Nursing Home Chain Hit With $1.5 Million Verdict in Sex Discrimination Lawsuit as Jury Sides with Former Employee

IndestBy George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

On November 2, 2017, a former elder care facility executive was awarded a $1.5 million verdict by a federal jury in Washington state. Irene Riggs claims she was fired for complaining about the “sexually charged” environment created by a supervisor’s inappropriate conduct with a nurse. After a three-day trial, the jury awarded her over $232,000 in lost wages up to the date of trial, nearly $802,000 in future lost wages and $500,000 for loss of enjoyment of life after she was fired by Tennessee-based Life Care Centers of America Inc. (Life Care).

Alleged Sex Discrimination.

In her suit, the plaintiff alleged that she was subjected to a “sexually charged atmosphere” by a regional vice president, who was her supervisor beginning in 2013, and a registered nurse with whom he was purportedly in a relationship. Riggs alleged the two fondled each other in an office and regularly engaged in intimate conversation, among other inappropriate things, according to court documents. Additionally, she complained on behalf of herself and colleagues about the conduct directly to the regional vice president, who allegedly became angry and later lodged a complaint with human resources.

In a pretrial brief, the plaintiff said that Life Care’s primary reason for firing her (mental abuse of a resident by unplugging his television) was not true and used as a cover for the real reason. In response, Life Care said that her firing couldn’t constitute discrimination. The company argued that she didn’t report a quid pro quo relationship or a hostile work environment, which are the two types of sex discrimination recognized by the Washington Law Against Discrimination.

She was employed at Life Care’s Sandpoint facility from September 2006 until she was fired on February 1, 2016.

The Jury’s Decision.

The jury determined that Riggs had provided sufficient evidence to show that she opposed what she believed was sex discrimination. Moreover, she was able to show that her report of alleged misconduct by a supervisor was a substantial motivating factor in her firing, and that Life Care didn’t offer a valid justification for her dismissal, according to the verdict.

To read the jury’s verdict in this case, click here.

To learn about a similar case involving sexual harassment and discrimination, click here to read one of my prior blogs.

Contact Health Attorneys Experienced in Health Law and Employment Law.

The Health Law Firm represents both employers and employees in the health care industry in defending allegations of employment discrimination and other complaints from employees and patients. We represent employers in unemployment compensation hearings, in defending against EEOC (discrimination) complaints, and in defending litigation involving wage and hour disputes, as well as other types of contract or employment litigation. We also can investigate such allegations and attempt to negotiate settlements where warranted. Our attorneys represent individuals and institutions in litigation, civil or administrative, state or federal.

To contact The Health Law Firm please call (407) 331-6620 and visit our website at www.TheHealthLawFirm.com.

Sources:

Gurrieri, Vin. “Nursing Home Chain Hit With $1.5M Verdict In Sex Bias Suit.” Law360. (November 2, 2017). Web.

“Nursing Home Chain Hit With $1.5M Verdict In Sex Bias Lawsuit.” Lexis Nexis. (November 2, 2017). Web.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

KeyWords: Legal representation for workplace discrimination, legal representation for employee discrimination, legal representation for nursing homes, legal representation for elder care facilities, legal representation for home health facilities, nursing home representation, home health care facility representation, nursing law defense attorney, elder care facility representation, legal representation for nurses, legal representation for health care facilities, health care facility defense attorney, legal representation for sexual harassment and discrimination, employment law, legal representation for employment matters, employment law defense attorney, unemployment compensation hearings, defending against EEOC (discrimination) complaints, defending litigation involving wage and hour disputes, legal representation for contract law, legal representation for contract litigation, legal representation for employment litigation, reviews of The Health Law Firm, The Health Law Firm attorney reviews

“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2017 The Health Law Firm. All rights reserved.

 

20 Tips Plus a Bonus for Physicians Negotiating Their Own Employment Contracts

By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

At The Health Law Firm, we often receive calls from physicians and health professionals about reviewing and negotiating contracts, preparing contracts, helping employers and employees enforce contracts, voiding contracts, getting out of contracts and litigating various contract provisions. Physicians and other health professionals should understand the common language and terms found in employment contracts for professionals so they can recognize mistakes commonly when negotiating them.

Our comments here are meant to provide general tips we have learned from our experience. However, please remember, every situation is different and there are exceptions to every rule. I have added a “bonus tip” here, because of recent problems our clients have had.

“Bonus Tip;” The Prime Directive.

My primary tip, and I would say it is the most important, is to know the persons and parties with whom you are contracting and be sure the contract contains that information. Make sure you know the complete name and residence address of the principal person with whom you are dealing. Then be sure you know the complete information on any business entity with which you are dealing, including state of incorporation (or organization), shareholders (or “owners” or members), and address of its main headquarters (principal place of business). If other business entities are the shareholders, owners or members of the entity for which you will be working, you need to find out the same information for each of them. Make sure they are all authorized to do business in your state and have the appropriate licenses that your state requires.

In Florida, any medical business that is not actually 100% owned by Florida licensed physicians or health professionals must have a Health Care Clinic license issued by the Florida Agency for Health Care Administration. Dental practices and optometry practices cannot be owned by anyone who is not licensed to practice dentistry in the state of Florida. Some unscrupulous business people attempt to skirt the law by setting up phoney or “straw man” owners that are physicians or dentists. This is illegal, a felony in many cases, so be cautious. My advice would be not to sign up with a business entity that has been created solely for the purpose of contracting with you and which has no assets. This has been a real problem, lately.

20 More Tips.

The following are a few tips for any physician who is involved in negotiating his or her own employment agreement.

1. There is no such thing as a “standard physician employment agreement.”

2. Everything is negotiable.

3. Be sure the wording of the contract represents exactly the agreement you made. If it is different or not specified, the language in the contract will govern in any future dispute.

4. Be sure that every blank in the contract is completed and filled in before you sign.

5. Be sure that every Exhibit, Addendum or Schedule referred to in the contract is completed and attached before you sign.

6. Shun “legal” advice from your peers and, especially, from the accountants and representatives of your future employer. Misinformation about legal issues abounds. Just because one court may have decided a legal issue a certain way in one case in one state does not mean a different court would not reach a different decision, even in the same state or county. Every set of facts and circumstances, every contract and every case are different.

7. Obtain and review copies of every document referred to in the agreement. These are considered part of the agreement. These may include the practice’s policies and procedures, the employee handbook, a code of conduct, sexual harassment policy, compliance agreements, etc. Keep these in a file with a copy of your contract.

8. Carefully consider clauses that allow the employer to terminate the agreement without cause on a 30 day, 60 day, 90 day or 180 day notice. With such a clause in your contract, you no longer have a one year or two year agreement. Instead, you have a 30 day, 60 day, 90 day or 180 day contract. Can you find another job and relocate in 30 days or 60 days?

9. If there is a “for cause” termination provision in the contract, be sure to include a “cure” provision. This is a provision which requires the employer to provide you written notice of any deficiency or breach and allows you a certain period of time (usually anywhere from 10 to 30 days) to cure it.

10. Ensure the contract is clear throughout that you are an employee and not an independent contractor. Employees receive far more benefits and have more protections under the law than do independent contractors. If you sign on as an independent contractor, you will be assuming many expenses and liabilities that the employer would ordinarily be required to assume.

11. A promise to make you a “partner” or “shareholder” in the practice after a certain period of time will not be enforceable unless all of the terms are specified in order for a court to enforce it. (Price, timing, percentage of ownership, method of payment of the buy-in, etc.). Think of an option to purchase a house. Unless all of the terms for a binding contract are set forth in writing and agreed to by the parties, it will not be enforceable.

12. If you sign the agreement, be prepared to honor it. Do not sign an agreement thinking that there may be certain provisions that won’t be enforceable or that you won’t be required to follow in the future. Assume that every part of the contract is enforceable.

13. Restrictive covenants (sometimes referred to as covenants not to compete) are enforceable in Florida. Although there are many exceptions and defenses that can be used to defeat or prevent the enforcement of a restrictive covenant, unless you have the money set aside to finance litigation, expect to honor it if it is in the agreement. As an employee, your negotiation strategy should be to: a) have it removed completely, or b) reduce the period of time and reduce the geographic area as low as possible. Also, it should be worded so as to only apply to the office or location in which you work and to the medical subspecialty or type of practice in which you will work.

14. Avoid assuming any obligation to pay the premium for tail coverage for professional liability (medical malpractice) insurance, especially if the employer terminates the employment. If you are not able to negotiate this away completely: a) reduce the percentage you agree to pay to 50% or have it reduced 25% for each year you are in the practice, and b) insert a provision that if you maintain the same insurance company or obtain retroactive coverage, this will be substituted for tail coverage.

15. Visit the practice, hospital and area at least three (3) times before signing. One of these visits should be without the knowledge of the potential employer when you can tour the geographic area and, perhaps, the hospitals on your own.

16. Contact any physicians you know or have met in the past who live in the area or any surrounding areas. They may be able to provide you information regarding your potential employer, hospital or city that may affect your decision.

17. Do your “due diligence” before agreeing. Ask to see actual billing and collections figures and income statements. Talk to other associates. If your compensation will be based on productivity, speak with another physician who is similarly compensated about how his/her compensation is computed. Visit any hospital, nursing home or other facility where you will have privileges or see patients. Discuss the quality of the equipment and stuff with other physicians and physicians in surrounding communities.

18. Do not buy a permanent residence (house or condominium) during your first two years of employment with a new practice in a new location. Rent or rent with an option to purchase. This will give you much more flexibility if the employment situation does not work out to your expectations.

19. If you receive a signing bonus, put it in the bank in a CD or money market to use as needed in connection with tips 14 and 15 above. This may be your personal “golden parachute” if you need to leave a bad situation.

20. Do not start working until you have a copy of the employment agreement. A draft copy if not sufficient. A copy signed by you but not by the employer is not sufficient. The most common problem we see when there is a physician employment dispute is that the employee does not have a copy of the contract that is signed by the employer.

Contact a Health Care Attorney Experienced in Negotiating and Evaluating Physician and Health Professional’s Business Transactions.

At the Health Law Firm we provide legal services for all health care providers and professionals. This includes physicians, nurses, dentists, psychologists, psychiatrists, mental health counselors, durable medical equipment suppliers (DME), medical students and interns, hospitals, ambulatory surgical centers, pain management clinics, nursing homes, and any other health care provider.

The services we provide include reviewing and negotiating contracts, preparing contracts, helping employers and employees enforce contracts, advice on setting aside or voiding contracts, litigation of contracts (in start or federal court), business transactions, professional license defense, opinion letters, representation in investigations, fair hearing defense, representation in peer review and clinical privileges hearings, litigation of restrictive covenant (covenants not to compete), Medicare and Medicaid audits, commercial litigation, and administrative hearings.

To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

KeyWords: Physician employment agreement, physician employment contract, health professional contracting, negotiating business transactions, physician contracts, contracting tips, legal representation for physician contracts, legal representation for negotiating physician contracts, contracting defense attorney, physician contract attorney, legal representation for contract litigation, legal representation for business litigation, legal counsel for contract terms, legal representation for physician agreements, legal representation for business transactions, legal counsel for restrictive covenants, legal counsel for noncompetition agreements, The Health Law Firm reviews, reviews of The Health Law Firm attorneys, health law defense attorney, health law attorney

“The Health Law Firm” is a registered fictitious business name of The Health Law Firm, P.A., and Florida professional service corporation, since 1999, and is also a registered service mark. Copyright © 2017 The Health Law Firm. All rights reserved.

20 Tips Plus a Bonus for Physicians Negotiating Their Own Employment Contracts

4 Indest-2009-3By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

At The Health Law Firm, we often receive calls from physicians and health professionals about reviewing and negotiating contracts, preparing contracts, helping employers and employees enforce contracts, voiding contracts, getting out of contracts and litigating various contract provisions. Physicians and other health professionals should understand the common language and terms found in employment contracts for professionals so they can recognize mistakes commonly when negotiating them.

Our comments here are meant to provide general tips we have learned from our experience. However, please remember, every situation is different and there are exceptions to every rule. I have added a “bonus tip” here, because of recent problems our clients have had.

“Bonus Tip;” The Prime Directive.

My primary tip, and I would say it is the most important, is to know the persons and parties with whom you are contracting and be sure the contract contains that information. Make sure you know the complete name and residence address of the principal person with whom you are dealing. Then be sure you know the complete information on any business entity with which you are dealing, including state of incorporation (or organization), shareholders (or “owners” or members), and address of its main headquarters (principal place of business). If other business entities are the shareholders, owners or members of the entity for which you will be working, you need to find out the same information for each of them. Make sure they are all authorized to do business in your state and have the appropriate licenses that your state requires.

In Florida, any medical business that is not actually 100% owned by Florida licensed physicians or health professionals must have a Health Care Clinic license issued by the Florida Agency for Health Care Administration. Dental practices and optometry practices cannot be owned by anyone who is not licensed to practice dentistry in the state of Florida. Some unscrupulous business people attempt to skirt the law by setting up phoney or “straw man” owners that are physicians or dentists. This is illegal, a felony in many cases, so be cautious. My advice would be not to sign up with a business entity that has been created solely for the purpose of contracting with you and which has no assets. This has been a real problem, lately.

20 More Tips.

The following are a few tips for any physician who is involved in negotiating his or her own employment agreement.

1. There is no such thing as a “standard physician employment agreement.”

2. Everything is negotiable.

3. Be sure the wording of the contract represents exactly the agreement you made. If it is different or not specified, the language in the contract will govern in any future dispute.

4. Be sure that every blank in the contract is completed and filled in before you sign.

5. Be sure that every Exhibit, Addendum or Schedule referred to in the contract is completed and attached before you sign.

6. Shun “legal” advice from your peers and, especially, from the accountants and representatives of your future employer. Misinformation about legal issues abounds. Just because one court may have decided a legal issue a certain way in one case in one state does not mean a different court would not reach a different decision, even in the same state or county. Every set of facts and circumstances, every contract and every case are different.

7. Obtain and review copies of every document referred to in the agreement. These are considered part of the agreement. These may include the practice’s policies and procedures, the employee handbook, a code of conduct, sexual harassment policy, compliance agreements, etc. Keep these in a file with a copy of your contract.

8. Carefully consider clauses that allow the employer to terminate the agreement without cause on a 30 day, 60 day, 90 day or 180 day notice. With such a clause in your contract, you no longer have a one year or two year agreement. Instead, you have a 30 day, 60 day, 90 day or 180 day contract. Can you find another job and relocate in 30 days or 60 days?

9. If there is a “for cause” termination provision in the contract, be sure to include a “cure” provision. This is a provision which requires the employer to provide you written notice of any deficiency or breach and allows you a certain period of time (usually anywhere from 10 to 30 days) to cure it.

10. Ensure the contract is clear throughout that you are an employee and not an independent contractor. Employees receive far more benefits and have more protections under the law than do independent contractors. If you sign on as an independent contractor, you will be assuming many expenses and liabilities that the employer would ordinarily be required to assume.

11. A promise to make you a “partner” or “shareholder” in the practice after a certain period of time will not be enforceable unless all of the terms are specified in order for a court to enforce it. (Price, timing, percentage of ownership, method of payment of the buy-in, etc.). Think of an option to purchase a house. Unless all of the terms for a binding contract are set forth in writing and agreed to by the parties, it will not be enforceable.

12. If you sign the agreement, be prepared to honor it. Do not sign an agreement thinking that there may be certain provisions that won’t be enforceable or that you won’t be required to follow in the future. Assume that every part of the contract is enforceable.

13. Restrictive covenants (sometimes referred to as covenants not to compete) are enforceable in Florida. Although there are many exceptions and defenses that can be used to defeat or prevent the enforcement of a restrictive covenant, unless you have the money set aside to finance litigation, expect to honor it if it is in the agreement. As an employee, your negotiation strategy should be to: a) have it removed completely, or b) reduce the period of time and reduce the geographic area as low as possible. Also, it should be worded so as to only apply to the office or location in which you work and to the medical subspecialty or type of practice in which you will work.

14. Avoid assuming any obligation to pay the premium for tail coverage for professional liability (medical malpractice) insurance, especially if the employer terminates the employment. If you are not able to negotiate this away completely: a) reduce the percentage you agree to pay to 50% or have it reduced 25% for each year you are in the practice, and b) insert a provision that if you maintain the same insurance company or obtain retroactive coverage, this will be substituted for tail coverage.

15. Visit the practice, hospital and area at least three (3) times before signing. One of these visits should be without the knowledge of the potential employer when you can tour the geographic area and, perhaps, the hospitals on your own.

16. Contact any physicians you know or have met in the past who live in the area or any surrounding areas. They may be able to provide you information regarding your potential employer, hospital or city that may affect your decision.

17. Do your “due diligence” before agreeing. Ask to see actual billing and collections figures and income statements. Talk to other associates. If your compensation will be based on productivity, speak with another physician who is similarly compensated about how his/her compensation is computed. Visit any hospital, nursing home or other facility where you will have privileges or see patients. Discuss the quality of the equipment and stuff with other physicians and physicians in surrounding communities.

18. Do not buy a permanent residence (house or condominium) during your first two years of employment with a new practice in a new location. Rent or rent with an option to purchase. This will give you much more flexibility if the employment situation does not work out to your expectations.

19. If you receive a signing bonus, put it in the bank in a CD or money market to use as needed in connection with tips 14 and 15 above. This may be your personal “golden parachute” if you need to leave a bad situation.

20. Do not start working until you have a copy of the employment agreement. A draft copy if not sufficient. A copy signed by you but not by the employer is not sufficient. The most common problem we see when there is a physician employment dispute is that the employee does not have a copy of the contract that is signed by the employer.

Contact a Health Care Attorney Experienced in Negotiating and Evaluating Physician and Health Professional’s Business Transactions.

At the Health Law Firm we provide legal services for all health care providers and professionals. This includes physicians, nurses, dentists, psychologists, psychiatrists, mental health counselors, durable medical equipment suppliers (DME), medical students and interns, hospitals, ambulatory surgical centers, pain management clinics, nursing homes, and any other health care provider.

The services we provide include reviewing and negotiating contracts, preparing contracts, helping employers and employees enforce contracts, advice on setting aside or voiding contracts, litigation of contracts (in start or federal court), business transactions, professional license defense, opinion letters, representation in investigations, fair hearing defense, representation in peer review and clinical privileges hearings, litigation of restrictive covenant (covenants not to compete), Medicare and Medicaid audits, commercial litigation, and administrative hearings.

To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

KeyWords: Physician employment agreement, physician employment contract, health professional contracting, negotiating business transactions, physician contracts, contracting tips, legal representation for physician contracts, legal representation for negotiating physician contracts, contracting defense attorney, physician contract attorney, legal representation for contract litigation, legal representation for business litigation, legal counsel for contract terms, legal representation for physician agreements, legal representation for business transactions, legal counsel for restrictive covenants, legal counsel for noncompetition agreements, The Health Law Firm reviews, reviews of The Health Law Firm attorneys, health law defense attorney, health law attorney

“The Health Law Firm” is a registered fictitious business name of The Health Law Firm, P.A., and Florida professional service corporation, since 1999, and is also a registered service mark. Copyright © 2017 The Health Law Firm. All rights reserved.

Broward Health Executives Charged for Conspiring to Get Rid of CEO

George IndestBy George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

On December 12, 2017, five North Broward Health District executives were hit with criminal charges. A state attorney is alleging violations of Florida’s open government laws for supposedly holding secret meetings at which they decided to terminate the former interim chief executive.

The Broward County State Attorney’s Office served summons on Broward Health’s interim president and CEO Beverly Capasso, current and former board of commissioners members Rocky Rodriguez, Christopher T. Ure and Linda Robison, and general counsel Lynn Barrett. According to court records, a grand jury returned an indictment against them in state circuit court following an investigation.

Broward’s Bad Luck.

The new charges seem to be the latest chapter of a tumultuous past several years for leadership of North Broward Health. The four-count indictment stems from a prior investigation that followed the controversial December 2016 firing of interim CEO Pauline Grant for alleged kickback violations. For more information on this investigation, click here.

Government-in-the-Sunshine Law.

The indictment levies misdemeanor charges for alleged violations of the state’s public meetings law, also known as the Government-in-the-Sunshine Law. According to court documents, the four board members and Barrett conspired in late November and early December 2016 to hold secret meetings. They were conducted via phone in which they discussed a “reportable event” allegedly committed by Grant and decided upon her termination.

The meetings allegedly violated the law because they covered business or official acts of the district but were not publicly noticed. Therefore, they did not meet requirements to be open to the public at all times or give the public a reasonable opportunity to be heard on Grant’s termination, the indictment says.

Knowingly violating the Sunshine Law can result in removal from office and a criminal penalty of up to 60 days in jail and a maximum $500 fine, according to state records.

To read the indictment in full, click here.

To read more on Broward Health’s legal woes, click here to read a prior blog I wrote.

To learn more about how The Health Law Firm can assist you in matters of employment law, click here.

Contact Health Attorneys Experienced in Health Law and Employment Law.

The Health Law Firm represents both employers and employees in the health care industry in defending allegations of employment discrimination and other complaints from employees and patients. We represent employers in unemployment compensation hearings, in defending against EEOC (discrimination) complaints, and in defending litigation involving wage and hour disputes, as well as other types of contract or employment litigation. We also can investigate such allegations and attempt to negotiate settlements where warranted. Our attorneys represent individuals and institutions in litigation, civil or administrative, state or federal.

To contact The Health Law Firm please call (407) 331-6620 and visit our website at www.TheHealthLawFirm.com.

Sources:

Hale, Nathan. “Broward Health Execs Charged For Conspiring To Ax CEO.” Law360. (December 12, 2017). Web.

Fleshler, David. “Ousted Broward Health CEO files lawsuit.” Sun Sentinel. (December 20, 2016). Web.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida area. www.TheHealthLawfirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone; (407) 331-6620.

KeyWords: employment issues attorney, employment law defense attorney, employment law attorney, legal representation for health care facilities, legal representation for health care professionals, Legal representation for workplace discrimination, workplace discrimination lawyer, legal representation for employee discrimination, defending litigation involving wage and hour disputes, legal representation for contract law, contract law attorney, legal representation for contract litigation, contract litigation attorney, employment litigation lawyer, legal representation for employment litigation, legal representation for labor relations, legal representation for employee relations, legal representation for conditions of employment, reviews of The Health Law Firm, The Health Law Firm attorney reviews

“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2018 The Health Law Firm. All rights reserved.

 

Broward Health Executives Charged for Conspiring to Get Rid of CEO

George IndestBy George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

On December 12, 2017, five North Broward Health District executives were hit with criminal charges. A state attorney is alleging violations of Florida’s open government laws for supposedly holding secret meetings at which they decided to terminate the former interim chief executive.

The Broward County State Attorney’s Office served summons on Broward Health’s interim president and CEO Beverly Capasso, current and former board of commissioners members Rocky Rodriguez, Christopher T. Ure and Linda Robison, and general counsel Lynn Barrett. According to court records, a grand jury returned an indictment against them in state circuit court following an investigation.

Broward’s Bad Luck.

The new charges seem to be the latest chapter of a tumultuous past several years for leadership of North Broward Health. The four-count indictment stems from a prior investigation that followed the controversial December 2016 firing of interim CEO Pauline Grant for alleged kickback violations. For more information on this investigation, click here.

Government-in-the-Sunshine Law.

The indictment levies misdemeanor charges for alleged violations of the state’s public meetings law, also known as the Government-in-the-Sunshine Law. According to court documents, the four board members and Barrett conspired in late November and early December 2016 to hold secret meetings. They were conducted via phone in which they discussed a “reportable event” allegedly committed by Grant and decided upon her termination.

The meetings allegedly violated the law because they covered business or official acts of the district but were not publicly noticed. Therefore, they did not meet requirements to be open to the public at all times or give the public a reasonable opportunity to be heard on Grant’s termination, the indictment says.

Knowingly violating the Sunshine Law can result in removal from office and a criminal penalty of up to 60 days in jail and a maximum $500 fine, according to state records.

To read the indictment in full, click here.

To read more on Broward Health’s legal woes, click here to read a prior blog I wrote.

To learn more about how The Health Law Firm can assist you in matters of employment law, click here.

Contact Health Attorneys Experienced in Health Law and Employment Law.

The Health Law Firm represents both employers and employees in the health care industry in defending allegations of employment discrimination and other complaints from employees and patients. We represent employers in unemployment compensation hearings, in defending against EEOC (discrimination) complaints, and in defending litigation involving wage and hour disputes, as well as other types of contract or employment litigation. We also can investigate such allegations and attempt to negotiate settlements where warranted. Our attorneys represent individuals and institutions in litigation, civil or administrative, state or federal.

To contact The Health Law Firm please call (407) 331-6620 and visit our website at www.TheHealthLawFirm.com.

Sources:

Hale, Nathan. “Broward Health Execs Charged For Conspiring To Ax CEO.” Law360. (December 12, 2017). Web.

Fleshler, David. “Ousted Broward Health CEO files lawsuit.” Sun Sentinel. (December 20, 2016). Web.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida area. www.TheHealthLawfirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone; (407) 331-6620.

KeyWords: employment issues attorney, employment law defense attorney, employment law attorney, legal representation for health care facilities, legal representation for health care professionals, Legal representation for workplace discrimination, workplace discrimination lawyer, legal representation for employee discrimination, defending litigation involving wage and hour disputes, legal representation for contract law, contract law attorney, legal representation for contract litigation, contract litigation attorney, employment litigation lawyer, legal representation for employment litigation, legal representation for labor relations, legal representation for employee relations, legal representation for conditions of employment, reviews of The Health Law Firm, The Health Law Firm attorney reviews

“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2018 The Health Law Firm. All rights reserved.

 

20 Tips Plus a Bonus for Physicians Negotiating Their Own Employment Contracts

George IndestBy George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

At The Health Law Firm, we often receive calls from physicians and health professionals about reviewing and negotiating contracts, preparing contracts, helping employers and employees enforce contracts, voiding contracts, getting out of contracts and litigating various contract provisions. Physicians and other health professionals should understand the common language and terms found in employment contracts for professionals so they can recognize mistakes commonly when negotiating them.

Our comments here are meant to provide general tips we have learned from our experience. However, please remember, every situation is different and there are exceptions to every rule. I have added a “bonus tip” here, because of recent problems our clients have had.

“Bonus Tip;” The Prime Directive.

My primary tip, and I would say it is the most important, is to know the persons and parties with whom you are contracting and be sure the contract contains that information. Make sure you know the complete name and residence address of the principal person with whom you are dealing. Then be sure you know the complete information on any business entity with which you are dealing, including state of incorporation (or organization), shareholders (or “owners” or members), and address of its main headquarters (principal place of business). If other business entities are the shareholders, owners or members of the entity for which you will be working, you need to find out the same information for each of them. Make sure they are all authorized to do business in your state and have the appropriate licenses that your state requires.

In Florida, any medical business that is not actually 100% owned by Florida licensed physicians or health professionals must have a Health Care Clinic license issued by the Florida Agency for Health Care Administration. Dental practices and optometry practices cannot be owned by anyone who is not licensed to practice dentistry in the state of Florida. Some unscrupulous business people attempt to skirt the law by setting up phoney or “straw man” owners that are physicians or dentists. This is illegal, a felony in many cases, so be cautious. My advice would be not to sign up with a business entity that has been created solely for the purpose of contracting with you and which has no assets. This has been a real problem, lately.

20 More Tips.

The following are a few tips for any physician who is involved in negotiating his or her own employment agreement.

1. There is no such thing as a “standard physician employment agreement.”

2. Everything is negotiable.

3. Be sure the wording of the contract represents exactly the agreement you made. If it is different or not specified, the language in the contract will govern in any future dispute.

4. Be sure that every blank in the contract is completed and filled in before you sign.

5. Be sure that every Exhibit, Addendum or Schedule referred to in the contract is completed and attached before you sign.

6. Shun “legal” advice from your peers and, especially, from the accountants and representatives of your future employer. Misinformation about legal issues abounds. Just because one court may have decided a legal issue a certain way in one case in one state does not mean a different court would not reach a different decision, even in the same state or county. Every set of facts and circumstances, every contract and every case are different.

7. Obtain and review copies of every document referred to in the agreement. These are considered part of the agreement. These may include the practice’s policies and procedures, the employee handbook, a code of conduct, sexual harassment policy, compliance agreements, etc. Keep these in a file with a copy of your contract.

8. Carefully consider clauses that allow the employer to terminate the agreement without cause on a 30 day, 60 day, 90 day or 180 day notice. With such a clause in your contract, you no longer have a one year or two year agreement. Instead, you have a 30 day, 60 day, 90 day or 180 day contract. Can you find another job and relocate in 30 days or 60 days?

9. If there is a “for cause” termination provision in the contract, be sure to include a “cure” provision. This is a provision which requires the employer to provide you written notice of any deficiency or breach and allows you a certain period of time (usually anywhere from 10 to 30 days) to cure it.

10. Ensure the contract is clear throughout that you are an employee and not an independent contractor. Employees receive far more benefits and have more protections under the law than do independent contractors. If you sign on as an independent contractor, you will be assuming many expenses and liabilities that the employer would ordinarily be required to assume.

11. A promise to make you a “partner” or “shareholder” in the practice after a certain period of time will not be enforceable unless all of the terms are specified in order for a court to enforce it. (Price, timing, percentage of ownership, method of payment of the buy-in, etc.). Think of an option to purchase a house. Unless all of the terms for a binding contract are set forth in writing and agreed to by the parties, it will not be enforceable.

12. If you sign the agreement, be prepared to honor it. Do not sign an agreement thinking that there may be certain provisions that won’t be enforceable or that you won’t be required to follow in the future. Assume that every part of the contract is enforceable.

13. Restrictive covenants (sometimes referred to as covenants not to compete) are enforceable in Florida. Although there are many exceptions and defenses that can be used to defeat or prevent the enforcement of a restrictive covenant, unless you have the money set aside to finance litigation, expect to honor it if it is in the agreement. As an employee, your negotiation strategy should be to: a) have it removed completely, or b) reduce the period of time and reduce the geographic area as low as possible. Also, it should be worded so as to only apply to the office or location in which you work and to the medical subspecialty or type of practice in which you will work.

14. Avoid assuming any obligation to pay the premium for tail coverage for professional liability (medical malpractice) insurance, especially if the employer terminates the employment. If you are not able to negotiate this away completely: a) reduce the percentage you agree to pay to 50% or have it reduced 25% for each year you are in the practice, and b) insert a provision that if you maintain the same insurance company or obtain retroactive coverage, this will be substituted for tail coverage.

15. Visit the practice, hospital and area at least three (3) times before signing. One of these visits should be without the knowledge of the potential employer when you can tour the geographic area and, perhaps, the hospitals on your own.

16. Contact any physicians you know or have met in the past who live in the area or any surrounding areas. They may be able to provide you information regarding your potential employer, hospital or city that may affect your decision.

17. Do your “due diligence” before agreeing. Ask to see actual billing and collections figures and income statements. Talk to other associates. If your compensation will be based on productivity, speak with another physician who is similarly compensated about how his/her compensation is computed. Visit any hospital, nursing home or other facility where you will have privileges or see patients. Discuss the quality of the equipment and stuff with other physicians and physicians in surrounding communities.

18. Do not buy a permanent residence (house or condominium) during your first two years of employment with a new practice in a new location. Rent or rent with an option to purchase. This will give you much more flexibility if the employment situation does not work out to your expectations.

19. If you receive a signing bonus, put it in the bank in a CD or money market to use as needed in connection with tips 14 and 15 above. This may be your personal “golden parachute” if you need to leave a bad situation.

20. Do not start working until you have a copy of the employment agreement. A draft copy if not sufficient. A copy signed by you but not by the employer is not sufficient. The most common problem we see when there is a physician employment dispute is that the employee does not have a copy of the contract that is signed by the employer.

Contact a Health Care Attorney Experienced in Negotiating and Evaluating Physician and Health Professional’s Business Transactions.

At the Health Law Firm we provide legal services for all health care providers and professionals. This includes physicians, nurses, dentists, psychologists, psychiatrists, mental health counselors, durable medical equipment suppliers (DME), medical students and interns, hospitals, ambulatory surgical centers, pain management clinics, nursing homes, and any other health care provider.

The services we provide include reviewing and negotiating contracts, preparing contracts, helping employers and employees enforce contracts, advice on setting aside or voiding contracts, litigation of contracts (in start or federal court), business transactions, professional license defense, opinion letters, representation in investigations, fair hearing defense, representation in peer review and clinical privileges hearings, litigation of restrictive covenant (covenants not to compete), Medicare and Medicaid audits, commercial litigation, and administrative hearings.

To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

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