Published in Pain Medicine News on January 2012 and in Anesthesiology News on March 2012
PROTECTING TRADITIONAL PRACTICE IN TODAY’S ‘WE’ SOCIETY
BY: MARK F. WEISS, J.D.
The tides come in and out, ties get wider then narrower then wider again and society switches between respecting individualism and valuing community and cooperation. I call this the “Me-We Cycle.”
Currently, our society is heavily motivated by a “we” mindset, focusing on shared sacrifice, paying your fair share and giving back. Physicians are told that the future of health care is not in the “every man for himself” situation, but rather in the “it takes a village” world.
Of course, not everyone in a society buys into the “Me-We Cycle,” and that’s why trends eventually moderate and return to the antipode. People, businesses or organizations that espouse the other extreme can see the benefits of co-opting the current zeitgeist. For instance, as the current wave of collectivism shapes trends in health care, hospitals seek to ride the wave to further their “me” interests. Take the completely hospital-centric notions of accountable care organizations (ACOs), so-called “health care collaboration” and physician alignment as examples.
Physicians who want to survive the crush of the Me-We Cycle’s current collectivist position need to make sure they are not being taken advantage of. Internally, if you practice with others, you must take steps to ensure that your group is cohesive. Bringing cohesion to your group involves working through governance and management issues as well as weaving legal protections throughout your group’s agreements. These are not individual efforts; they require careful strategy and execution far beyond the traditional notions of shareholder, partnership, employment, and subcontract agreements.
Hospitals often use dissension within a group as both an excuse and a pathway to extend their tentacles of control. If there is no current discord within a group, hospitals often foster it.
For example, take a group consisting of three physicians, an owner and two employed physicians who have offices located adjacent to a hospital. The physician-owner has held a medical directorship at the hospital for some time. One of the employed physicians becomes unhappy with his subordinate role, despite his inferior skills and management style. Instead of striking out on his own, the dissatisfied physician approaches the hospital’s CEO who convinces the physician that it would be too expensive to start his own practice. Instead, the CEO argues that if the physician could get the other doctor to join him, the hospital would “sponsor” their new practice via an existing controlled medical group.
The two employed physicians take the bait. In this scenario, the hospital gains control of the practice, jettisoning its relationship with the original physician-owner. There’s now talk about folding the existing controlled medical group into a larger foundation model designed by the hospital to be its physician entity for its planned ACO.
To survive, you must take steps to stop or hinder the hospital’s efforts to take advantage through collaboration.
Seek alliances with similarly situated groups and explore ways of using the hospital’s existing medical staff bylaws and political support within the medical staff to preserve physician control.
Engage in a publicity push both within the medical staff and in the community at large.
Use hospital efforts to “align” physicians to argue for physician control.
If your relationship with the hospital involves a contractual arrangement, build in restrictions and protective provisions, such as prohibitions on solicitation and fees for outplacement to the hospital.
Eventually, the Me-We Cycle will shift back the other way, but this may take decades. If you’d like to wait it out, then you don’t need to take action other than to learn the words, “may I have my paycheck, please?”
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Mark F. Weiss is an attorney who specializes in the business and legal issues affecting anesthesia and other physician groups. He holds an appointment as clinical assistant professor of anesthesiology at USC’s Keck School of Medicine and practices with the Advisory Law Group, a firm with offices in Los Angeles and Santa Barbara, Calif. He can be reached by email at markweiss@advisorylawgroup.com and by phone at 800-488-8014.