once they’ve been agreed upon, it’s time to proceed with a contract. This is where legal advice becomes helpful.” The trick is to negotiate in good faith while maintaining your relationship with your new employer. “Do not destroy your relationship over legal points, but do not cave on crucial issues for fear of upsetting your new employer,” he said.
In law school, Dr. Avram learned that there is no such thing as a standard employment contract. Any contract can be amended, no matter how large or small the institution. “You can amend a mortgage agreement, so you can certainly amend a physician employment contract,” he said. “If the employer is not going to put their commitments in writing, they are probably not going to honor that commitment to you. Written agreements supersede all preceding oral agreements. Each key term needs to be stated explicitly. If not, you have lost all leverage to enforce your initial agreement.”
Key provisions are restrictive covenants and at-will employment. Dr. Avram defined restrictive covenants as contractual agreements that attempt to restrict an employee so as to limit that person’s ability to compete. “This can include noncompete clauses, nonsolicitation agreements, and confidentiality agreements,” he said. “A noncompete agreement prohibits a doctor from competing against their former practice within a specific geographic area for a period of time after the employment has ended. The nonsolicitation agreement restricts the manner and time during which a physician can solicit patients or employees from a practice after termination of employment. A confidentiality agreement is usually indefinite as to time and it restricts the employee from disclosing confidential practice information.”
State laws, he continued, govern restrictive covenants. Some states prohibit them. States that allow them limit their scope to prevent undue burden on the employee’s ability to make a living after termination. “Restrictive covenants in cities need to be narrower than those in rural areas,” he said. “Overly broad restrictive covenants may be unenforceable. Courts can ‘blue line’ covenants to make them more reasonable in scope.”
Next, Dr. Avram discussed involuntary termination in the workplace. Termination with cause means that termination can only result from violation of policy or ethics code violation or significantly poor performance. “In the absence of these circumstances, termination cannot legally proceed,” he said. “This protects the employee from an arbitrary termination.”
On the other hand, at-will employees can be terminated without cause. “It’s a much easier standard to terminate an at-will employee, as long as the reason is not illegal,” he said. “In academic centers, your employment as a physician may require a for-cause termination, whereas your administrative title may be without cause.”
One way to avoid potential legal trouble is to abide by your employer’s rules governing a physician’s interactions with industry. “It is foolish to break those rules,” Dr. Avram said. “Transparency ahead of time is always your best policy. Remember: Your day job is far more valuable to you than part-time work with industry. Also, know that pharma payments are publicly reported by the Centers for Medicare & Medicaid Services.” When it comes to establishing contracts with industry, “read them carefully and have your academic center approve them, if applicable,” he said. “Watch out for noncompete clauses, and some contracts require that you do not speak negatively about your findings. That’s something you should try to avoid.”
Dr. Avram also advised clinicians not to discuss intellectual property with industry representatives. “Do not give away your intellectual property to industry when you’re consulting with them,” he said. “It is easier to do than you might think. If you have a great idea, keep it to yourself or get it protected. This is much easier for an institution where they want you to do these things. They take ownership of a lot of it, but they make it easier to do. Otherwise, you have to go through the expensive process of getting a patent.”
Dr. Avram reported that he has received consulting fees from Allergan, Merz Pharma, Sciton, Soliton, and Zalea. He also reported having ownership and/or shareholder interest in Cytrellis Biosystems, InMode, and Zalea, and intellectual property rights with Cytrellis.