Associate Agreement - Part 2

SIGNAGE

If the sign of the practice is to be changed, who is going to pay for the sign? If the names of both practitioners are to be set out on the sign, are there going to be steps taken to ensure that the associates are not represented as being "partners"? The appropriate principle of law indicates that persons carrying on practice together may be looked upon as partners if they either agree to be partners or they hold themselves out as partners. It is imperative that the signage or letterhead of the Clinic set out the fact that the practitioners are carrying on practice as associates, as the case may be, without misleading or confusing patients or anyone else who interacts with the practice. This same principle applies to letterhead for the practice if the names of the practitioners are to be set out on the same letterhead.

ADVERTISING

While the question of who is going to pay for advertising might seem like the most important question to be considered by the parties when dealing with this issue, it is not as important as dealing with the question as to who has control over its content. Obviously, the advertising content must be in conformity with the licensing board standards of the profession. However, neither party may wish to sign a "blank cheque" to allow the Clinic or the associate to engage in extensive advertising or even minimal advertising without the other practitioner's consent.


NAME OF THE PRACTICE

The agreement should set out clearly as to how the chiropractic practice is to be referred to, ie. "chiropractic clinic" or "Smith Chiropractic Practice". This may be important in maintaining the goodwill associated with the practice. The issue may not be very important if the associate has his or her own computer billing system, letterhead and, most importantly, a telephone, all of which allows the associate to establish a "practice within the practice". In any event, the use of a practice name should not be confusing to any patients attending at the Clinic.

TELEPHONE

In the case of a telephone, the options are that the Clinic will provide a telephone or the associate will provide his or her own telephone. The decision will have important consequences to both parties. If the Clinic provides a telephone system to the associate the Clinic can control the goodwill of the practice particularly when or if the associate chooses to leave the practice, together with more control on auditing practice issues concerning such matters as patient appointments. The associate might wish to use a separate system to allow for an easier transition upon a termination of the relationship. Expenses relating to long distance telephone calls will have to be delineated in the agreement.


Time and Space:

Unless otherwise stated in the Agreement, it may be presumed that the Associate has unrestricted access to the premises. If that is the case, it is incumbent upon the Senior Practitioner to ensure that he or she has properly outlined in the Agreement any limitations which should be placed upon the accessibility to the premises by the Associate. The access may relate to time and/or facilities. In the case of "time" the premises may be available on a full time basis or a part time basis. The parties may outline the specific days and time during which the premises are available to either of the Practitioners.

The Associate may also be designated certain treatment rooms which may be accessible to the Practitioner. In any case, the more important issue is whether the accessibility is exclusive to the Associate as compared to those situations where premises are available to a number of individuals at the same time, as in the case of a group practice.

For the purposes of the Senior Doctor, consideration should be given as to whether any additional associates will be brought into the practice at some time in the future. If exclusive use of part of the premises is given to an Associate, the Senior Doctor will be restricted from negotiating the use of the same facilities during the same time period to another associate.

Access to Computers:

While the issue of "computers" as it relates to Associateship Agreements is usually thought of in terms of billings, the issue should also be considered in terms of patient record keeping and future accessibility.

In the case of patient information, is the computer to be used by the Associate? What is the cost of adding the Associate as a designated practitioner on the Computer? Consideration must be given by the Senior Doctor as to what accessibility will be granted to the Associate in terms of the contents of the computer and more importantly what will happen upon a dissolution of the relationship. The parties must remember that the compute software is licensed and not owned by the Senior Doctor.

INSURANCE:

There are various types of insurance which must be considered by the parties to the Agreement, namely: malpractice insurance, occupier=s liability insurance, life insurance and disability insurance.

Malpractice Insurance:

There should be little discussion over the issue of whether the parties will maintain protective insurance. The only issue may be whether the parties will be obtaining coverage from the same company. The importance of this issue arises in those instances where the practitioners have assisted in the mutual treatment of a patient or action is taken against all of the practitioners as a result of an accusation that the practice constitutes a partnership. What the parties will not want is a situation where each of the practitioners is being insured by a different company whose position with respect to the handling of the complaint is being dealt with differently, ie. One company is of the opinion that the complaint should be settled while the other company wishes to vigorously defend the claim.

Occupier's Liability Insurance:

The Senior Doctor should maintain occupier's liability insurance which will deal with matters of potential liability arising from such things as "slip and falls" and "equipment difficulties" such as a table leg breaking and injury resulting to a patient. It is unlikely that malpractice insurance will cover such situations.

It is important that such coverage includes not only the owner/tenant of the premises and the employees and agents of the Senior Doctor but also any Associates at the premises. While this would appear to be a trite issue, at least one instance has arisen in which an Associate was placed in jeopardy as a result of not being included as a "named insured" on such a policy of insurance.

Life Insurance:

If there is to be a provision in the Associateship Agreement dealing with a buy-sell provision, it is imperative that there be life insurance to assist in the transaction. This is particularly important in those associateship agreements where the parties involve an established practitioner and a new graduate. This issue will be discussed in greater detail with the issue of the buy-sell provision of the Agreement.

Disability Insurance:

Since the Senior Doctor will wish to be compensated for his or her investment in the Practice notwithstanding the inability of the Associate to practice due to illness or injury, and in the event that there is a minimum payment being provided to the Senior Doctor, it is important that the parties consider the appropriateness of the Associate maintaining disability and overhead insurance.

Whose Patients are They?

The most often asked question relating to the issue of "patients" is: Who do the patients belong to? While the question may seem inappropriate having regard to the fact that it is improbable that a patient has signed an agreement with the Senior Doctor, and even if the patient has signed an agreement it is unlikely that it is enforceable, professionally or otherwise, the question has some importance in terms of the issue of a non-competition or non-solicitation provision.

As indicated previously, the parties to the associateship agreement may agree to any provisions as long as same are not illegal or contrary to public policy. The issues concerning "patients" usually involve the question of how patients will be designated to a particular practitioner, ie. On a rotational basis if a particular patient is not requested, and secondly what occurs if the associateship arrangement is terminated.

Termination of the relationship, as it affects the patients causes concern to the practitioners. The issue of what happens to "patients" upon termination of the agreement may relate to the matter of a non-solicitation provision, in that a practitioner may agree not to treat or approach a previous patient after leaving the premises. As long as the practitioner is not abandoning the patient, (alternative care is being provided to the patient in accordance with professional requirements and standards) the parties may agree that some sort of compensation is payable by the Associate to the Senior Doctor for each patient that leaves the practice with the Associate after the termination of the Agreement.

In addition, it is important that each doctor maintain a copy of the patient records in the event that both doctors, at some point during the association, have provided care to the patient. As a result, the Agreement may require that the Associate compensate the Senior Doctor for the copying of the patient records upon the termination of the relationship.

Consistency in Technique:

Having regard to the various techniques which may be practised by a chiropractor, ie. Acupuncture, activator, etc., it is important that consideration be given to the issue of whether there should be consistency in the method of practices by the practitioners. A patient should not be subjected to mixed messages relating to practice techniques. A patient should not be told by one practitioner that a particular modality is essential to a chiropractic practice when the other practitioner does not use such a technique or advises the patient that such treatment is not as appropriate as a "hands on" approach. If the practitioners make use of different technique approaches whether such techniques involve something as simple as the use or non-use of modalities, it is important the issue be dealt with in a pro-active sense so that the patients are provided the message that the practitioners wish to disseminate.

Associations:

While this provision may not be a serious matter which requires much negotiation between the parties, this issue may involve the parties considering the consistency between the practitioners as to their approach to practice. As such, if the Senior Doctor requires the Associate Practitioner to maintain membership in a provincial association or other professional group then such a requirement should be set out in the Associateship Agreement.