Berning & Affiliates

Confidential Treatment of Doctor CEO Information

An orthodontist client recently inquired about advisors in general and my position regarding whether the doctor could anticipate that the discussion with a consultant is confidential. Here is a portion of my reply with some modifications for the use on this blog. "I appreciate receiving your inquiry. This is an important question particularly given doctor's practices becoming ever more prominent in their market areas and so potentially more vulnerable. In my case, all my conversations are confidential unless, for example, two doctors indicate that they want to have me serve as the facilitator to help them develop their relationship and work through written terms. In that case, when I talk with one about a term(s) I will email or call the other to keep the process moving until the next three way conference call takes place. So, unless you request me to share our discussions, you can be assured that our conversation is private. But note, in providing a consulting service there are no specific rules of confidentiality. I must say however, if I shared confidences in the very small community that is, in this case orthodontics, I would not be practicing in this my 26th year!" In short, be careful with your confidential information and know who you are discussing your affairs with. Don't just assume that your confidences will be kept, instead just as this wise doctor did, ask and discuss your expectations regarding confidentiality.

"From Nordstrom to Wal Mart"

A long established doctor recently sold his practice to an energetic younger practitioner. The seller had an established reputation based on the care provided, personalized attention to patients and a business format provided by the excellent front desk staff. It is approximately two months since the practice transfer. Despite the seller providing suggestions, a guide to policies and procedures that have helped the success of the practice over the years as well as and daily experienced based perspectives to the purchaser, the practice is in upheaval. The seller received a call from a long time employee at home recently that was shared with me. The employee related that almost all systems are being changed, the schedule compacted and many other changes. The employee noted that one adult patient stated "the practice is being changed from a personal Nordstrom type caring environment to a more performance based Wal Mart type" environment. Every doctor has a right to develop and present their practice as they see fit. In CEO parlance this can be seen as a part of branding and also of course marketing. In the health care context it also relates to the subtle indicators of more or less doctor attention and care. One of the things this purchaser bought was the goodwill of the patients, a portion of which as the expectation that patients would return for care as needed. But care can be secured in many places today and big changes are often not welcome by patients. My view is that it is too drastic for this new owner and CEO to switch the practice to a very different brand so soon after the transaction and he will pay a price in lost patients and production.

Is An Attorney An Attorney For All Matters?

Three times in one week the same question came up with different doctors. I just have to vent my viewpoint, shared with all three and now for all my blog readers. Here's the question, in a modified form, asked by all three: "I know this is a transition of my practice and I also have some estate issues that need attention and I want to sell the practice facility and real estate, can't I just use the same attorney?" The simple answer is "yes", but also "no". Each of the areas mentioned above, transactional, estate / tax and real estate is a separate area of law, with of course overlaps. But the degree of sophistication required today to effectively and efficiently provide legal services in all those areas by the same person takes, in my view, an exceptional attorney. My experience has been that doctor CEOs are overseeing ever more complex practices with significant legal issues and they need expert assistance. I personally like to encourage that experienced and comment counsel with a working background in the needed area of the law be used. So even though you may need two or three attorneys for your affairs it is in your own best interest to have an expert in the given legal area on your team

Should A CEO Doctor Play Jokes On Staff?

One of my clients asked this question in light of the protracted and costly case, Woo vs. Fireman's Fund. The case was recently decided. Dr. Woo, an oral surgeon, decided to temporarily place in an assistant of his, Tina Alberts, fake boar tusks and then photograph her while she was under anesthesia in his chair. She brought suit against Dr. Woo, based on malpractice and invasion of privacy. Dr. Woo wanted his malpractice carrier, Fireman's Fund, to defend. They declined indicating that they had no duty to do so, because the dentist's conduct was outside the normal scope of dental practice. A a state appellate court and four supreme court judges agreed. But, on July 27th a majority of the Supreme Court of Washington sitting En Banc decided in Dr. Woo's favor. The Court reasoned that because Dr. Woo's conduct was "conceivably" within the realm of dental care, the insurer had a duty and should have covered him under his professional liability policy. The Court reinstated a $750,000 jury award to Dr. Woo, which also included a $250,000 settlement he paid the assistant. My response to my client was that, "No CEO in a health care setting should play a practical joke on any person, patient or staff, when that person is under anesthesia." Further, in today's more circumspect practice environments with staff of different ethnic backgrounds, ages and perspectives on appropriate vs. inappropriate behavior, great care should be taken before any joke should be played on staff. See Robert C. Woo, DDS, and Anne M. Woo vs. Fireman's Fund Insurance, NO. 77684-9, July 26, 2007. Read also David Ammons, Associated Press story July 27, 2007, 10:39AM