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| Dear Friend,
Big eyes and hollow legs.
That’s what my mother accused me of having when I was a kid. It was in the context of food. As in the two major food groups: pizza and Mexican food.
As I got older, I came to appreciate my mom’s point of view that too much isn’t too good for you.
But, unfortunately, I’m not talking about food, I’m talking about covenants not to compete.
Many medical group leaders have awakened to the fact that they must consider the use of covenants not to compete and other restrictive covenants to protect their most important assets, their physicians, from being poached by competitors (usually hospitals or their controlled/affiliated groups) or from simply walking out the door to compete on their own account.
However, in fashioning the terms of a CNTC, keep my mom’s saying in mind, because too much of a good thing (greater restrictions) isn’t a good thing at all in the world of enforcement of anti-competitive restrictions.
In general terms (CNTCs being mainly, but not exclusively, a state law issue), if a CNTC is valid at all, it will be enforced only to the extent that (and, in some cases, only if) its terms are found to be reasonable. “Terms” in this context include the scope, the length of the restriction, and the geographic area. The rationale is that there must be a balance between preserving the rights of the employer to protect its business with the rights of the employee to continue to practice his or her profession and earn a living.
Big eyes, such as “Physician will not provide any medical services within the State of X for a period of 50 years,” leads to failing the reasonableness test. (In fact, it fails the laugh test, too.) Failing the reasonableness test may render the CNTC wholly invalid or pruned in scope beyond recognition by the court, meaning that it was just a waste of time and money.
So, in all events, feel free to grab a slice (that is, to consider how CNTCs and other restrictive covenants may be used to protect your business) but don’t attempt to put hot pepper flakes all over the entire pizza to keep your brother from taking a slice (hmm, too autobiographical?). Your mom, I mean the judge, will smack your butt.
You can benefit from my teachable moment: As hard as it was for me to learn, in both pizza and CNTCs, less is more. |
| | | Business Life in the Time of Coronavirus Mini-Series
The coronavirus crisis caused a short term economic crisis for many medical groups. Our mini-series shows you the way out. Plus, many of the concepts discussed are applicable during both good times and bad.
[If you haven't already seen them, follow this link to watch our entire series.] |
| | Watch Tuesday's video here, or just keep reading below for a revised, more polished version:
I'm on my way to the office in Dallas, and I'm already thinking about dinner. Actually, I’m thinking about pizza and best practices.
There are many types of pizza: There’s really thin cracker-crust pizza. There’s the pizza from Naples which is probably the “original” pizza. There’s pizza from Rome, and there's New York pizza, the real rubbery, greasy kind. I love ‘em all. But they’re all different.
Can you imagine if there were a “best practices” in pizza making so that every single pizza maker strove for the exact same "best practices pizza". What would you get?
You wouldn’t have that delicious thin, Neapolitan pizza. You wouldn’t have the rubbery New York style pizza. I don’t know what you’d have; maybe Tombstone pizza, the frozen kind you can get in the supermarket.
So why do you think "best practices" are any better in any other industry, as in yours? If everybody followed best practices, all we'd get is consensus driven mediocrity. And there’d be little way to compete other than on price.
Think about that when someone says “strive for best practices." Instead, what you want to strive for is “next” practices. You want to strive for a better way of delivering, a faster way, a way that is qualitatively different. You want to compete on the basis of differentiation, and on attracting those that do, and repelling those who don’t, understand or appreciate what and how you provide it.
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| | How to Deploy the Secret Sauce of Opportunistic Strategy
Webinar On Demand
They say that COVID-19 has changed the world, creating the "new normal." Many of your colleagues and many hospital administrators are running scared.
Others, leaders like you, know that crisis means opportunity.
Let me provide you with the strategic tools and insights that you need in order to seize opportunities, whether they’re in the context of your current business relationships, the expansion of your business activities, or the creation of new ventures.
You will learn:
•Defense as a defective default: It’s necessary, but not sufficient.
•Exploiting weakness: Drop the guilt and identify opportunity.
•Flat line negotiation is fatal: Understand its myths and limitations.
•Negotiation reality: Learn to identify and deploy on multiple planes to affect the outcome.
•Maneuver: Harness the power of maneuver, both in overall strategy and in specific negotiation strategy.
Others see a crisis and freeze in fear. Learn how to see the opportunities and obtain the tools to increase your odds of obtaining them.
The price to attend is $479. The cost of not attending is astronomical. |
| | | Wednesday - Customer Service: Not Enough. Too Much. Hardly Ever Just Right. - Medical Group Minute
Watch the video here, or just keep reading below for a slightly polished transcript:
I called for housekeeping to make up the room while I was out.
When I returned the room was tidy. I was a satisfied customer. So I sat in a chair and began reading.
Then the phone rang. It was the housekeeping supervisor. She called to ask if my room had been made up. "Yes!" I was a satisfied customer.
About twenty minutes later, the phone rang again. It was someone from "customer service" who called to ask if my room had been made up. "Uh, yes." I was a bit puzzled.
And then, five minutes after that, the housekeeping supervisor called again to ask if my room had been made up. "Yeah, but you already called me." I was now inconvenienced.
Obviously, there's balance to be had. Some customer service is expected. Other customer service delights. Some, which is probably not really customer service at all but, rather, is following a checklist to absurdity, is actually an inconvenience.
A few years ago, I had outpatient surgery. No one from the facility called before or afterwards. I am still puzzled |
| | | Listen to the podcast here, or just keep reading for the transcript.
Here, courtesy of Tenet Healthcare and two terminated cardiologists is a lesson about firing physicians . . . and, when not to.
In 2018, cardiologists Amir Kaki, M.D. and Mahir Elder, M.D. were terminated from leadership positions at Detroit Medical Center hospitals and, as a result, lost their medical staff privileges.
In an award that became public, an arbitrator agreed with the physicians’ claims that Tenet Healthcare, DMC’s parent, acted with malice in terminating them and discontinuing their medical staff privileges as retaliation for Drs. Kaki and Elder raising quality of care and improper billing concerns. The arbitrator awarded $10.6 million in damages and ordered that their medical staff privileges be reinstated. In addition, the award included $624,000 in attorneys’ fees as well as discovery abuse sanctions of $110,000 against Tenet.
The doctors’ lawyer is seeking court affirmation of the award and, as might be expected, Tenet announced that it will seek to vacate the arbitrator’s ruling.
Although the story is certainly interesting on its own accord, it presents lessons for employers, whether they be facilities or medical groups.
It’s certainly not unheard of for healthcare employers to terminate physicians as a result of their advocacy for patient care or their other compliance/quality of care complaints.
And, it’s certainly not unheard of for fired physicians to claim that their termination resulted from such advocacy when it actually didn’t, or even that there was advocacy when there wasn’t.
Here are some takeaways:
- Employers must be diligent in implementing their compliance programs and in their overall efforts to take seriously any complaint concerning unsafe medical practices. Complaints and demands must be documented and they must be investigated to the level appropriate under the circumstances. Depending on the circumstances, for example a complaint by a physician that new equipment or supplies are required, the physician making the complaint should be kept apprised of the process and, even included in it. Fully vetting complaints and demands takes some, even if not all, of the sting out of a later claim that the complaining physician was fired to hide the complaint.
- I thought about not including this because of obviousness, but I changed my mind: Don't fire the messenger. And, even if that's not the reason for the termination, remember that bad timing will almost always cut against you.
- Disruptive physicians are wont to claim that their termination for cause was actually termination in retaliation for valid patient advocacy or as a result of some other improper motive. Employers must carefully screen out potentially disruptive job candidates. If it’s too late and they’re already employed, don’t bend over backward to “fix” them, allowing them time to “fix” you.
- Be careful to preserve corporate or other entity structures. Although it’s unclear from the story reporting the award against Tenet, I assume that there are multiple entities in-between the parent company and the facilities that employed and granted staff privileges to, the two doctors. Follow required entity formalities in order to compartmentalize liability.
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| | | Calibrate Your Compass
Read our exclusive RedPaper to guide you through this evolving situation.
The coronavirus crisis caused a short-term economic crisis for many medical groups. Our RedPaper shows you the way out. Plus, many of the concepts discussed are applicable during both good times and bad.
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| | Help Us Help You With Helpful Content
What tailored content would you most like to see during this
time? How can we focus on solutions to your most pressing strategic concerns?
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| | | | We all hear, and most of us say, that the pace of change in healthcare is quickening. That means that the pace of required decision-making is increasing, too. Unless, that is, you want to take the “default” route. That’s the one is which you let someone else make the decisions that impact you; you’re just along for the ride. Of course, playing a bit part in scripting your own future isn’t the smart route to stardom. But despite your own best intentions, perhaps it’s your medical group’s governance structure that’s holding you back.
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| In fact, it’s very likely that the problem is systemic. The Medical Group Governance Matrix introduces a simple four-quadrant diagnostic tool to help you find out. It then shows you how to use that tool to build your better, more profitable future. Get your free copy Free.
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| | | | Whenever you're ready, here are 4 ways I can help you and your business:
1. Download a copy of The Success Prescription. My book, The Success Prescription provides you with a framework for thinking about your success. Download a copy of The Success Prescription here.
2. Be a guest on “Wisdom. Applied. Podcast.” Although most of my podcasts involve me addressing an important point for your success, I’m always looking for guests who’d like to be interviewed about their personal and professional achievements and the lessons learned. Email me if you’re interested in participating.
3. Book me to speak to your group or organization. I’ve spoken at dozens of medical group, healthcare organization, university-sponsored, and private events on many topics such as The Impending Death of Hospitals, the strategic use of OIG Advisory Opinions, medical group governance, and succeeding at negotiations. For more information about a custom presentation for you, drop us a line.
4. If You’re Not Yet a Client, Engage Me to Represent You. If you’re interested in increasing your profit and managing your risk of loss, email me to connect directly. |
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