With almost 800 medical contract reviews in my legal career, I’d like to say that not much surprises me any longer. A USACS contract I recently reviewed for an emergency medicine physician seeking a hospital position at Lutheran Medical Center in the suburbs of Denver, Colorado just floored me.
I’ll preface my surprise by noting that despite Denver having median housing prices greater than $500,000 and being rated as a 2 on a 1-5 scale by more than 450 resident reviews, it has nonetheless been a persistently competitive market for emergency medicine. The average pay for an emergency physician is substantially lower than that offered for emergency medical care in almost every other area in the country. Contracts as far away as Wyoming have strong restrictive covenants preventing physicians from working even part-time in the Denver area.
In this emergency physician’s USACS contract, the “Compensation for Professional Medical Services” heading read as follows:
At Lutheran Medical Center, Employee shall be paid twenty-one dollars ($21.00) per hour for each clinical hour actually worked. Employee shall also be paid on a Relative Value Units (RVU) basis that is calculated on each billed patient seen by Employee at Hospital, multiplied by a conversion factor of fifteen dollars ($15.00) per independent visit and a conversion factor of six dollars ($6.00) per shared visit.
You read that right. The base pay being offered to a board-certified emergency medicine physician is $21 per hour. To that base pay is added productivity compensation of $15 per RVU for medical treatment. According to the 2021 CMS Fee Schedule (see ACEP link here), a Level 3 ED visit is worth 1.6 RVUs and a Level 5 visit (most serious conditions and hospital admissions) is worth 4.0 RVUs. If a physician spends an hour providing evaluation and treatment to a child with head injuries, the physician would earn $21 base pay plus $60 for the patient treatment. There’s no hourly floor in the USACS/Lutheran Medical Center contract, either. In other words, if the emergency department is slow and there are no patients for an hour, the board certified emergency physician who spent more than 10 years in college/medical school/residency and hundreds of thousands of dollars in education costs gets paid little more than the $15 starting salary paid in many fast food restaurants. To be fair, physicians can earn additional RVUs for procedures such as setting a broken bone and for interpreting tests in medical records, so compensation can increase somewhat depending on a patient’s medical conditions.
According to the list of Lutheran Medical Center hospital charges, for emergency care patients are charged up to $2,123 for a Level 3 emergency department visit, up to $3,500 for a Level 4 emergency department visit, and up to $5,510 for a Level 5 emergency department visit.
Should specialized care during medical emergencies be paid at a rate similar to entry level positions in restaurants? While both positions may provide exceptional care, only one will provide advanced care for emergencies and traumatic injuries.
Physicians may wish to consider practice locations other than the Denver, Colorado area when seeking job opportunities.
Need help reviewing or negotiating your medical employment contract? Here are some of the services I offer. Give me a call or e-mail me. I’d be happy to try to help.
3 comments
So obviously USACS is collecting quite a bit more than this paltry wage. The doctor is being contractually forced to give up a portion of their fees way more than Fair Market Value than what USACS is providing for them, a slot on the schedule maybe some benefits. This is why all the large groups and abusive smaller groups do not want you to see what is paid in your name. It exposes them to a fee splitting suit, perhaps a class action. EM is sadly in decline, transparency would help reverse that. Unfortunately I could not convince ACEP to stop doing business with such folks. Perhaps I will try again. https://journals.lww.com/em-news/fulltext/2021/03000/viewpoint__closed_books_are_the_lynchpin_of.4.aspx
Can non- compete clauses be enforced across state lines?
Good question. The answer is a lot more involved and depends on a lot of factors. I’ll give you some general considerations.
A noncompete clause is intended to protect the business interests of the employer/contracting entity. For starters, noncompete clauses are difficult to enforce against emergency physicians. Patients don’t go to an ER to see a specific provider – they go to the ER for emergency medical care from whomever is scheduled, so it would be difficult to demonstrate a legitimate business interest in preventing a specific provider from working at a competing hospital. A good representative case holding on this topic is Duneland Emergency Physicians v. Brunk. In that same vein, if the noncompete involves an area across state lines from which few patients travel to a practice/hospital trying to enforce the noncompete, it may not be enforceable. Again, the practice/hospital is not protecting a business interest by enforcing it.
Another consideration is choice of law. If the contract is in one state that favors restrictive covenants, but the employer/contractor is trying to enforce it in a state that doesn’t favor restrictive covenants, a court *might* disregard a noncompete claim based on the law that applies in the state where the breach is occurring.
Keep in mind that if an employer/contractor tries to enforce a noncompete against you – even if the claim is weak – you’ll still have to hire a lawyer and pay money out of your own pocket to litigate the issue. If you lose, you may be liable for substantial damages or your former employer/contractor may obtain an injunction to prevent you from continuing to violate the covenant. That’s why it’s so important to address this language before you sign a contract, not after the contract terminates.
Also keep in mind the FTC’s intent to ban noncompete clauses. Your question may be rendered moot with the FTC’s decision.