Robert O. Baratta, MD, partner and CEO of Ascent Surgical Partners in Nashville, Tenn., lists nine potential disputes among surgeons in an ASC and explains how to resolve them.
1. Competitive instincts. "Every ASC is going to have disputes because it is bringing competitors together," Dr. Baratta says. "Physicians who are in competing practices, and will remain in them, will have to work together. You need a lot of diplomacy to get it right."
2. Locating a new ASC. A center that is located next to or even in the practice of one of the physician-partners is a justifiable concern to other partners. A patient visiting the center may conclude that it is owned by that one practice. "The concern is that the patient may perceive that physician to be a more a substantial player," Dr. Baratta says. The issue can be resolved by moving the location a little farther away, such as on a nearby lot or even another floor of the same building. Even if the ASC is still more convenient for some physician-partners to reach than others, this is not a significant problem, he says.
3. Naming a new center. If the center has the same name as the practice of one of the physician-investors, the same problem arises: It is too closely identified with one practice. The chosen name should not even have a subtle connection to one of the practices. Preferably, it should also not identify one particular specialty. If there are any plans to bring in another specialty, adopting a new name later on to accommodate that change creates a number of issues, such as filing legal papers and perhaps even interrupting referrals.
4. Deciding ownership percentages. Physicians usually would prefer to base ownership percentages on each partner's volume or income generated, but due to potential legal issues, such as Stark violations, it is safest to assign the same percentage to everyone. If physicians prefer different levels of investment, there are yet more complexities for multispecialty centers, where very different procedures have to be compared. For example, short ophthalmology cases would have to be compared with longer orthopedic cases. Equal shares avoid these problems. Physician-owners who prefer different percentages should consult with an attorney who is well-versed in this issue.
5. Deciding block time. Physicians in a new center frequently want the same block time, such as Monday at 7:30 a.m., but not all of them can have it, of course. If two surgeons do not have full schedules, their block times can be staggered, so that one surgeon has the preferred block every other week. If that is not possible, the block should be awarded to the surgeon with the most volume, especially if he will be there the whole day.
6. Selecting equipment. Surgeons who are just beginning to work with each other show wide variations in the preference items. To resolve this issue, create a trial platform to test each preference item. The company rep is invited in to demonstrate the equipment and everyone uses it for a limited period of time. "The physicians then meet and review their likes and dislikes of each piece," Dr. Baratta says. "ASC management presents a report on the economic impact of each piece." This can be convincing because physicians tend to respect hard data.
Choosing more than one piece of equipment is not an option. "It would be a disaster if the ASC had more than one piece," Dr. Baratta says. In addition to swallowing the high cost, the facility would have store supplies for both pieces, which would eat up storage space. If there is a hold-out in the discussions, the ASC often picks that physician's choice, he says. Usually the hold-out's choice is the "upgrade," the more expensive piece, which the others are more likely to accept. "It’s easier for all the doctors to move up," Dr. Baratta says.
7. Dealing with feuds. Serious personal disputes between physicians are comparatively easy to deal with. Scheduling can be arranged so that the two physicians are never in the facility at the same time.
8. Resentment of low-producers. Low-producing physicians, also known as "deadwood," can cause resentment among partners who are have higher volume but are getting the same investment income. The ASC's initial vetting process for physicians can weed out the low-producing physicians, but if not, the operating agreement, covering all investors, and the staff bylaws, covering all physician-users of the facility, can set a minimum number of cases.
9. Disruptive physicians. Dealing with disruptive physicians is often difficult. The operating agreement usually defines cases where a physician can be ejected — such as loss of license, a felony charge or drug abuse — but other kinds of behavior are harder to define. "It's hard to put your finger on lack of cooperation or emotional instability," Dr. Baratta says. When the behavior can be defined, the operating agreement should call for a remediation period of up to 30 days, during which the problem physician is counseled by a peer.
Learn more about Ascent Surgical Partners.
Related Articles on Disputes Among Physicians in ASCs:
How to Deal With Difficult Physicians
ACPE's Dr. Barry Silbaugh: Disruptive Physician Behavior Won't Go Away
Adopting Bylaws That Address Disruptive Physicians: Q & A With Tom Stallings of McGuireWoods