By Dennis Hursh, ESQ 

“Crappy doc” terminations. First, let me apologize for the use of legalese. Of late, I have been hearing concerning stories about physicians who were terminated from employment on the grounds of supposedly poor-quality care. These are not what you would call slam dunks—I’m not talking about leaving a scalpel in the patient or showing up drunk for rounds.

The stories I hear (admittedly, I’m only hearing the physician’s side) have been instances where most reasonable people (i.e., non-hospital staff) would see no issue with care at all. One instance was a physician at a rural hospital who lost a family member and called in several hours before the physician’s shift was scheduled to start, indicating that a replacement had to be found. That physician was informed that failure to show up for the scheduled shift would be grounds for termination based on poor care. The rationale, as best we can determine, appeared to be that it would be difficult to replace the physician with only a few hours’ notice, so not showing up for the shift was, in effect, an abandonment of patients.

Obviously, being human is one ground for termination based on poor-quality care at that institution. Clearly, to give reasonable quality care, a physician must ensure that there are no human connections that might cause the physician concern in cases of serious medical emergencies. Recruiting only medically trained monks and nuns is not likely to alleviate this shocking tendency to love one’s family—since even monks and nuns have parents that they may (for some inexplicable reason) be somewhat attached to.

For years, I have used an example (that I always considered extreme) of how a hospital could terminate a physician if it determined that the physician was rendering poor-quality care. In my hypothetical, the physician was called in and informed that, because he wore a white shirt last Tuesday, the administrator has determined that he delivered poor-quality care and was being terminated. The administrator, you see, feels that white shirts intimidate patients.

OK, I always thought that was a crazy example that could never happen. Except…I recently spoke to a female physician who tells me she was called in and terminated for poor-quality care. The physician was an interventional radiologist, and she wore a purple flowered lead apron for her procedures. I am told the administrator informed her that this was unprofessional conduct on her part. She wasn’t given a warning, just terminated.

Luckily, there are things physicians can do to protect themselves against insane determinations by hospital administrators. When reviewing a physician employment agreement, it’s important to look closely at all the grounds for termination. In particular, look at the “crappy doc” termination provisions. Many first drafts of agreements provide that the physician can be terminated if the employer “determines” that patient care is jeopardized. See above—in both those cases, there was a “determination.” They were wildly inappropriate determinations, but they were determinations nevertheless.

A better provision would be one that requires a good-faith, reasonable determination. Although the employer may still act frivolously, this provision would give the physician the ability to dispute the termination.

Another solution (that I always propose when reviewing contracts) would be a contractual provision setting forth a reasonable procedure that the physician and employer agree to if there is a concern about the quality of care. I usually recommend that the physician and employer choose a mutually agreeable physician with expertise in the employed physician’s specialty to analyze the physician’s practice and determine if the physician is providing a reasonable standard of care.

If the third-party physician feels that the physician’s practice does not meet the standard of care, the employed physician should be given a reasonable amount of time (e.g., 60 days) to bring his or her practice up to the standard of care. If the third-party physician, after that period, still feels that the physician’s practice is not up to a reasonable standard of care, then the physician is terminated. I always request a provision that the employer pays all fees of the third-party physician.

This procedure avoids an expensive and drawn-out hearing process. This is beneficial for the physician in two ways. First, of course, having the employer pay for the expense of a third party that is agreeable to the employed physician means the employed physician bears no expense in the process.

A second advantage to the use of an expert to determine the quality of care is that, by avoiding a hearing, the employer is not compelled to report a termination to the National Practitioner Data Bank. An NPDB report can be devastating to the physician’s career.

Note that this procedure relates only to the termination of employment. A hospital’s peer review to determine if privileges should be limited or revoked is a separate procedure, and the physician’s employment agreement will not address the peer review process.

With a massive physician shortage in this country, you would think physicians would be immune from arbitrary terminations based on ridiculous allegations of quality of care. Unfortunately, this is just one more instance where physicians need to beware of seemingly innocuous language in employment contracts.