Understanding the Basics of Restrictive Covenants in Employment Agreements.

BACKGROUND: Restrictive covenants are common in contractual agreements involving physicians and need careful consideration to minimize potential conflict during the term of the contract and on physician departure from a group practice or hospital system. METHODS: A general overview of the different components of restrictive covenants is provided, including specific information related to noncompetes, nonsolicitations, and nondisclosure agreements. RESULTS: In general, states will uphold restrictive covenants if the elements of the noncompete are reasonable regarding geographic distance restrictions (e.g., <20 air miles), time restrictions (e.g., <2 years), and scope of services. However, states vary considerably in the interpretation of restrictive covenants. Other components of the contract, such as alternative dispute resolution (mediation and/or arbitration) and buy-out clauses (i.e., liquidated damages provisions), should be considered at the time the agreement is negotiated. CONCLUSIONS: States are balancing the protection of business interests with the protection of free trade. It is important that physicians seek counsel with an experienced health care attorney with respect to restrictive covenants in his or her specific state. A simple, well-written, and reasonable restrictive covenant can often help limit legal conflict and expense.

Are You Ready to Negotiate Your First Employment Contract? Experience of More Than 700 Plastic Surgeons.

BACKGROUND: Plastic surgeons have been shown to be unprepared to negotiate their first employment contracts. Previous survey studies have attempted to assess plastic surgeons' first employment contracts to outline common pitfalls in contract negotiation. With this study, the authors aim to expand these previous studies and help plastic surgeons become prepared to negotiate their employment contracts. METHODS: A seven-question, cross-sectional survey was sent to attending-level surgeon members of the California Society of Plastic Surgeons, the American Society of Plastic Surgeons, the Texas Society of Plastic Surgeons, and the American Cleft Palate-Craniofacial Association. Questions investigated plastic surgeons' first contracts. Correlations were determined using a two-sample Wilcoxon rank sum test in an attempt to link these questions with overall satisfaction. RESULTS: From the 3908 distributed surveys, 782 (20 percent) responses were collected, and 744 were included for analysis. The majority of respondents were found to join a group-centered, private practice following residency. Surprisingly, 69 percent of surgeons did not use attorney assistance when negotiating their contract. Although greater than 70 percent of respondents reported a salary of $200,000 or less, satisfaction with one's contract was most strongly correlated with a salary of greater than $300,000 (p < 0.0001). However, only 12 percent of respondent surgeons were able to secure such a salary. CONCLUSIONS: This study examined the largest, most diverse plastic surgeon cohort to date regarding surgeons' first employment contract. Although the authors' findings indicate that certain factors should be prioritized when approaching a first employment contract, they ultimately recommend that all surgeons take into account their personal priorities and attempt to proactively define their terms of employment before signing a contract.

How Internet Contracts Impact Research: Content Analysis of Terms of Service on Consumer Product Websites.

BACKGROUND: Companies use brand websites as a promotional tool to engage consumers on the web, which can increase product use. Given that some products are harmful to the health of consumers, it is important for marketing associated with these products to be subject to public health surveillance. However, terms of service (TOS) governing the use of brand website content may impede such important research. OBJECTIVE: The aim of this study is to explore the TOS for brand websites with public health significance to assess possible legal and ethical challenges for conducting research on consumer product websites. METHODS: Using Statista, we purposefully constructed a sample of 15 leading American tobacco, alcohol, psychiatric pharmaceutical, fast-food, and gun brands that have associated websites. We developed and implemented a structured coding system for the TOS on these websites and coded for the presence versus absence of different types of restriction that might impact the ability to conduct research. RESULTS: All TOS stated that by accessing the website, users agreed to abide by the TOS (15/15, 100%). A total of 11 out of 15 (73%) websites had age restrictions in their TOS. All alcohol brand websites (5/15, 33%) required users to enter their age or date of birth before viewing website content. Both websites for tobacco brands (2/15, 13%) further required that users register and verify their age and identity to access any website content and agree that they use tobacco products. Only one website (1/15, 7%) allowed users to display, download, copy, distribute, and translate the website content as long as it was for personal and not commercial use. A total of 33% (5/15) of TOS unconditionally prohibited or put substantial restrictions on all of these activities and/or failed to specify if they were allowed or prohibited. Moreover, 87% (13/15) of TOS indicated that website access could be restricted at any time. A total of 73% (11/15) of websites specified that violating TOS could result in deleting user content from the website, revoking access by having the user's Internet Protocol address blocked, terminating log-in credentials, or enforcing legal action resulting in civil or criminal penalties. CONCLUSIONS: TOS create complications for public health surveillance related to e-marketing on brand websites. Recent court opinions have reduced the risk of federal criminal charges for violating TOS on public websites, but this risk remains unclear for private websites. The public health community needs to establish standards to guide and protect researchers from the possibility of legal repercussions related to such efforts.

La pandemia de la covid-19, la fuerza mayor y la alteración de las circunstancias en materia contractual / The covid-19 pandemic, force majeure and changed contractual circumstances / A pandemia da covid-19, a força maior e a alteração das circunstâncias em matéria contratual

La declaratoria del estado de emergencia, a causa de la pandemia de la covid-19, exige un análisis de la vigencia de las relaciones contractuales y cómo estas pueden verse afectadas por eventos extraordinarios, imprevisibles e irresistibles que impidan el cumplimiento de las prestaciones, así como aquellos casos en los que la alteración de las circunstancias puede llevar a que una de las partes exija al juez recomponga el contenido de la prestación pactada o la resolución del contrato.

The declaration of a state of emergency due to the covid-19 pandemic requires an analysis of the validity of the contractual relations and how these may be affected by extraordinary, unforeseeable and irresistible events that prevent the performance of the services, as well as those cases in which the alteration of circumstances may lead one of the parties to demand that the judge recompose the content of the agreed service or terminate the contract.

A declaração de estado de emergência, devido à pandemia da covid-19, exige uma análise da vigência das relações contratuais e como estas podem ser afetadas por eventos extraordinários, imprevisíveis e irresistíveis que impeçam o cumprimento das prestações, assim como aqueles casos em que a alteração das circunstâncias podem levar a que uma das partes exija que o juiz recomponha o conteúdo da prestação acordada ou a rescisão do contrato.

El papel de la Corte Constitucional en el análisis de los contratos de medicina prepagada / The role of the Constitutional Court on the analysis of contracts of prepaid medicine programs

RESUMEN A partir del año 1991, con el establecimiento de la actual Constitución Política colombiana y la designación de la Corte Constitucional como guardiana y protectora de la misma, los valores constitucionales han permeado todas las materias y áreas del derecho, inclusive aquellas que se entendían dispuestas a la autonomía de la voluntad de los particulares. El contrato de Medicina prepagada es un buen ejemplo de este fenómeno en la medida en que la Corte Constitucional colombiana, mediante sentencias de revisión de tutela, con la intención de proteger el derecho a la salud y reprender las conductas contrarias al principio de buena fe, ha limitado la libertad contractual de particulares -empresas de medicina prepagada-, en beneficio del usuario de este servicio. Esta protección se ha realizado imponiendo a las empresas obligaciones y cargas de verificación del estado de salud del paciente y prohibiendo la inclusión de cláusulas generales de preexistencias y exclusiones en los contratos. Sin embargo se encuentra un vacío en lo referente al deber de los usuarios de actuar de buena fe.(AU)

ABSTRACT Since 1991, when the current Colombian Constitution came into force and the Constitutional Court was appointed as its guardian and protector, constitutional values have permeated all subjects and areas of law, even those that were previously considered as private matters. Prepaid medicine contracts are a good example of this phenomenon, since the Colombian Constitutional Court has limited individual freedom of contract to private parties -prepaid medical companies- for the benefit of final users of this service through "acción de tutela", in order to protect the right to healthcare and to prevent some behaviors that violate the principle of good faith. The Court has demanded private companies to assess the health condition of patients and has prohibited pre-existent and exclusion clauses that diminish the responsibilities of said companies. Nevertheless, there is a gap in the law regarding the duties of good faith that concern the user, which will be addressed in this paper.(AU)

[Data protection, radiation protection and copyright: Problems of transferring results in assessment practice]. / Datenschutz, Strahlenschutz und Urheberrecht: Probleme der Befundübermittlung in der Begutachtungspraxis.

In Germany, the medical assessor is subject to the law on contracts for work and services ("Werksvertragsrecht"). When a medical expert assesses a subject on behalf of a third party, there is no contractual relationship between them. In the field of private insurance law and in social insurance law, the medical expert is faced with various procedural requirements. Failing to meet these legal requirements often makes the assessment difficult or even impossible. The transfer of radiographs to the medical assessor is dealt with in the German X-ray regulations ("Röntgenverordnung"). The assessor, who is without doubt an examining doctor, has the right to have the radiographs temporarily made available (§ 28 et al.). Passing on the radiographs is all the more appropriate if by doing so additional X-ray examinations can be avoided. The right of access to medical data in the social security law, apart from X-ray regulations, is regulated by German Civil Code (BGB) § 810 and German Basic Law section 1 paragraph 1 in connection with section 2 paragraph 1 ("§ 810 BGB; Art. 1 Abs. 1, Art. 2 Abs. 1 GG"). In the absence of third party interest worthy of protection, the right of access to assessment records has to be granted to the subject, who will then authorize the examining medical expert to exercise this right. In private insurance law, only the private health insurance has its regulation concerning obtaining information about treatment or the access to medical assessments. In other types of insurance the medical assessor's right of access to medical examination data and/or the basis for medical findings can only be derived from secondary obligations as part of the insurance contract or directly from general constitutional personal rights.

The Health Legislation Amendment Act 2013 (QLD) and Queensland's health assets privatisation dispute.

'New legislation in Queensland has provided a "pathway" for the privatisation of health assets and services in Queensland, which effectively realigns the health care system to the financial market. This column explores how this legislation contained the antecedents of the Queensland doctors' dispute when doctors roundly rejected new employment contracts in February 2014. It also argues that such legislation and its attendant backlash provides a valuable case study in view of the federal government's 2014 budget offer to the States of extra funding if they sell their health assets to fund new infrastructure. The move to privatise health in Queensland has also resulted in a government assault on the ethical credibility of the opposing medical profession and changes to the health complaints system with the introduction of a Health Ombudsman under ministerial control. The column examines these changes in light of R (Heather) v Leonard Cheshire Foundation [2001] EWHC Admin 429, a case concerning the obligations of a private entity towards publically funded clients in the United Kingdom. In discussing concerns about the impact of privatisation on the medical profession, the column points to a stark conflict between the duty to operate hospitals as a business rather than as a duty to patients.

[Current legal framework conditions for running and utilization of biobanks: Part 3: ownership and rights of use]. / Gegenwärtige rechtliche Rahmenbedingungen für den Betrieb und die Nutzung von Biobanken: Teil 3: Eigentum und Nutzungsrechte.

The organizing institution of a biobank can be of public or private law in nature and the form can be freely selected. Biomaterials must be legally valued as objects whereby inalienable personality rights are still valid even if ownership is transferred. The treating physician does not automatically acquire a comprehensive right of ownership or utilization for the materials taken during the treatment. The biobank acquires tangible property and user rights on the samples by a legal agreement between the donor and the biobank. Reutilization clauses in submission contracts should not be used due to the danger of a formularization development and surprise clauses. During the processing of biomaterials within the biobank substantially new characteristics can appear which have an effect on ownership and commercialization rights. The donor does not have a utilization right in the sense of a patent or copyright. If there are changes in the legal form and the use by third parties, the declaration of consent by the donor remains fully effective. There are special risks for the donor if the biobank transfers these biomaterials. This must be clarified before finalizing the agreement on sample transference and utilization in the sense of an informed decision.

Employee contract issues for dermatologists.

Employees and employers routinely face negotiating and preparing physician employment contracts. It is important for both sides to know and understand the basic information on what a comprehensive employment contract for a dermatologist should contain. There are various employment contract provisions from both the employee's perspective and the employer's perspective that must be considered when preparing physician employment contracts. This article provides basic advice and recommendations on requirements that should be included in such contracts. It suggests legal pitfalls that can be avoided through various contract clauses.

Valuing and selling a practice.

Surgeons, as they contemplate retirement, wrongly believe that their practices do not have financial value. In fact, a well-organized efficiently functioning office with an emphasis on excellent service in combination with a constant stream of patients make it financially ideal for the new surgeon. Being able to assume such a practice can be a very smart financial decision. The practice's worth can be determined by a careful analysis of the practice financials and an evaluation of the functioning of the office and employees. Purchasing such a practice can be, economically, a very smart move by a new surgeon. Payments are made over time at a rate that allows the surgeon to make a good living, leaving him with real equity once the payments are complete. The departing surgeon, who had spent years building this successful practice, gets some of this value back in the form of an income stream to supplement his retirement. This process should be considered in virtually every case. Do not just "close the door."

Neoliberalismo en salud: La tortura de trabajadoras y trabajadores del Instituto Materno Infantil de Bogotá / Neoliberalism in health: the torture of the health care workers of the Bogota s Instituto Materno Infantil (child and maternity hospital)

Objetivos Relacionar históricamente las transformaciones más significativas del Instituto Materno Infantil (IMI) en su proceso de crisis, cierre y liquidación con las experiencias de sus trabajadores/as. Encontrar elementos vivenciales y teóricos que interconecten el proceso de privatización de la salud con las experiencias de resistencia y dolor/sufrimiento de trabajadores/as. Métodos Etnografía inscrita en corrientes críticas y apoyada en trabajo de campo constante y colectivo, investigación histórica (fuentes primarias y secundarias) y entrevistas semiestructuradas con cinco mujeres que trabajaron por más de quince años en el IMI. Resultados Una línea del tiempo con cuatro periodos principales: Los años de gloria (hasta 1990), Llega el neoliberalismo (1990-2000), La crisis y las resistencias (2001-2005) y Liquidación (2006-). La narrativa de las mujeres entrevistadas devela múltiples agresiones que se intensificaron desde el 2006 generando dolor/ sufrimiento, relatos que ilustran violaciones a sus derechos humanos y laborales. Discusión Proponemos analizar las conexiones entre los diferentes tipos de violencia y el dolor/sufrimiento bajo la categoría tortura, entendida como acciones violentas que causan dolor físico-emocional, las cuales son ejecutadas por actores de poder sobre otros que desafían alterarlo. Enfatizamos en las burocracias, el confinamiento, los agentes torturadores y los resquebrajamientos a la unidad mente/cuerpo para argumentar que esta relación neoliberalismo y tortura pretende eliminar los últimos trabajadores/as de la salud del país con garantías laborales para avanzar en la acumulación de capital que genera la creciente sobreexplotación del trabajo y la mercantilización de la salud.

Objectives To link, from a historical point of view, the most significant transformations of the Instituto Materno Infantil (IMI) [the oldest child and maternity hospital of the country] during its process of crisis, closure and liquidation with the experiences of the hospital workers. To find experience-based and theoretical elements that can interconnect the process of health care privatization of the country with the workers' experiences of resistance and pain/suffering. Methods Critically-oriented ethnography based on continuous collective field work, historical research (primary and secondary sources) and semi-structured interviews with 5 women who worked at the IMI for more than 15 years.Results: A time line of 4 main periods: Los años de gloria [The golden years] (up to 1990); Llega el neoliberalismo [Neoliberalism arrives] (1990-2000); La crisis y las resistencias [Crisis and resistances] (2001-2005); and Liquidación [Liquidation (2006-20??)]. The narratives of the interviewed women unveil multiple aggressions that have intensified since 2006, have caused pain and suffering and are examples of violations of human and labour rights. Discussion We suggest to analyze the links between the different kinds of violence and pain and suffering as torture. This category is defined as the set of violent actions that cause physical and emotional pain, which are performed by actors in positions of power over other people who challenge that power and are part of modern States' ideological principles around a defined moral social order. For the IMI workers' case, the ideological principle that is being challenged is health care neoliberalism. From the analyses of bureaucracy, confinement, torturing agents, and the breaking-off of the body-mind unit we conclude that this relationship between neoliberalism and torture aims to eliminate the last health care workers of the country who had job stability and full-benefits through public labour contracts. Their elimination furthers the accumulation of capital generated by increasing over-exploitation of labour and commodification of health care.

Precarious employment and health: analysis of the Comprehensive National Survey in Japan.

Recent studies suggest that unstable employment contracts may affect the health of workers. Many Japanese workers working full time in ostensibly permanent positions actually operate within unstable and precarious employment conditions. We compared the health status of Japanese workers with precarious employment contracts with that of permanent workers using the 2007 Comprehensive Survey of Living Conditions of the People on Health and Welfare (n=205,994). We classified their employment status as 'permanent' vs. 'precarious' (part-time, dispatch, or contract/non-regular) and compared their health conditions. Among both sexes, precarious workers were more likely than permanent workers to have poor self-rated health or more subjective symptoms, with more workers in full-time employment suffering from serious psychological distress (SPD) and more female workers who smoke. Using logistic regression, we identified a positive association between precarious employment and SPD and current smoking among workers engaged in full-time employment after adjusting for age, marital status, and work-related conditions. This study demonstrates that precarious employment contracts are associated with poor self-rated health, psychological distress, and tobacco use, especially among people working full-time jobs. These results suggest that engagement in full-time work under unstable employment status impairs workers' health.

Perils, pitfalls, and benefits of a surgeon as a health system employee: the contracting process.

One would be hard pressed today to find a general surgeon or subspecialty-trained general surgeon who has not been approached by a health system to discuss employment. The majority of physicians find these initial discussions with a hospital administrator daunting at best regardless of whether they are just finishing residency or fellowship training or have had many successful years of private practice under their belt. Just as real estate has the mantra of "location, location, location," I would suggest that physician employment by a health system should have the mantra of "relationship, relationship, relationship." The following tips provide guidance on how to better understand the potential perils, pitfalls, and benefits of specific content sections of a standard template employment agreement between a health system and a physician. Physicians should review, understand, and be ready to engage in dialogue with the hospital administrator before involving attorneys. My experience is that if the dialogue begins with the attorneys representing each party, the opportunity to fully develop a partnership relationship between the parties is either lost or at minimum severely delayed in its development.

[From information to the right to advice, the responsibility increase in aesthetic surgery]. / De l'obligation d'information au devoir de conseil, une étape de plus dans la responsabilité en chirurgie esthétique ?

The law stipulates that the patient should be informed by the surgeon. For plastic surgery the right to advice has also become jurisprudence. This right obliges the surgeon to take an active part in his patient's decision. The medical contract is obsolete since the law of 4th march 2002. Thus medical staffs are only responsible if they are in fault. On the other hand the legal obligation to establish an estimate before operating and to give a withdrawal date constitutes a real consumer's contract between the surgeon and his patient. Maybe this is the reason why the right to advice, which is common practice in commercial or service contracts, is now also important for the plastic surgeon.