Common Sense

Two Years Since Summa: What Have We Learned?


Issue: March/April 2019

Author: David A. Farcy, MD FAAEM FCCM
President, AAEM

 

It has been fascinating to watch the story continue to unfold with Summa Health and U.S. Acute Care Solutions (USACS). It’s been just over two years since the independent group staffing the Summa Health Emergency Department and its residency in Akron, Ohio were replaced by USACS on January 1, 2017, with just a few days’ notice. The residency was put on probation shortly after USACS took over, perhaps due to poor planning, not clearly understanding the ACGME and Residency Review Committee rules, and/or lack of a qualified core faculty. Later, after a failed appeal, the residency lost its accreditation, forcing every resident to scramble to find a new residency to finish their training. In the fall of 2017, USACS reapplied for a new emergency medicine residency at Summa. On appeal, Summa was not granted approval by ACGME, and they are not allowed to train residents at this time.

For most of the residents, this meant a hurried move out of state to a new program, leaving behind family and friends. I couldn’t imagine how stressful, emotionally draining, and disruptive this experience must have been for them. AAEM, ACEP, SAEM, and CORD all released press releases stating their concerns.

The Consequences of CMGs Running Residencies

During this tumultuous time, there were many articles and interviews with members of the prior independent group and USACS, with each side pointing the fingers at the others. Meanwhile, the residents who lost their residency were put in a very difficult position. The closing of the Summa Health residency sent shock waves across the academic world and raised concerns regarding contract management groups such as USACS managing residencies across the country.

Contract management groups have a poor track record for providing due process protections to their physicians. Will a contract management group running a residency program o!er due process for their residents? For their faculty? Will there be conflicts between their residency’s educational mission and their fiduciary duty to maximize profit for their shareholders?

In this transition, USACS hired a Program Director who previously had been a long-time core faculty member at Summa Health, but had left to become Chair of Emergency Medicine at nearby Akron General. His Akron contract included a restrictive covenant clause, prohibiting him from working for another hospital within a 10 miles radius for one year. He gave his 90-day notice to Akron General and soon after, was terminated from Akron General without cause.

USACS and their new program director then filed a lawsuit against Akron General Health System and its emergency physician group, Partners Physician Group. The suit asked for a declaratory judgment from the court, which is a determination that the restrictive covenant is unenforceable.

USACS, the plaintiff, alleged “the noncompete clause is not enforceable, as well as inapplicable because the new program director will be working for USACS and not Summa.” The brief went further stating that the Ohio courts have not supported noncompete agreements, “especially disfavored in the physician context because of the enormous impact they have on the public.” The complaint detailed that patients who go to an ED do not choose their doctor and that physician has not obtained any trade secrets from Akron General.

A geographic post-employment restrictive covenant (G-PERC), often called a “noncompete clause,” states that you are unable to work within a specified number of miles for a specified number of years should you resign or be terminated by your employer. Typically, these clauses also apply if the group loses its contract to another group. Unfortunately, noncompete clauses are common in many emergency physician contracts. However, in this unusual situation, USACS filed a suit to prevent the enforcement of another group’s noncompete on its new Summa Health Program Director. This lawsuit has been settled out of court for an undisclosed amount of money.

What Have We Learned?

AAEM continues to firmly oppose post-employment geographic restrictive covenants, which are typically used as a tactic to protect the hospital or the contract group, at the expense of the emergency physician, who are used as pawns. They should not be applicable for emergency physicians, who unlike private practice cardiologists or orthopedists, do not have patients who will follow them from one hospital to another.

Furthermore, emergency physicians do not ordinarily have access to any trade secrets, do not receive any education or training from their employers, and do not use referral lists as a source of patients. These are the usual arguments in favor of using restrictive covenants. Instead, restrictive covenants are commonly used in emergency medicine to interfere with physician practice rights and to control and exploit emergency physicians.

There are additional consequences to consider when CMGs that include restrictive covenants in their contracts are involved in residency training. The training of residents requires stability of faculty, the disruption of resident’s lives and education we saw in the Summa case highlights this fact clearly.

Emergency physicians should have the option to remain at their place of employment if the contract changes hands, or to take a new job nearby, rather than being forced to move far away. AAEM welcomes USACS as an advocate against restrictive covenants and in favor of emergency physician practice rights. We call on USACS to publicly state they will not include restrictive covenants and due process waivers in their physician contracts.

David A. Farcy, MD FAAEM FCCM
President, AAEM
Chairman, Department of Emergency Medicine
Director, Emergency Medicine Critical Care
Mount Sinai Medical Center, Miami Beach, FL

Mark Reiter, MD MBA FAAEM
Immediate Past-President, AAEM
CEO, Emergency Excellence
Academic Chair/Residency Director,
University of Tennessee-Murfreesboro/Nashville

 

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