The enforcement of these provisions typically relies less on equitable principles of physician coverage, and more on the prevailing jurisdictional law. In states that support a right-to-work statute—typically focused on the right to not require participation in a union to maintain employment—extending this rationale to non-exempt employees, this noncompete work exclusion may violate the right to work.

Due Process

Define what, if any, due process rights are available to the employee in a unilateral separation scenario. First, there may functionally be no contractual rights to contest a separation, as a termination without cause, or “no cause” provision invocation may avoid any discussion of rationale. Second, termination with cause often has declarative issues related to failure in licensure, certification, insurance qualification, civil transgressions, or criminal law violations. Typically, due process is not applicable in these definitive qualification issues.

Third, a mutual arbitration clause may compel this first procedural step in a contract dispute. Likewise, a litigation venue clause may be present, with notice paid in both cases to the location of resolution. Ideally, it should be the primary clinical location, rather than the location of a distant corporate headquarters, that decides venue.

Fourth, recognize that for hospital-based specialties, the co-termination of privileges mandates loss of business-specific hospital privileging as well. The physician may reapply; however, in an exclusive contract scenario, it will unlikely be successful.

Force Majeure

Force majeure or “greater force” provision was a seldom, if at all, invoked provision related to an unforeseeable circumstance beyond control of the parties. Typically, these events are specified in contract language that might include pandemic, natural disaster, war, or act of terrorism, and became more prominent after COVID-19. This change may include unilateral contract termination or change in material contract elements, such as time of engagement, terms of separation, liability insurance coverage, or compensation change.

However, this type of contract language clause is not meant to be invoked to alleviate financial responsibility for adverse market conditions, financial distress, or to avoid monetary losses for the business entity. The contractee should ensure that the “act of god” provision excludes the application of any market downturn conditions to this provision.

Summary

The keys to a successful contract negotiation include your ability to set priorities and be strategic about your goals. Attorney review, by someone practicing in health care law with contract experience, is helpful. Decide what is most important, target your high priority negotiation goals, and, after careful review, present all concerns initially.