Doctor Employment Lawyer Blog

By: Poonam Khatri

Last week we started to address some of the physician employment contract issues that arise when you decide to partake in moonlighting activities. This week, we will address parts 3 and 4 of that discussion.

Part 3: Make sure you are covered.

Don't put your license or financial resources at risk to make a little extra money. Your employer may be paying for your malpractice insurance, but that insurance may only cover you for work done on behalf of your employer. If you plan to moonlight, first confirm that your moonlighting employer has appropriate professional liability coverage. If you have your own malpractice insurance, contact your insurer and disclose your plans. Failing to disclose your outside activities could result in a loss of coverage. In the alternative, supplemental malpractice insurance is also available to cover moonlighting.

Part 4: Special concerns for residents

On July 1, 2003, the Accreditation Council for Graduate Medical Education (ACGME) common duty hour standards went into effect for all accredited residency programs. These ACGME rules include the well-known requirement that a resident have a work week no longer than 80 hours, averaged over a four-week period.

The ACGME policy has a specific section devoted to moonlighting. The section on moonlighting notes that, "Because residency education is a full-time endeavor, the program director must ensure that moonlighting does not interfere with the ability of the resident to achieve the goals and objectives of the educational program."

Thus, as a resident your ability to moonlight will be limited and require approval from your program director. You may also be subject to periodic reviews in order to continue moonlighting.

In addition to these considerations, it is a good idea to execute a written contract with your moonlighting employer for both clinical and non-clinical activities. At a minimum, your moonlighting employment contract should address key terms of your employment and define your rights and responsibilities. This will help ensure that your moonlighting position provides you with enough flexibility in the event that your primary employment responsibilities change.

By: Poonam Khatri & Kristen Prinz

Moonlighting among physicians is growing in popularity. Often physicians, particularly residents and fellows, moonlight for extra income, especially those looking to pay off the massive debts from medical school. More experienced physicians also look to moonlighting for exposure to different practice areas, to keep their clinical skills sharp, or to improve their standing within the community.

Physicians looking to moonlight may choose from clinical or non-clinical opportunities. We have seen physicians obtain positions through billing companies, medical device providers, insurance companies, or on their own as expert witness consultants.

Moonlighting can be a great opportunity, but there are a number of important legal issues that a physician must consider before accepting a moonlighting position:

Part 1: Negotiate for moonlighting.

If you know you will need to moonlight to cover your expenses or, even if you just want to moonlight, negotiate this term on your way in. Most physician employment agreements do not allow moonlighting. Those that do, only allow it in certain limited circumstances.

Some employers have gone even further. They allow you to moonlight, but all income goes to the employer. Make sure you ask for exactly what you need: a way to make some extra money.

Ask questions before you agree to accept a position. Make sure you understand your obligations and the employer's requirements relating to moonlighting.

Part 2: If you didn't negotiate, read your agreement before seeking out any side work. Additional provisions may be at play.

Be sure to review your employment contract closely before accepting a moonlighting position. As explained above, many employers prohibit moonlighting altogether, claim ownership over income derived from moonlighting, or have an arduous process for getting moonlighting approval.

If your contract does allow moonlighting, other provisions in the agreement may put such income at risk. For example, a contract with the clause "While employed by Employer, any remuneration generated by Employee shall be solely that of Employer" can include not only income earned through outside sources, but also non-cash benefits. We assume you do not plan to work extra hours just so your employer can have some extra income. Make sure you are not defeating the purpose of moonlighting and read your employment agreement.

Non-compete clauses can also affect your ability to moonlight. Contracts will generally set out specific limitations of your non-compete, but they may not specify specialty practice restrictions. Don't be afraid to ask for clarification!

Your employer's policies and procedures for moonlighting approval can include anything from a simple written request, to a lengthy board approval process. However, failing to follow those policies can be considered a breach of your employment agreement. Abiding by the policies is the only way to protect your current employment while seeking approval for other opportunities.

To be continued.
PARTS 3 and 4, next week.