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Dimitry K., Esq.
Dimitry K., Esq., Attorney
Category: Legal
Satisfied Customers: 41221
Experience:  Multiple jurisdictions, specialize in business/contract disputes, estate creation and administration.
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I am a new general surgeon at hospital A in a 2 hospital (2

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I am a new general surgeon at hospital A in a 2 hospital (2 cities) system. at hospital A the 4 existing general surgeon receive pay from the hospital (on contract) to take unassigned call through the ER (a requirement to maintain staff privileges)(at hospital B also in the system but in a different town all the general surgeons (the same 4 + me and one other) receive pay from the same system to take unassigned call.) Is it legal for hospital A not to offer me payment also for the unassigned ER call that I am required to take as a responsibility of have staff privileges?
Thank you for your question. Please permit me to assist you with your concerns.

You mentioned that you are not paid to take a call at all. What happens if this unassigned call requires you to perform services, do you end up doing all that without compensation?
Customer: replied 3 years ago.

the compensation I speak of from the hospital is simple to have me available for a particular 24 hour time period. any compensation for actual patient care (ie evaluation and management including surgery) is not compensated for by the hospital it is strictly the patient's responsibility which in an ER visit if he or she does not have insurance no payment will likely be recouped from the patient for the services render.


Oh, I see---so the employer (hospital) is requiring you to be available but they are not paying you for that time. Are you salaried otherwise or do you get paid hourly?
Customer: replied 3 years ago.

None of the general surgeons are employed by the hospital. there is a group of 3 and now 2 solo surgeons at hospital A and one additional solo surgeon at hospital B. the hospitals (A and B) (each in different cities but both under the same 501 corp) have independently contracted with the surgeons to compensate us for performing a duty that is mandated by our medical staff (not the hospital) bylaws and rules and regulation to have the privilege to be on staff at the hospitals.


Based on what you are stating, the surgeons are not employees, they are independent contractors? Is that correct?
Customer: replied 3 years ago.





Great! I just wanted to understand the employment relationship since that can drastically affect the payment structure and the agreement. In terms of an independent contractor relationship, there is no requirement that the contracting party treat all independent contractors the same--each may have different terms and conditions, payment structures, responsibilities, goals, and even quality objectives and requirements. Hence, if you were hired later and were not offered additional funds for the time you are 'on-call' but others were, it is still legal and permitted. Since you are an independent contractor, you are able to contact HR and renegotiate terms to make them more in line with others, but the different terms (and potentially wages) would not violate contractor agreements.


Hope that helps.

Customer: replied 3 years ago.

you do not understand.

none of the doctors are employed by the hospital. the hospital is paying all the surgeon filling the hospital's EMTALA requirements ( to have an on call list printed) except me at hospital A but I am on the EMTALA hospital call schedule. is this legal?

Oh, I see, Frank. Sorry, I misunderstood. I understand that the surgeons are not employed by the hospital but they are contracted to work for the hospital. The entity that pays you and cuts your check is the one who ultimately has the agreement with the hospital, correct? Or am I still misunderstanding here?
Customer: replied 3 years ago.

EMTALA. the surgeons must take call whether they are paid or not. this is a requirement from the medical staff bylaws to have staff privileges. the hospital has selectively decided to compensate 4 out of the 5 surgeons who must take call to maintain their privileges. is this legal from EMTALA standpoint.

Thank you for your patience.


I have been reviewing the Emergency Medical Treatment and Active Labor Act on your behalf. There is actually no requirement under the act that surgeons be paid during their formal time. They CAN be paid, but they do not have to be paid. The reason is somewhat odd so please bear with me. Under the The Federal Antikickback Statute (42 U.S.C. § 1320a-7b(b)) of all things, the statute made it a criminal offense to knowingly and willfully offer, pay, solicit, or receive any remuneration to induce or reward referrals of items or services reimbursable by a federal healthcare program. In essence paying someone more for work they are already contacted to do may violate federal law. The facilities can get around this requirement based on Advisory Opinion 07-10 from 2007 which stated that any compensation should be based on 'fair market value', has to be in an arm's length for actual or necessary items or services. Furthermore compensation should be based in any manner that takes into account value or volume of referrals. In essence payment for what is deemed to be already a requirement is based on the conditions and mutual agreement of the parties (medical professional and payor) but there is no requirement that this service be further compensated. It does not stop you from negotiating for such terms going forward.


Hope that helps.

Customer: replied 3 years ago.

Still, in some markets, there remains sufficient leverage for hospitals to enforce medical staff bylaws that require physicians to provide on-call coverage (this is my case) while paying the other four surgeons for the same services. is this legal?

Frank, Thank you for your follow-up.


There is most definitely leverage to do so, but as I pointed out above, there is no legal requirement that independent contractors be treated the same. The contracts and terms can be different. Hence, it is not illegal to pay them and not you, but as I point out, you can still negotiate the terms of your agreement with the party from whom you receive compensation and require identical treatment to other professionals in your position.


Good luck.

Customer: replied 3 years ago.

no compensation is being offered to me. is it legal for a 501 corp receiving federal healthcare funds to refuse offering compensation to the only minority doctor for a mandate service EMTALA on call coverage?



They are not required to offer compensation. It is not illegal for them to refuse to offer this compensation regardless of your status as minority--they simply do have to offer it to anyone. It can be a contractual perk if all parties agree, but it is not a violation. Further, as an independent contractor rather than an employee, the standard for proving discrimination is far harder and higher, so if the only claim you have to this is because you are a minority but you have no direct empirical evidence, it is not enough to claim that you are being somehow adversely treated by the facilities in question.


Good luck.

Customer: replied 3 years ago.

They are not required to offer compensation. It is not illegal for them to refuse to offer this compensation regardless of your status as minority--they simply do have to offer it to anyone. Are you saying once they offer compensation they must offer to all or they can selectively offer compensation to some dr taking the same call but not to others? thank you for this final clarification

Thank you for your follow-up, Frank.

You asked:

They are not required to offer compensation.

It is not illegal for them to refuse to offer this compensation regardless of your status as minority--they simply do have to offer it to anyone.
Correct again.

Are you saying once they offer compensation they must offer to all or they can selectively offer compensation to some dr taking the same call but not to others?
They can offer this to whomever they choose, they DO NOT have to offer it all, but to those they wish. A lot of the time to cut costs they essentially 'grandfather' past doctors with this perk but do not offer it to new and subsequent hires. It is then not based on race or other factors, but simply seniority or timing. Now, having said that, if they hire someone else after you who happens to be white, and they offer his this perk but still refuse to offer it to you, the potential claim for disparate treatment on grounds of discrimination can be revisited, but as there as yet no direct link between those who receive and those who do not, it is as yet a tough argument for you to make. Please understand that I am not discounting it at all, simply looking at it from the position on whether or not there is enough to at least consider it as a viable option.

thank you for this final clarification
It was my pleasure, Doctor. Hope I can help you again.


Dimitry, Esq.
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