Excerpted from The Biggest Legal Mistakes Physicians Make: And How to Avoid Them
Edited by Steven Babitsky, Esq. and James J. Mangraviti, Esq. (©2005 SEAK, Inc.)
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Executive Summary
Call responsibilities significantly affect physicians’ quality of life, both personally and professionally. Nevertheless, many physicians fail to have candid discussions with prospective employers about this crucial issue because they do not want to be perceived as being unwilling to work hard. Also, they believe incorrectly that nothing could be worse than the workload of residency and fellowship. Understanding how call is addressed in an employment situation can be indicative of how many other matters are handled by the employer. In addition, unwillingness by an employer to discuss this important consideration candidly could indicate that the employer may be hiding something or that call responsibilities are unfair, unduly burdensome, or both. It is imperative that physicians fully understand what constitutes call responsibility in a practice.
Mistake 1 Assuming Call Will Be Divided Fairly among All Physicians
Physicians often assume that call will be divided fairly in a practice. They assume that if there are two physicians, call will be divided evenly between the two; if there are three physicians, call will be divided evenly among the three; and so forth. Also, physicians typically focus on compensation and benefits when they review and negotiate employment terms and not on call responsibilities. However, discussions regarding call often reveal crucial information about how an employer treats its employed physicians overall. An employer that is reluctant to discuss call (and be fair about it) often is secretive and unfair in connection with other aspects of practice operation.
Action Step Physicians should seek to discuss call candidly with prospective employers before an offer of employment is accepted. If a prospective employer is not forthcoming about the issue, physicians should ask why. If they do not get an acceptable answer, employment should be reconsidered. Assumptions should never be made.
Mistake 2 Failing to Ask about Senior Status
Many practices either informally or formally excuse physicians from taking call when they reach a certain age or have practiced for a certain length of time. This is particularly common in obstetrical and surgical practices. Aside from adding to the work and call responsibilities of the other physicians, there can be economic implications for everyone if the physicians working less do not have a commensurate adjustment in their compensation.
Action Step It is essential for physician candidates to ask specifically if and when physicians are excused from call responsibility and how this affects compensation. The ages and tenure of all of the practice’s physicians should be calculated on a time line to determine how call will be affected going forward assuming that there is no change in physician staffing. If, based on this analysis, it appears that the call responsibilities for the remaining physicians will increase significantly, the addition of new physicians or the modification of exemptions from call should be considered, as well as adding a stipend for call. Reductions in call responsibility should result in compensation adjustment so that funds are available to compensate for the greater workload being assumed by the other physicians and/or to retain additional physician staff.
Mistake 3 Failing to Ask about Cross-Coverage
Many physicians, especially those in small practices, cover for each other so that the call responsibilities are shared among a larger number of physicians. This is known as “cross-coverage.” The benefit of cross-coverage is that each physician has to assume call less often. One disadvantage is that the volume of patients being covered under a cross-coverage arrangement is much higher because the physician on call covers for a larger number of physicians. There is also greater liability risk associated with cross-coverage because the covering physician often does not know the patients who require assistance while he or she is on call. Reimbursement for services can be a problem, and patient complaints can arise if they are billed for noncovered or out-of-network services. Covering groups should participate with the same insurers and managed care organizations to avoid billing complications.
Action Step Physicians should ask about cross-coverage arrangements. Cross-coverage arrangements should be entered into only by compatible practices. Communication between the covering physician and the physician with regular responsibility for the patient is essential. A mechanism to ensure sufficient timely communication must be implemented by the practices covering for each other.
Mistake 4 Failing to Ask about Ward Service
Under federal regulations, hospitals are required to have a list of physicians in each specialty who will be available to treat patients after they have been evaluated by emergency room physicians (sometimes referred to as “ward service”). Since the hospital must ensure coverage in each specialty seven days per week, 52 weeks per year, depending on the number of physicians on staff at a hospital, ward service can be extraordinarily burdensome, simply by virtue of the number of days and nights that need to be covered. This burden is exacerbated by the fact that many patients who require services from on-call specialists are uninsured or indigent. Also, the medical staff bylaws at some hospitals exempt physicians who have been on staff for a long time from having to participate in the rotation, thereby increasing the responsibilities of the remaining physicians. Some hospitals provide stipends to physicians providing ward service, but many do not.
Action Step In evaluating a practice opportunity, physicians should inquire about ward service at the hospitals at which privileges will be maintained. They should ask whether and how hospital ward service is integrated into the practice’s call rotation. If the employer physician is exempt from, or otherwise does not participate in, hospital ward service, this responsibility may be separate from, and in addition to, call responsibilities for the practice.
Mistake 5 Failing to Ask about Holidays
Illnesses and injuries do not take holidays but physicians must remember holidays when considering call responsibilities. Both national and religious holidays should be discussed to ensure that national holidays are allocated fairly and that religious accommodations can be made to the extent possible. Some practices rotate so that each physician covers some of the national holidays. If physicians in a practice are of different faiths, it may be easier to accommodate each physician’s religious needs because they are usually not the same. How will religious conflicts, particularly if holidays overlap, be addressed? Also, physicians should consider how holidays will be handled if they fall on a weekend or on a Friday or a Monday. If a holiday falls on either day, will coverage for the holiday be part of weekend call so that noncovering physicians have a long weekend off?
Action Step Physicians should discuss how holidays are handled in a practice. How call for a given holiday is handled may vary from year to year depending on when the holiday falls on the calendar. However, some general agreement as to responsibility for covering both national and religious holidays should be reached.
Mistake 6 Failing to Ask about Vacations
The amount of vacation and education leave each physician takes can substantially affect the actual burden of call responsibility. This is particularly true in a two- or three-physician practice in which physicians cover each other for weeks at a time, especially if consecutive weeks of vacation are taken. A significant disparity between the amount of vacation taken by the senior and junior physicians can greatly increase the call burden for the junior physician, even if call is otherwise divided equally, because the number of weeks per year that call is actually shared will be limited.
Action Step Physicians should determine the vacation and education allotment for all of the physicians in the practice. They should also ascertain whether consecutive weeks of leave are permitted. If call is to be divided equally and one physician has a larger vacation allotment than another, the physician with the larger allotment should be on call a greater percentage of the time than the physician with the smaller allotment to ensure that over the year, call is scheduled equitably.
Mistake 7 Failing to Define Hours of Call Duty
It is important that hours of call duty be agreed upon so that the physician going off call can transfer responsibility to the physician going on call on a timely basis. It is also important that the turnover occur at a time that is practical given each physician’s other professional responsibilities. For example, transition will seldom be smooth if it occurs when one physician is in the operating room or both physicians are in the middle of office hours with patients. A failure or inability to assume call responsibility on a timely basis can cause friction between physicians.
Action Step Physicians should agree on hours of call duty in advance to avoid transition problems.
Mistake 8 Failing to Define the Expectations of Call Duties
Physicians should define what services constitute call responsibility. At a minimum, an on-call physician will be required to respond to medical emergencies that arise while the office is closed. Depending on the nature of the patient population and the practice specialty, some problems can be handled by telephone while others will require the covering physician to see the patient at the office or hospital. Since the appropriate response will depend on the nature of the emergency, the response required will not be known in advance. However, there should be an overall trend in the number and types of calls received, how often calls can be taken at home, how often it will be necessary to go to the office or a hospital. A physician should ask about these trends, as well as determine whether the on-call physician is responsible for any other professional or administrative matters. For example, some practices require that the on-call physician review and approve all of the telephone requests for prescription renewals received on that day.
Action Step Physicians should determine what services are generally required to be rendered while they are on call.
Mistake 9 Failing to Clarify Reimbursement and Compensation Issues
Physicians should clarify how services rendered while on call are affected by reimbursement and affect compensation. If substantial uncompensated services or disproportionate call coverage is rendered, adjustment to compensation may be appropriate. Similarly, if services are rendered to patients who are insured through a capitated contract with an insurer or other payer that makes a fixed monthly payment to the patients’ primary care physician and services are rendered by an on-call physician who cannot bill for his or her services, how will the on-call physician be compensated? Physicians should also determine how additional services for patients first seen while on call (e.g., those who presented in the hospital emergency room) will be provided. For example, if a patient requires surgery, will the physician who saw the patient while on call provide it?
Action Step Physicians should address reimbursement and compensation issues related to their call responsibilities.
Mistake 10 Failing to Obtain Commitments
It is important for physicians not only to ascertain how the practice handles call and matters that can affect call responsibilities, but also to obtain a commitment as to how they will be handled during the term of their employment. An employment agreement need not include the specificity of a call schedule, but it should at a minimum address how call will be allocated and scheduled. Physicians should also have a good understanding about any exemptions from call, the duties to be undertaken during call, and follow-up care. Any uncertainties should be addressed.
Action Step Terms relating to the parameters of call responsibility should be incorporated into a written employment agreement signed by the parties.
Conclusion
Physicians contemplating employment relationships should be sure that they have a good understanding of what call responsibility entails. They should obtain a commitment from their employer that call responsibilities will be equitable and reasonable.
Written by:
Lisa D. Taylor, Esq.
Peer reviewed by:
Michael F. Schaff, Esq.