Swiping Left on Unspoken Expectations

August 25, 2021

Setting expectations is critical for a successful business relationship. In this episode Michael and Brad share a classic story of unmet expectations between a famous board certified plastic surgeon and his employed physician. Tune in as we zoom out and look at the bigger picture of physician employment agreements, what we refer to as the Sensei Plan, and the importance of good communication.

Listen to the full episode using the player below, or by visiting one of the links below. Below is the episode’s transcript which has been edited for readability. If you have any questions or would like to learn more, email us at info@byrdadatto.com.


Intro: [00:00:00] Welcome to Legal 123s with ByrdAdatto. Legal issues, simplified through real client stories and real world experiences. Creating simplicity in three, two, one.

Brad: Welcome back to another episode of Legal 123s with ByrdAdatto I’m your host Brad Adatto with my cohost Michael Byrd.

Michael: Thanks Brad. As a business and healthcare law firm, we’re often immersed in the heavy details of a particular issue or project. It’s beneficial, if not mandatory, to every so often take a step back and evaluate the bigger picture. This season’s theme is Zoom Out. We’ve all been stuck in the life of a global pandemic, so today we are going to take a step back and look at how the issue we discussed will be impacted in our new normal.

Brad: I’m excited for day story. It’s a classic, it’s one you and I have been talking about for years, and I’m glad our audience is going to get to hear it today.

Michael: Yeah I mean [00:01:00] we’ve actually learned our own lessons from this story on how to guide our clients and employment contract situations. As you and I were prepping I started thinking about our own interviews we have conducted over the years to hire people. We have some really funny stories.

Brad: Yeah. I definitely don’t think we should go down the path of lessons learned about bad hire decisions and I know that over the years we’ve had many moments where there were red flags and they were completely ignored even when they were hitting in us in the face. So let’s just keep it much lighter. Michael, what is a funny interview memory of yours?

Michael: So one of my favorites and you’re going to remember this. So this was at our old firm. I noticed on this young lawyers resume that she listed spear fishing as a hobby.

Brad: Oh man, this is the one guy really spicy.

Michael: Yes. And you know, you are effective in your resume if you list [00:02:00] something that’s a hobby and we can do a podcast on just that many years later. We had almost completed the interview with her and the interview had gone great. She actually was a leading candidate for the job.

Brad: She had great grades, good internships, she was crushing the interview basically.

Michael: And I think the one caveat at that point is just, we really hadn’t formed a connection with her yet. I mean, she was understandably so as an interview setting pretty tense and was giving us, you know, her prepped answers. She was doing great, I was just looking for something to lighten the conversation and see just kind of who she was as a person and just learn about her kind of on a personal level.

Brad: Yeah and for us making that connection is pretty important. We try to protect our team, we have a great team and [00:03:00] it’s really important to us. So clearly the spearfishing on her resume was a plant, like it should have been begging for us to ask some question about it.

Michael: And Brad, unfortunately it worked. I asked the question and things took a turn. The mood shifted from job interview to that of a bad romance song.

Brad: It did. It was like the voice changed and I expected some like bad, soft music to start playing in the background.

Michael: Yeah. Her answer started with, one summer in a remote area, off the coast of France, she was taking summer courses and working. And then she went on to say that she met a local boy who was spear fishing out in the water.

Brad: Yeah, it was getting a little hot in there. And seriously, this went on into great detail for at least 10 minutes.

Michael: And we can’t overstate the great detail part [00:04:00] because it was getting really uncomfortable. It was a play by play about them, about the local boy, about spending the summer together. And of course learning how to Spearfish which seemed very incidental to the overall story. And we were very uncomfy and did not ask any follow up questions.

Brad: And I kept wondering at some point, if she was going to break out like summer loving from Greece and maybe some backup singers were going to pop out and maybe we were being punked or something. Or maybe like the local boy might be waiting in the lobby at the end and they can reunite, but we kept still sitting there staring and she kept telling the story and we just, we didn’t want to make eye contact with each other or I thought we might burst out laughing. Because I didn’t know what just happened honestly.

Michael: Yeah, same. And we felt like we were moments away from TMI. And I guess actually in retrospect, we were [00:05:00] immersed in TMI the whole time because it was the most memorable part of the interview and actually she took herself out of the lead for that position. Yeah. What about you? What’s your funniest interview story?

Brad: I don’t know if it’s the funniest because that one, that is definitely the summer loving one. It was actually, if not the funniest, but still one of the most awkward ones because obviously it demonstrated, if you put something on your resume, you can have a good story, just don’t go on and on and on and on, just have some conciseness to it. But that leads me to another point. If you have something on your resume, please be able to explain it. Several years ago, you and I were interviewing again for a law clerk position. On this person’s resume it noted that while they were in college, they stated that they’re the chief executive officer of some limited liability company.

Michael: Oh yeah. I remember this one on paper, we were excited. We had a young entrepreneur in our office and if I remember correctly, he went to my college, he went to [00:06:00] UT.

Brad: That’s correct. But like the last story we asked, what we thought would be a straightforward question, like tell us about this company that you were the CEO of and what did it to.

Michael: He made the mistake of being brutally honest. He was not behind the confidence portrayed in the listing on the resume. He just kind of came fully clean.

Brad: So this company that he was the CEO of was actually a limited liability company that owned a house that his dad bought so while he was at UT, he could live there during college and as his job, he basically made sure that he could live there and his friends paid rent and he went on to tell us how his dad thought it would look good on his resume.

Michael: Yeah. So daddy bought him a house and he was named the CEO of the company that owned the house.

Brad: Not that there was anything wrong with that by the way.

Michael: No, no, I would agree, but I would also [00:07:00] say that this is the interview version of form and substance that we talk about, where if you’re going to go out there and say, hey, I was a CEO of a company on your resume, you better have a good story to back it up.

Brad: I totally agree with that. I wish he would have done a better job of practicing what he learned as the acting CEO. Anything probably would have been better than my daddy made me do it.

Michael: Well, today’s story, Brad actually relates back to the interview process for a physician employment agreement. It’s a classic story of unmet expectations that both our client and the employed physician carried into the employment relationship.

Brad: Let’s get started, Michael.

Michael: So today our client in this story is a board certified plastic surgeon. He’s another famous surgeon that has made his way into one of our episodes. He is well-known around the country and would. His practice [00:08:00 actually still would be viewed as a dream landing spot. We’re going to call him Dr. Boomer.

Brad: Uh I know the story and I’m pretty sure Dr. Boomer did not go to the University of Oklahoma for college. So let’s guess he’s a baby boomer?

Michael: Oh yeah. The generational communication gaps in this story are so on point, so cliché, it’s hilarious. It was not very funny when it happened. Yes. But when you look back, I mean the stereotype stereotypes we associate with the different generations seem to be in full force with the expectations that each of them carried into this employment situation.

Brad: Any moment he would be like, get off my lawn, I got to go watch Matlock. So let’s get back to the story.

Michael: Okay. Dr. Boomer was ready to hire a young plastic surgeon to eventually buy the practice from Dr. Boomer.

Brad: Yeah, and we should do a whole episode on the strategy. We typically, we’ve [00:09:00] called this before the sensei plan. The idea here is that you, the senior physician, you’re going to hire a physician, teach them how to be a great doctor, eventually teach them how to be a great partner and then eventually transition that younger physician to take over the practice.

Michael: So Dr. Boomer had a fellow working with him that year after she had been a senior resident.

Brad: Yeah. And fellowships are a common stage for doctors. It’s that one year of hyper-focused practical training after their formal schooling has been completed. And it’s kind of like the apprenticeship after the last six years of post-college medical training.

Michael: So let’s call this young physician Dr. Millennial.

Brad: Even I don’t need to ask why that’s the nickname.

Michael: So Dr. Boomer and Dr. Millennial had a great experience working together during the fellowship year. They operated together on many cases and got along well personally and were interested in a [00:10:00] longer-term relationship.

Brad: Yeah. And this is not unusual scenario for a fellowship to turn into a long-term opportunity. Dr. Boomer called us a good six months prior to the fellowship ending. I remember this was a pretty straightforward contract.

Michael: Yeah. It actually, for us doesn’t get much easier. I mean, they knew each other, they worked together and they had decided that they were kind of using our words, kind of kicking the can down the road to figure out what the buy-in would look like. And just to hit the pause button a second on that, you know, when you’re bringing someone in to employ them and they’re going to buy in, sometimes you get a little bit into the weeds and try to figure out how to define what the ownership’s going to look like. And that’s some hard work and it can be messy. And other times like here it’s like, hey, you know what? The next step in the relationship is to be employed together. Then we’ll move on [00:11:00] to that next step. And so it just really reduces the things that you have to figure out, basically what are the terms of this stage of their relationship, the employment stage, and making sure everybody is on the same page.

Brad: Yeah, I think it’s important to note for this story, Michael for our audience, Dr. Boomer had never hired a physician before. He was working through some of the compensation incentives, but you know, this is his first time really ever bringing on a physician.

Michael: Yeah. And you know, to be fair, there is something to figuring out the comp plan and making it match. And here, Dr. Millennial was being heavily recruited around the country and she had a lot of opportunities. And so that helped kind of dictate the structure that Dr. Boomer was going to have to offer her. And so he went with a more kind of competitive, higher based salary with an incentive structure that [00:12:00] kicked in after a certain level of collections were performed.

Brad: All right. For the audience, they ended up joining together. Michael, what happened next?

Michael: What did not happen was good communication. I received the first phone call that there were some issues over a year after Dr. Millennial had joined. So picture us, in fact, at this point, you and I had worked together during the contract phase. I kind of finished it off, like signed it, you and I didn’t talk once about it. We probably didn’t even think about it. And then all of a sudden, a year later I get a call from Dr. Boomer. The symptom to the problem and the reason for the call was that Dr. Millennial was not very busy. In fact, she was not even operating enough to offset her large salary that had to be offered.

Brad: So why was she so slow?

Michael: Well, this is where the generational [00:13:00] communication gap came into play. So Dr. Boomer was triggered emotionally and so when I started to ask the why question it got pretty anger, emotion came out pretty quick and unloading about how lazy Dr. Millennial was being. She was not doing anything to generate business. He went on this diatribe about all the things he did when he got out of school to become busy when he was a young and hungry surgeon.

Brad: Yeah. This is the whole, I walked a mile in snow uphill, both ways speech. So yeah, we’ve heard it.

Michael: Yeah. I got a snoot full of it that day and I’m sure she did as well, or some version of that. I suggested to Dr. Boomer that maybe I could talk to Dr. Millennial to just learn a little bit more from her because [00:14:00] I didn’t want to just assume that she was lazy. Usually there’s more to the story. So I got on the phone with Dr. Millennial and this time she was quickly triggered emotionally, which is kind of funny. If you think about it, we represented the practice and she was so triggered that she was ready to unload on me, the practices attorney, just by asking a simple question of why she wasn’t so busy. And she went on to say that, unloaded, that she had all these choices around the country to join all these prevalent practices and she showed up to this practice every single day to work and there were no patients there waiting for her to operate on. Her friends who worked reconstructive cases at the hospitals around the country could barely keep up with all the patients flooding in.

Brad: Yeah, we tried to get them on the same page and [00:15:00] tried to set the expectations for her and him, but Michael what happened?

Michael: It’s hard to overcome Dr. Boomer’s perception that she’s an entitled millennial wanting to be spoon-fed and Dr. Millennial’s perception that she was walking into a busy practice and that Dr. Boomer had an overflow of work waiting for. So it proved too little too late. Dr. Boomer lowered Dr. Millennials salary after year two to match her production. She was gone six months later for another opportunity.

Yeah, no Bueno. So let’s take a quick commercial break and when we come back, Michael, let’s talk about the issues outside the contract to help minimize the likelihood of stories like this happening for our audience.

Access+: Many business owners use legal counsel as a last resort, [00:16:00] rather than as a proactive tool that can further their success. Why? For most it’s the fear of unknown legal costs. ByrdAdatto’s Access+ program makes it possible for you to get the ongoing legal assistance you need for one predictable monthly fee that gives you unlimited phone and email access to the legal team so you can receive feedback on legal concerns as they arise. Access+ a smarter, simpler way to access legal services. Find out more, visit byrdadatto.com today.

Brad: Welcome back to Legal 123s with ByrdAdatto. I’m your host, Brad Adatto here with my cohost Michael Byrd. Now, Michael, this season is Zoom Out and there’s a lot to unpack with Dr. Boomer’s story as part of our zoom out theme, talk about the bigger picture with physician employment agreements, and really I guess it’s not just physician employment agreements, any type of employment agreements.

Michael: [00:17:00] Full disclosure, it’s not that hard to read what an employment agreement says. You don’t have to be a lawyer to read what it says. Now sometimes there’s fancy words in there that people don’t know what it means, but it’s not that hard to help put together, at least for an attorney, the basic employment terms for a client. Yeah, for attorney, if you step back there’s much more at play than the terms inside the contract and that’s actually true for all employment situations. There’s more to it than what’s being memorialized in writing.

Brad: Yeah I mean, typically when it comes to an employment contract or a physician employment contract or otherwise the expectations as to how employee would become busy is not typically written inside the agreement. Yes, both Dr. Boomer and Dr. Millennial had an unspoken expectation as to how Dr. Millennial would become busy, but it’s not something you would put it into a contract. [00:18:00]

Michael: Unspoken expectations. This could be the death of any relationship. And this is precisely what happened here, Dr. Boomer and Dr. Millennial liked each other, they respected each other’s quality of work and worked well together.

Brad: Yeah. And for an employed physician, the single biggest indicator of success is the business of the employed physician. This is one of those several areas that are not in the contract, but must be discussed.

Michael: Yeah. I mean, ultimately if the doctor’s not busy and they like this case, have a huge guaranteed salary, it’s a ticking time bomb. It has a shelf life of how long that’s going to work. And there’s some other areas that are not typically in the contract, but can cause major problems if they’re not dealt with as outside the contract type conversations, such as, what kind of [00:19:00] support is going to be offered particularly with surgeons. They have expectations of what their sports going to be, so they can become busy. They have expectations about the types of cases that are going to get to work on the call coverage.

They’re finally out of training and they may have expectations that they’re not going to be covering call every night like they have for many years, yet the senior surgeon may be thinking I’m finally going to unload my call coverage to the young doctor. And it’s not talked about. And then finally, what’s the path to partnership? A lot of times that’s not in the contract and these can all be major relationship roadblocks.

Brad: Totally agree. And that’s probably the area where it’s the really thinking outside of the contract. Before we get into the zoom out, I think for our audience, who’s been [00:20:00] listening, Michael, how did it end at least in this story?

Michael: Unfortunately, this is one of those stories where everyone lost. Dr. Millennial still to this day has not recovered from the start to her career and is basically just a struggle for years to gain traction with her practice. Dr. Boomer really became wary about hiring another doctor and it’s blocked him. I think a lot of times the emotions of what he went through has gotten in the way of him being able to use this strategy again and bring some other good opportunities into his practice. I guess that would be fine if he made a conscious decision to kind of go a different route, but instead he’s been saying I want to do it again. I want to go find this other doctor. And so he’s kind of carrying this weight behind him of this bad past experience. And [00:21:00] so he just keeps on having near misses on his attempts to bring someone into his practice.

Brad:  Sounds like he has got a little bit of a commitment issue there, Michael. Again, let’s hit the pause button and stick with our theme this year and let’s zoom out. As we come out of this pandemic, what do you see happening with employment agreements in our post pandemic world and after that, I have some thoughts too.

Michael: You and I both had the same reaction during COVID when all the particularly the young physicians were going into their first jobs by doing zoom interviews and how that was going to work. And I think one of the things we’ve learned is that everyone from a human perspective has adapted to zoom because it’s so efficient when we see so many uses of it. But the [00:22:00] risk is as they continue in this post pandemic world. And I think they will, is that the risk for stories like this will only go up. You lose that human connection and the power of conversations to develop like it does when you’re face-to-face. And so it just becomes more important to be self-aware of your expectations and to be able to communicate them.

Brad: Yeah. And during the interview process, I completely agreed the parties should consider all elements of a relationship. And this goes back to when we asked those two questions on that resume that jumped out to us because we were curious as to a culturally, how will this person fit? And these are the things that really are outside of a given contract. It’s not ever going to be inside a contract, which is what we said earlier. How do you get busy or how do you market yourself? And this is if we’re talking a plastic surgery practice, but you know, sometimes you’re talking about what type of commercial payers are you having and are they assigned to the [00:23:00] doctors based on who’s the first minute in the door, the last man out the door. I mean, these are all very important elements that aren’t always in. And then of course, how does that physician interact with your team? You talked about staffing, but what if the staff only want to work with a senior doctor? These are all pieces that you really want to figure out. Probably like anything else that is really important high school musical agrees, all important questions to ask when you’re setting expectations. And especially as the baby boomers start retiring and the millennials are coming in to take over those practices, those generational gaps, those discussions should be happening.

Michael: Yeah, for sure. I can’t help, but think that if we had done our zoom interviews for our stories how we started today, that there might’ve been some soft bad music that she could have played in the background when she started telling her story.

Brad: Probably so, Michael. Join us next [00:24:00] Wednesday when we discuss with our special guests, How will medical boards answer the telemedicine call?

Outro: Thanks again for joining us today. And remember, if you liked this episode, please subscribe. Make sure to give us a five- star rating and share with your friends. You can also sign up for the ByrdAdatto newsletter by going to our website at byrdadatto.com. ByrdAdatto is providing this podcast as a public service. This podcast is for educational purposes only. This podcast does not constitute legal advice, nor does it establish an attorney- client relationship. Reference to any specific product or entity does not constitute an endorsement or recommendation by ByrdAdatto. The views expressed by guests are their own and their appearance on the program does not imply an endorsement of them or any entity they represent. Please consult with an attorney on your legal issues. Please consult with an attorney on your legal issues.

ByrdAdatto Founding Partner Bradford E. Adatto

Bradford E. Adatto

ByrdAdatto founding partner Michael Byrd

Michael S. Byrd