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Dear Friend,
Thinking about how you think can be very profitable for you.
It sounds simple, but in reality, it’s very difficult.
Difficult, that is, to control what appears to be a built-in human nature: The impulse, when dealing with a potential deal partner, to have the mindset of a seller.
Let’s step back for a moment.
Note that I said “mindset” to distinguish the concept of inner talk and expectations from the fact of the matter that you will still engage in activities to, in essence, “sell” the deal, as you desire it, to the potential deal partner, whether we’re talking about a deal with a hospital, a hospital system, a referral source, or with anyone else.
It’s one thing to engage in activities to convince the opposite side to engage your services, or to acquire whatever it is that you’re selling or providing. However, and here’s the point, it is an entirely different thing to do so from the mindset that you are somehow less than, or will be lucky to be selected, or that you are some sort of a supplicant to the other side.
The best way to put this is that even when you are, in actuality, selling, your mindset should be that of a buyer. Would you buy what the other side is selling you?
Let’s put this into a very easy to understand context.
Even in the situation in which your entity is doing a deal, for example, with a hospital system, in which the system will be providing stipend support to you, don’t negotiate as if that stipend support is a gift or a handout or a “May we have more please?”. Instead, view the deal and evaluate it as if you are a buyer of that relationship, with something extremely valuable to offer.
Let your deal partner prove itself worthy of what you have to offer.
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| | Tuesday - Success in Motion Video: Why You Want or Don’t Want An Arbitration Provision in Your Contract – Rebroadcast
Watch Tuesday's video here, or just keep reading below for a slightly polished transcript: |
| | Let’s talk today about arbitration agreements in a contract setting. Why would you want one? Is it a tool to help you? Or, is it a tool to be used against you?
Many people believe that arbitration or some other form of private decision making is better than going to court. Maybe it is, and maybe it isn’t.
But maybe the question that you must ask yourself in determining whether arbitration is better or worse for you is slightly different: “Would you like to give up your right to trial by jury in a civil action?” Or, “would you like to give up courtroom protections?”
Oftentimes, people think that an arbitration provision is placed into an agreement because it is going to be quicker, easier, and more direct, and therefore it's going to save time and money in the event of a dispute.
But, as any experienced attorney will tell you, arbitration can go on, and on, and on.
In fact, a colleague was once involved in an arbitration that had dragged on for eighteen months. That would be almost impossible in a courtroom setting. For her, and for her client, arbitration certainly wasn’t faster than a trial. Do you think that it was cheaper? No way! It was far more expensive.
Second, when considering an arbitration provision imposed on you, or inserting one into an agreement yourself, think about who you will be arbitrating in front of. There are solo arbitrators who are unaffiliated with any arbitration company. There are arbitration companies like JAMS or ADR. Then there’s sort of the “grand daddy” of them all, the American Arbitration Association.
Specifying the arbitration “forum” in the agreement can itself impact the odds that you or the other party will file a claim. For example, the AAA has very formal rules for how an arbitration is conducted and its filing fees can be very expensive.
Third, you need to consider discovery rights when crafting, or becoming bound to, an arbitration provision. In other words, what rights to take depositions, to require the other side to provide information via interrogatories, etc., exist?”
Similar in some ways to attorney’s fees provisions, arbitration provisions can be used to frustrate the ability to resolve disputes. While they seem warm and fuzzy, the process itself can be more burdensome than trial, as well as more expensive than trial. It can be a disincentive to do what arbitration is supposedly, in the popular vernacular, there to accomplish - a quick, simple, and inexpensive resolution.
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| | | Wednesday - Medical Group Minute Video: Conflicts of Interest: Do You Have One?
Watch the video here, or just keep reading below for a slightly polished transcript:
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| Conflicts of interest. Everyone’s talking about them. Do you have one? They’re apparently bad. Or are they?
But what in the heck does “conflict of interest” even mean?
When you think about it, “conflict of interest” is a term of a type similar to those other PC favorites, “greed” and “fair share” (which, by the way, are two sides of the same coin): terms that are simply lobbed at someone in an attempt to gain the upper hand. Oh, and conflicts of interest prohibitions are the basis for termination, lawsuits, and arbitration without the right to conduct discovery.
Reality check: Life is filled with conflicts of interest. My interests are different than yours, your interests are different than mine, and both of our interests are different from that of a third person’s. So, we all have conflicts of interest and that doesn’t make it bad, it only makes it a fact that they exist.
In my work representing medical groups in their dealings with hospitals and health systems, I’m seeing more and more facilities imposing prohibitions on “conflicts of interest” via contract. And some are even attempting to impose “conflict of interest policies” on all affiliated physicians via the medical staff’s bylaws or rules.
What are those provisions? Are they simply a disguised form of covenant not to compete, which may or may not be legal? Are they restrictions on referrals outside of the hospital’s sphere, in violation of a number of federal laws? Are they, in essence, backhanded ways of requiring physicians to refer to the hospital, creating potentially, both federal anti-kickback statute and state law violations, and, depending on other terms involved, violations of Stark?
I don’t know exactly what a conflict of interest is, but beware if you’ve agreed not to have one. Because even the threat of one can be used as leverage for getting you to stop doing whatever it is that you’re doing or to prevent you from doing whatever it is that you want to do.
I know that hospitals don’t see it this way. All they ask is that you stop being greedy and give up a fair share (i.e., all) of your interests. After all, they deserve it.
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| | Thursday - Podcast: Have You Coordinated your Contracts? |
| Listen to the podcast here, or just keep reading for the transcript
The audio quality on this recording may not be up to the usual super-high standard (that’s a shout-out to Sean in the Dallas office, who does all the podcast audios as well as the video editing) because I’m recording this in my car on my iPhone.
I was just thinking today about the necessity of coordinating things across the contractual platforms that your business or practice has.
The specific thing I was thinking about was the importance of coordinating provisions in a hospital contract, so say it’s a hospital emergency department contract with the provisions in your groups’ work agreements, let’s call them employment agreements, with your emergency medicine group’s physicians.
For example, you might have provisions concerning indemnification in a hospital-exclusive contract, what are the matching provisions in the employment agreement? You might have representations and warranties in one agreement, how do they match with the representations and warranties provisions that you’re obtaining from the individual providers.
Just don’t view these documents as stand-alones. You could find that by coordinating things you’re able to shift varying degrees of liability as well as your willingness to enter some provisions in one context or the other, because you’re covered on the other side.
You’ve got to look at the whole picture. In essence, everything is related, there’s the whole notion of cross-platform performance.
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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 here.
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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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