4 Tips for Managing Employed Physicians

A lawyer shares his top strategies for managing medical doctors. He advises making sure expectations are clear from the start and tells how to protect your hospital or health system when relationships go sour.

The employed physician trend shows no sign of stopping, with approximately 26% of physicians currently employed within a hospital or healthcare system. This creates new challenges for human resources executives, because these are professionals unaccustomed to being managed—and, in some cases, don't even comprehend what it means to be an employee.

"Lab techs, LPNs, RNs, PNs and so on are used to working under the direction and control of others," says A. Robert Fischer, an attorney for the White Plains, NY-based firm Jackson Lewis, specializes in defending hospitals and healthcare systems against disgruntled physicians formerly employed by them. "Physicians literally make life and death decisions… They feel that they should be given a very wide berth with respect to all matters of their professional lives," he explains.

"Most physicians go to medical school [without] hoping to manage other physicians, or giving it much thought. Nor do they give much thought to being employees on some rung of some ladder in an employment relationship," says Fischer.

Predictably, this culture does not always fit well into the context of an employment situation, and employed physicians are more likely to sue than other healthcare workers when employment doesn't work out. "For healthcare clients…. physician litigation constitutes easily 20% of the [litigations]," says Fischer. Given that only about 8% of healthcare employees are physicians, this is proportionally very large.

A dejected physician will often attempt to say he or she has been discriminated against. "We see discrimination, sexual harassment retaliation, gender, and disability discrimination. These run the range of statutory discrimination claims, with an emphasis on gender and disability," says Fischer.

"But, we see other claims as well," he continues. "Age, issues within the national practitioner database, whistleblower claims—especially in regard to peer review or criticism of another physician's work—breach of contract, contract not renewed for an unlawful reason, certain members of group not treated as well as others, and broader issues, statutory or otherwise."

As the burden of proof is on the employer to show non-discrimination, a thousand questions can run through the minds of HR executives when a potential lawsuit is threatened. Did the physician's managers document their poor performance? Were performance and employment expectations stated clearly? And, what will a jury think?

But, with some planning and strategy, organizations can prepare themselves, says Fischer.

1. Make Sure Physicians Know How to be Employees
"It's important to provide some context for what the physician's experience will be like as an employee," says Fischer. While most employees have had some experience being an employee prior to beginning their current career, a remarkable number of physicians went directly from high school to undergrad to med school without any real employment experience.

Fischer suggests setting up an orientation that lays out what the organization's expects of them, including the importance of coming to work on time, what happens during a performance evaluation, what a probationary period means, and so on.

This will make expectations clear to the physician—and is an opportunity to document that a conversation detailing expectations has taken place.

2. Make Sure Docs Expect Feedback
Fischer suggests establishing a framework for criticism as something that won't be entirely positive. Let physician know ahead of time when the conversation will take place and what to expect.

"Tell them when and where you will discuss performance and conduct issues. Give some background, especially for younger physicians who are new to holding a job. Get them used to the idea [that] there will be criticism," suggests Fischer.

"It's very useful to then point back to whatever conversation or communication you had previously," he adds. "You can say, 'Remember, we said there would be 180 day probation? It's been 180 days. Now, let's discuss how your probationary period went.'"

3. Offer Objective Criticism
It's important to keep criticism objective and fact-based, says Fischer. For instance, if no other physician has had patient satisfaction scores as low as this physician, you can point that out rather than saying "you don't get along with the patients."

Rather than a manager saying, "I feel like it takes too much time for me to manage you," they could say something like, "I'm spending more time dealing with you than all others under my supervision combined." Physicians are more likely to understand criticism if put in those terms, and courts respond well to quantified, objectified statements, too, Fischer points out.

4. Cover Yourself
But what happens if, after months of feedback and making your expectations clear, the physician just isn't working out?

"It really goes to setting the groundwork," says Fischer. "While certain behaviors are so dangerous you would terminate without warning, most problems exist for some time." In that case, Fischer says you must tell the physician the severity of the problem. "Say, 'we're not going to continue with this relationship unless this improves.'" Make sure to document that conversation and exactly what was said.

When it comes time to have the tough, painful conversation about discontinuing employment, Fischer suggests harkening back to the original warning. "'Remember, we had a conversation about this two months ago? We said you had to improve to a certain degree? Well, we don't think adequate improvement has been made.'"

Additionally, try impress upon the chief medical officer or others in senior leadership positions the importance of caution in giving a reference or writing recommendations. "That's confusing at best, case destroying at worst," says Fischer, who has seen employment court cases won by the plaintiff based on a glowing recommendation written by a sympathetic CMO.

"One safe thing to do—in the context of resolving any such claims—is to agree upon a reference," he says. Decide during the termination what will be said regarding future recommendations—and have everyone present sign off on it. Of course, simply giving dates of employment and title held may suffice, and is standard practice.

While managing employed physicians is a challenge, making expectations clear and documenting interactions can make things go more smoothly, and will minimize risk in cases where employees must be terminated.