Ask Our Lawyer

Enforceability of Covenants Not to Compete

By Daniel J. Schulte, JD, MSMS Legal Counsel

Q : Several questions have been received lately regarding the enforceability of a covenant not to compete. These questions arise in the context of an employment relationship and the purchase/sale of a medical practice. Some ask whether they are enforceable at all in Michigan. Others what a time period and geographic scope that they know will be enforceable. Yet others are unwilling to agree to what is being asked of them in an employment agreement or a purchase agreement and are seeking information to use in negotiations with an employer or a buyer/seller.

The short answer is that a covenant not to compete IS enforceable in Michigan if it is reasonable. However, to fully address this issue three points must be considered.

Is the covenant not to compete considered reasonable? No one can tell you in advance what a court in the future will consider “reasonable”. Instead, only some general legal advice based on experience can be given. As to the time period the covenant not to compete applies, 1 to 5 years is what I have seen most often. The specific length will depend in large part on whether the covenant not to compete is contained in an employment agreement v. a purchase agreement or other commercial agreement (read below for an explanation). The reasonableness of the geographic scope usually depends on the distance patients travel to obtain medical care at an office. The point of a covenant not to compete is to protect a legitimate business inter est. If, for example, the farthest a material number of patients of a medical practice travel to receive care at that practice is 10 miles, the practice likely has no legitimate business interest that will be protected by a covenant not to compete extending 11 or more miles away.

Is the covenant not to compete contained in an employment agreement, a purchase agreement or other commercial agreement?

In 2016, the Michigan Supreme Court clarified that only a covenant not to compete contained in an employment agreement must be reasonable. By contrast, a covenant not to compete contained in a purchase agreement or other nonemployment commercial agreement may be enforceable even if it is not reasonable as to a party to the agreement. This is a significant difference. When challenging the enforceability of a covenant not to compete in a nonemployment commercial agreement it is necessary to prove more than the unreasonableness of the time period, geographic scope and restricted activity. In addition, it must be proven that an adverse anticompetitive effect in the relevant market will occur as a result of enforcement of the covenant not to com pete. This added burden of proof is why covenants not to compete in nonemployment commercial contracts are more likely to be enforced that those contained in employment agreements. This also explains why the time periods, geographic scope and breath of activity restricted are usually greater in nonemployment commercial agreements.

If a covenant not to compete is enforceable, will it be enforced?

Even if a covenant not to compete is enforceable, there is no guarantee that it will be enforced. Enforcement of a covenant not to compete is usually sought in the form of an injunction preventing the part to a covenant not to compete from engaging in an activity. Injunctions are equitable remedies. This means courts have wide discretion in deciding whether to grant them (i.e. a covenant not to compete that is enforceable may not be enforced). For example, a court may take into account the bad acts of the nonbreaching party to a covenant not to compete (even one contained in a purchase agreement) in deciding not to grant an injunction.

As you can see, few clear-cut answers can be given to your questions. Instead, the en forceability of a covenant not to compete will depend on many factors.

DANIEL J. SCHULTE, JD, MSMS LEGAL COUNSEL IS A MEMBER AND MANAGING PARTNER OF KERR RUSSELL

“In 2016, the Michigan Supreme Court clarified that only a covenant not to compete contained in an employment agreement must be reasonable. By contrast, a covenant not to compete contained in a purchase agreement or other nonemployment commercial agreement may be enforceable even if it is not reasonable as to a party to the agreement. This is a significant difference.”

Good Leadership Can’t be Outsourced

By Jodi Schafer, SPHR, SHRM-SCP, Human Resources Management Services, LLC

Q : I’m struggling with the current dynamics in my practice. Right now I have a highly effective group of individuals. The work they do individually is bold and outstanding; however they do not work together well. For example, I have a nurse who will not cover for any other clinical staff. To her credit she did not ask anyone to cover for her, so she feels she shouldn’t have to cover for anyone else. This causes a great deal of resentment. She is viewed as uncooperative and a bit of a snob. She is not alone; a number of my staff act like divas. My Practice Manager is at a loss for what to do. I’d prefer not to get rid of any of them because of their individual talents, but how do I get them to work as a team?

You are fortunate to have high performers on staff, but as you’ve learned, high performers can be more difficult to lead. Expecting a Practice Manager to take sole responsibility for leading your employees is not realistic. They play a supporting role, but ultimately it is up to you to be the leader.

Leadership is mix of inspiration, communication, action, and representation. Let me break down each of these components so you can see where you might be losing ground.

“As the old saying goes ‘Actions speak louder than words’. If you say you are going to do something then you have to do it.”

As a leader you need to inspire. You set the example for behavior you expect from your staff. You should treat all of your employees respectfully, professionally and with kindness. If you want employees to cover for each other you should cover more for them. Even as the leader you are part of the team. They will look to you for direction. Your behavior should model the expectations you have for all the staff members therefore you must act, speak, and be the person you want your employ ees to be.

As a leader you want to communicate. You must be accessible and available for your staff. This allows information to flow freely between you and them. Your employees have a stake in the practice. They may not have ownership interests, but their financial well-being is tied to the financial well-being of business. Therefore they will want to know your vision and plans for the future. Keep them informed as to what you're doing with the practice. Whether it is purchasing software, implementing new procedures, or hiring new staff members, let them know. If you don’t provide them with the information they tend to fill in the blanks for themselves. Often the end result is more fiction than fact which can create tunnel vision and acts of self-preservation.

You must be honest. Often leaders have to say things that are difficult to say. In order to have their respect you must be honest with your staff. Modeling behavior is one of the easiest ways to learn leadership skills (as long as you’re modeling the right behavior).

As a leader you need to act. As the old saying goes ‘Actions speak louder than words’. If you say you are going to do something then you have to do it. Follow through with your prom ises in order to get the respect you need to influence others. Provide staff with opportunities for development, both professionally and personally. Dedicate yourself to their growth. Don’t be cheap. Provide and pay for their training because their development benefits the practice as much as it benefits the individual.

As a leader you represent your staff to the public. Their behavior is a reflection on you and the practice as a whole. So if they can’t work together as a team, then it’s as if YOU can’t work as part of a team. If a patient feels tension between two employees you may lose the patient. Going to the doctor is stressful enough without having to deal with the practice’s internal conflicts.

In order to change the behavior of your staff you must first identify the weakness es in your own leadership skills and work to enhance those. It begins and ends with you. You must create an environment where all people feel safe and where cooperation is rewarded. Only then can you truly come together as a team to focus on the needs of the patient.

January is Cervical Health Awareness Month: Protect Your Patients with HPV Vaccine

By Alyssa Strouse, MPH, Adult and Adolescent Immunization Coordinator, MDHHS Division of Immunization

Every year, approximately 34,800 men and women are diagnosed with a cancer caused by the human papillomavirus, commonly known as HPV. 1

Cervical cancer is just one of six types of cancer caused by HPV, but it is the most common HPV-associated cancer in women. 4 Even with effective screening methods, such

as the pap test and the HPV test, HPV causes approximately

10,900 cases of cervical cancer in the United States every year.

Further, nearly 4,000 women die of cervical cancer every year. 1

In addition to cervical cancer, there are an estimated 196,000 cases of cervical precancers each year in the United States.

Treatment for both cervical cancers and precancers can cause additional health issues and can limit a woman’s ability to have children. 4

The HPV vaccine is the best and most effective way to protect patients from all HPV-attributable cancers, including cervical cancer. The HPV vaccine is recommended at ages 11-12, but the vaccine can be given as early as age 9. Children who start the vaccine series at the recommended age, prior to their 15th birthday, will only need two doses separated by 6-12 months. Children who start the HPV vaccine series on or after their 15th birthday will need three doses over the course of 6 months. Immunocompromised children will need three doses of HPV vaccine regardless of the age at which they start the HPV vaccine series. Further, HPV vaccination is recommended for males and females through age 26 years, if not previously vaccinated. Although vaccination is not recommended for everyone older than age 26 years, some adults age 27 through 45 years may be vaccinated based on a discussion with their healthcare provider. 2

HPV vaccination is safe, effective and provides long-lasting protection against cancers caused by HPV. Since the vaccine was introduced in 2006, over 120 million doses of HPV vaccine have been distributed and ongoing safety monitoring and research by CDC and the U.S. Food and Drug Administration (FDA) continue to illustrate that the vaccine is safe and effective. Further, among teen girls, infections with HPV types that cause most HPV cancers and genital warts have dropped by 71% since the vaccine has been in use. Finally, studies suggest that protection provided by the HPV vaccine is long-lasting and there has been no evidence of the protection decreasing over time. 2

Although research has illustrated that HPV vaccine is safe, effective, offers long-lasting protection and prevents cancer, the vaccine is still extremely underutilized. According to recent National Immunization Survey-Teen (NIS-Teen) data, nationally, only 48.7% of males and 53.7% of females age 13-17 years have completed their HPV vaccine series. 3 In Michigan, according to the Michigan Care Improvement Registry (MCIR) and as of September 30, 2019, only 42.7% of males and 45.3% of females age 13-17 years have completed their HPV vaccine series. 5 This data illustrates that approximately half of our adolescents are left unprotected and at risk for developing an HPV infection and/or HPV-attributable cancer at one point in their lifetime. According to CDC, increasing coverage of HPV vaccination at the routine age of 11- 12 years and catch-up vaccination through age 26 years will contribute to further reduction in cervical precancers. 4

It is imperative that all healthcare professionals, including physicians, physician assistants, nurse practitioners, nurses, medical assistants, pharmacists, dentists, dental hygienists and even additional staff in provider offices must advocate for and strongly recommend the HPV vaccine. There are several practical and proven strategies to increase HPV vaccination rates. One strategy is to bundle your recommendation and recommend the HPV vaccine in the same way and on the same day as you do the other adolescent vaccines. Another strategy is to ensure a consistent message and train all office staff on how to success fully communicate with parents and patients about HPV vaccination. Finally, it is encouraged to provide personal examples on how and why you support the HPV vaccine for your family and friends. The healthcare community must come together to increase HPV vaccination rates and protect all patients from HPV-attributable cancers and diseases.

REFERENCES

1 CDC (2019), HPV and Cancer. Retrieved from https:// www.cdc.gov/cancer/hpv/statistics/cases.htm

2 CDC (2019), Human Papillomavirus (HPV). Retrieved from https://www.cdc.gov/hpv/index.html

3 CDC (2019). TeenVaxView. 2018 Adolescent Human Papillomavirus (HPV) Vaccination Coverage Dashboard. Retrieved from https://www.cdc.gov/ vaccines/imz-managers/coverage/teenvaxview/da ta-reports/hpv/dashboard/2018.html

4 McClung NM, Gargano JW, Park IU, et al. Estimated Number of Cases of High-Grade Cervical Lesions Diagnosed Among Women — United States, 2008 and 2016. MMWR Morb Mortal Wkly Rep 2019;68:337–343. DOI: http://dx.doi.org/10.15585/ mmwr.mm6815a1external icon.

5 MDHHS (2019). Michigan’s Statewide Quarterly Immunization Report Card. Retrieved from https:// www.michigan.gov/documents/mdhhs/State_Lev el_ReportCard_621826_7.pdf

Legal and Regulatory Resources at Your Fingertips

By Stacey Hettiger, Director Medical and Regulatory Policy, Michigan State Medical Society

Members of the Michigan State Medical Society (MSMS) have access to a variety of supports and services. MSMS Departments cover a range of areas of interest to physicians, practice managers, and other medical staff including education opportunities, legislative and regulatory advocacy, legal support, payer advocacy and connections, coding advice, representation on federal and statewide panels, and communication on health care hot topics.

The Health Care Delivery Department at MSMS deals with payer, regulatory, and system issues that impact the practice of medicine. Health Care Delivery team members are available to help members address individual questions and concerns, as well as to monitor and report on global issues of interest.

As health care law becomes increasingly complex, MSMS’ legal resources are relied upon to help members navigate legal and regulatory constraints and obligations re lated to care delivery. A list of those legal resources begins on page 13.

“As health care law becomes increasingly complex, MSMS’ legal resources are relied upon to help members navigate legal and regulatory constraints and obligations related to care delivery. ” “As health care law becomes increasingly complex, MSMS’ legal resources are relied upon to help members navigate legal and regulatory constraints and obligations related to care delivery. ”

Legal Services General legal questions on a variety of issues of concern to physicians statewide (e.g., medical record retention, medical records charges, privacy issues, Stark, etc.) are answered for FREE as a benefit of MSMS membership. Legal Services General legal questions on a variety of issues of concern to physicians statewide (e.g., medical record retention, medical records charges, privacy issues, Stark, etc.) are answered for FREE as a benefit of MSMS membership.

Legal Checklists MSMS checklists provide physicians with a starting point to evaluate key areas that should be addressed in contracts, employee documents, and compliance plans: Managed Care Contracting Employed Physician Contracting Compliance Program Employee Manual HIT/EHR Vendor Contracting Legal Checklists MSMS checklists provide physicians with a starting point to evaluate key areas that should be addressed in contracts, employee documents, and compliance plans: Managed Care Contracting Employed Physician Contracting Compliance Program Employee Manual HIT/EHR Vendor Contracting

Special Legal Services MSMS members in need of a thorough legal review and consultation pertaining to overpayment audits, bylaws, and contracts are able to receive this benefit for a fixed fee for the following services:

Employment Contract Review Service Physician Audit Consultation Service Medical Staff Bylaws Review Service HIT/EHR Vendor Contracting Review Service Special Legal Services MSMS members in need of a thorough legal review and consultation pertaining to overpayment audits, bylaws, and contracts are able to receive this benefit for a fixed fee for the following services:

Employment Contract Review Service Physician Audit Consultation Service Medical Staff Bylaws Review Service HIT/EHR Vendor Contracting Review Service

Health Law Library The MSMS Health Law Library, assembled by our Legal Counsel, is available digitally so members can access it 24/7. Information available through the Library is designed to assist physicians in learning about and understanding the many Michigan statutes and regulations which affect the practice of medicine in our state and includes a variety of topics from "AIDS/ HIV" to "Scope of Practice," as well as antitrust regulations, Michigan’s new physician licensure laws, and the latest reporting requirements. 13 michigan MEDICINE® | JULY / AUGUST 2019 Health Law Library The MSMS Health Law Library, assembled by our Legal Counsel, is available digitally so members can access it 24/7. Information available through the Library is designed to assist physicians in learning about and understanding the many Michigan statutes and regulations which affect the practice of medicine in our state and includes a variety of topics from "AIDS/ HIV" to "Scope of Practice," as well as antitrust regulations, Michigan’s new physician licensure laws, and the latest reporting requirements.

Legal Alerts and Guides MSMS legal alerts and guides provide a succinct legal analysis of both timely and long-standing issues that impact the practice of medicine. These resources provide members with an informative, on-demand tool to answer questions regarding regulations, processes, etc. to ensure compliance. Many of the alerts are based on trending inquiries directly from physicians and their staff. Below are excerpts from our most recent and popular documents. MEDICAL RECORDS GUIDE “Neither the HIPAA Privacy Rule nor the MMRAA permits you to withhold medical records until a past due balance is paid. However, you may insist that the patient prepay the appropriate copying fee and the fee charged for preparation of a summary of the medical record (see CHAPTER 9).” “For Michigan health professional licens ing purposes, MCL §333.16213 requires that you keep your medical records for a minimum of seven years from the date of service to which the record pertains unless a longer period of time is required by another federal or Michigan law or regulation or by generally accepted standards of medical practice. MCL §333.16644, which applies only to dental records and requires them to be maintained for ten years from the date of service, is an example of a statute requiring a longer retention period.” “The statute of limitations on potential medical malpractice claims should be considered before destroying any medical record. You do not want to be in a position of having to defend a medical malpractice claim without the medical records that are the subject of the claim.” Legal Alerts and Guides MSMS legal alerts and guides provide a succinct legal analysis of both timely and long-standing issues that impact the practice of medicine. These resources provide members with an informative, on-demand tool to answer questions regarding regulations, processes, etc. to ensure compliance. Many of the alerts are based on trending inquiries directly from physicians and their staff. Below are excerpts from our most recent and popular documents. MEDICAL RECORDS GUIDE “Neither the HIPAA Privacy Rule nor the MMRAA permits you to withhold medical records until a past due balance is paid. However, you may insist that the patient prepay the appropriate copying fee and the fee charged for preparation of a summary of the medical record (see CHAPTER 9).” “For Michigan health professional licensing purposes, MCL §333.16213 requires that you keep your medical records for a minimum of seven years from the date of service to which the record pertains unless a longer period of time is required by another federal or Michigan law or regulation or by generally accepted standards of medical practice. MCL §333.16644, which applies only to dental records and requires them to be maintained for ten years from the date of service, is an example of a statute requiring a longer retention period.” “The statute of limitations on potential medical malpractice claims should be considered before destroying any medical record. You do not want to be in a position of having to defend a medical malpractice claim without the medical records that are the subject of the claim.”

(CONTINUED ON PAGE 14) (CONTINUED ON PAGE 14) ASK OUR LAWYER

CONTRACT REVIEWS

HEALTH LAW LIBRARY

ALERTS, GUIDES & CHECKLISTS

To access any or all of these member resources, visit msms.org/Resources or contact the MSMS Health Care Delivery Department at 517/336-5723 or via email at cwheeler@msms.org. To access any or all of these member resources, visit msms.org/Resources or contact the MSMS Health Care Delivery Department at 517/336-5723 or via email at cwheeler@msms.org.

MEDICAL RECORDS POLICY MODEL AND LICENSURE REQUIREMENT FOR MICHIGAN PHYSICIANS “The Michigan Public Health Code (the "Code"), at MCL § 333.16177(4), requires a physician or other applicant for an initial Michigan health professional license, or a licensee applying to renew a license, to provide the Michigan Department of Licensing and Regulatory Affairs (the "Department"), on the application or the license renewal form, with an affidavit stating that he or she has a written policy for protecting, maintaining, and providing access to his or her medical records in accordance with Section 16213 of the Code.”

“A person who fails to comply with Section 16213 is subject to an administrative fine of not more than $10,000.00 if the failure was the result of gross negligence or willful and wanton misconduct. MCL § 333.16213(5).”

“Sample Medical Records Retention Policy. Instructions: Physicians and their medical practices may use this model policy for guidance when drafting a Medical Records Retention and Disposition Policy for Mich igan health professional licensing compliance per the requirements of the Michigan Public Health Code § 333.16177 and § 333.16213. Physicians are responsible to modify this model policy to suit the particular needs of their medical practices…”

MANDATORY FLU SHOT FOR EMPLOYEES: POLICY IMPLEMENTATION AND BEST PRACTICES “As a condition of employment, an employer may require that all employees receive a flu shot. However, an employer’s compulsory flu shot policy must provide for exemptions in order to comply with various laws regulating the employer/ employee relationship.”

“It is advisable for an employer that wishes to require flu shots to adopt a written flu shot policy so that all employees have rea sonable advance notice that receiving an annual influenza vaccination is a condition of employment.” “Educating employees about the benefits and

importance of the flu shot may help maxi mize employee participation. Just like frequent hand washing and wearing gloves, the flu shot is an important protective measure for employees and patients. The Centers for

Disease Control and Prevention (CDC),

the Advisory Committee on Immunization

Practices (ACIP), and the Healthcare Infec

tion Control Practices Advisory Committee

(HICPAC) recommend that all U.S. health

care workers get vaccinated annually against

influenza 1 .”

LEGAL ISSUES FOR PHYSICIANS TREATING HEARING IMPAIRED OR LIMITED ENGLISH PROFICIENCY PATIENTS “Several methods are commonly used by physicians to ensure effective communication with hearing impaired patients…The method(s) physicians choose to adopt—or may be required by law to provide at the physician’s expense—will vary depending on the

MSMS FOUNDATION’S 9TH ANNUAL

THURSDAY, MAY 14 – FRIDAY, MAY 15, 2020 DOUBLETREE HILTON, DEARBORN

#SSM2020

relevant facts and circumstances. The availability and cost of qualified commercial interpreting services, the need for an im partial interpreter, the number of hearing impaired patients in the practice, the pa tient’s individual wishes, the government’s enforcement practices, and the complexity of the encounter are some of the factors that may influence this decision.”

“Discrimination in the delivery of physi cian services based on a patient’s disability has been prohibited by federal and Michigan law for quite some time. A hearing impairment is considered a disability.”

“…a December 5, 2001 HHS policy guidance document (the “HHS Guidance Document”) applicable to all health care providers receiving federal financial assistance, including physicians, does require that language assistance services be provided to LEP Patients in certain circumstances.”

SERVICE ANIMALS AT PHYSICIAN'S OFFICE “The Americans with Disabilities Act ("ADA") requires places of public accommodation, including physicians’ medical practice offices and health-care facilities (individually referred to in this Legal Alert as a “facility” and collectively as “facilities”), to allow service animals to assist persons with disabilities.”

“Service animals may accompany a patient, employee, or a visitor of a facility. These service animals must be allowed to accompany persons with disabilities in all areas where the public is allowed.”

“Emotional support animals or comfort ani mals are often prescribed by a doctor as part of a therapy or treatment plan. This may cause some confusion when determining whether to admit the animal into place of public accom modation. However, service animals and emotional support animals are treated differently under the ADA and Michigan law.”

To access any or all of these member resources, visit msms.org/Resources or contact the MSMS Health Care Delivery Department at 517/336-5723 or via email at cwheeler@msms.org.

Driven by results.

As counsel to the MSMS community for over 70 years, we know how to help physicians.

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PHYSICIAN LEADERSHIP What it looks like and why it matters.

Leadership. It’s a word used so often, in so many run-of-the-mill ways, that we tend to minimize its significance. In 2019, there is hardly a single résumé or CV that fails to include multiple references to leadership, or a professional development opportunity that neglects to cite it as a learning outcome.

Leadership is more than a throwaway word— it is a lofty ideal worth pursuing and practicing over the course of a lifetime.

Michigan is fortunate to boast many phy sician leaders; men and women who assume important statewide advocacy roles are able to advance policies that support quality patient care, while simultaneously nourishing their own professional growth as leaders, collaborators, and mentors.

But what does physician leadership look like in daily life, and why does it matter to physicians, their colleagues, and their patients?

Starting from Behind

Surprisingly, research shows most physicians begin at a distinct disadvantage where even their basic management skills are concerned. A pair of articles in the Harvard Business Review recently lamented the lack of management training physicians typically receive, and cited important benefits that arise when such skills are effectively developed—higher quality care, improved clinical outcomes, greater patient satisfaction, and better financial results.,

“In medicine, we’re trained in patient care and all the many theoretical and technical aspects that accompany it,” says Roy Soto, MD, an anesthesiologist who serves as president of the Michigan Society of An esthesiologists’ board of directors. “It’s our primary job, so it makes sense it should be our central focus. But it’s tough to overstate the importance of educating ourselves on what we’ve not been taught, so we can handle in-depth financial, management and strategic issues, as well.”

Most practical experiences tend to bear this out. In a world where physicians are trying to figure out tough issues like prior authorization, surprise billing, and an unprecedented amount of paperwork, the need for strong management skills is rising in importance.

It’s also a world where real leadership is needed—leadership that advocates for the needs of patients, informs state and federal

“It is hard for one person to do everything. Collaboration gives physician leaders an ability to keep learning and growing, to try doing things just a little bit better. Sharing that responsibility is so important.”

ANAND THAKUR, MD policy, seeks the opportunity to grow and innovate, and supports the advancement of important research.

But in a profession where even basic man agement training is often lacking, finding talented leaders ready to engage and lead on this broader level can be a challenge.

What Physician Leadership Looks Like in 2020

The default setting for generations of would-be physician leaders has been based on the relatively dysfunctional model of giving orders and expecting them to be carried out. It’s natural and grounded in decades of training suggest ing that, when an answer is necessary, it is the physician who must find (diagnose) it and then tell everyone on the team what to do, or how to treat it.

A growing body of research and practice suggests, however, that physician leadership is most effective when it is collaborative in nature. Anand Thakur, MD, an anesthesiologist and pain management specialist from southeast Michigan who chairs the board of the Michigan Society of Interventional Pain Physicians, suggests collaboration can be an asset.

“It is hard for one person to do everything,” Doctor Thakur says. “Collaboration gives physician leaders an ability to keep learning and growing, to try doing things just a little bit better. Sharing that responsibility is so important.”

Doctor Soto takes the concept a step further. “As a leader, you need to recognize the Peter Principle at work in yourself— the point at which you have risen to your level of incompetence,” he chuckles.

CONTINUED ON PAGE 18

“Effective leaders need to be highly self-aware, so they can stay effective while learning and growing and helping others reach their own potential.”

ROY SOTO, MD

“Effective leaders need to be highly selfaware, so they can stay effective while learning and growing and helping others reach their own potential.”

Inspiration. Collaboration. Innovation and strategy. Self-awareness and the ability to listen well. For Michigan’s physician leaders, these are recurring themes they use to define leadership in themselves and the colleagues they most admire.

They’re principles that raise the bar well above mere technical knowledge and management capacity, and demand much more of physicians who wish to lead. While some leaders are born for the role, others must learn the skills necessary to inspire others and generate extraordinary results. The good news? It can be done— and the pathways already exist. their work, it’s essential that physicians are directly involved in healthcare leader ship to navigate a better way forward for the profession and patients.

Here in Michigan, many physicians are honing robust leadership skills through a dynamic array of statewide medical soci eties—societies that are thirsty for knowledgeable, engaged members willing to share their expertise and grow as leaders.

Engaging at a Statewide Level

In Chicago at the 2017 annual meeting of the American Medical Association, delegates adopted a policy encouraging physicians to serve on the boards of healthcare organizations. In doing so, the association cited numerous studies showing “significant evidence that the participation of physicians in the governance of many health care organizations is associated with higher business performance, clinical quality and social outcomes.”

A blog post shared by Forbes and The Physicians Foundation shines additional light on the need for statewide physician leadership.

With today’s challenges in the house of medicine, the shifting landscape of healthcare and the unpredictable fate of [state and] federal legislation impacting The problem? Too few physicians have the bandwidth to add statewide society work to their to-do lists.

“I think one of our biggest challenges is maintaining an engaged and involved membership,” says Perry Pernicano, MD, FACR and president of the Michigan Ra diological Society. “In our busy lives there are many other demands, commitments, and distractions.”

Doctor Thakur agrees.

“Engagement is one of our core goals right now,” he says. “We’re being very deliberate as we set strategies and look for ways to get more of our members involved and speak ing out on behalf of their patients.”

Of course, it is impossible to discuss phy sician engagement in statewide leadership societies without examining trends related to physician burnout.

A 2019 Medscape report shows that 40 per cent of male physicians and 50 percent of female physicians say they are experiencing symptoms of burnout. The biggest contributors to these phenomena are related to issues that have little to do with actual patient care, and are more closely related to external forces such as bureaucracy and paperwork.

Biggest Contributors to Burnout

Too many bureaucratic tasks

Spending too many hours at work

Increasing computerization of practice (EHRs) Lack of respect from administrators/employees, colleagues or sta Insucient compensation/reimburement Lack of control/autonomy

Government regulations

Feeling like just a cog in a wheel

Emphasis on prots over patients

Lack of respect from patients

This poses something of a chicken-andegg problem for Michigan physicians. If they could free themselves from this heavy paperwork burden, they would have more time available for participation in statewide societies—which could, in turn, advocate for policy changes that can help alleviate the need for such extensive bureaucracy and paperwork and address these critical burnout triggers.

Perhaps the deciding factor in favor of statewide engagement over paperwork is what Doctor Thakur calls “the big win” of his role in the Michigan Society of Interventional Pain Physicians. “I get to talk with other physicians who are facing the same challenges I am, and we can work collaboratively together to find good solutions,” Doctor Thakur says. “Especially now, when our state and nation are facing this huge opioid epidemic, it’s important for us to come together around ideas that work. “As colleagues working in the same field, we know our issues better than anyone and we’re able to speak the same language, sup port each other, and share effective strategies with policymakers and the public.”

Darius Karimipour, MD, who chairs the Michigan Dermatological Society, says it’s particularly important to engage with younger physicians. “Medical societies need to recognize the dif fering needs and desires of younger members to retain them and garner their participation in organized medicine,” he says.

New technologies and communications tools play an important part in meeting those needs.

“One of the greatest challenges facing leaders today is the need to deal with the rapidity of change and stay in touch daily,” says Warren Lanphear, MD, FACEP, who chairs the board of the Michigan College of Emergency Physicians. “This high-tech world demands familiarity with social and other media, and you cannot ignore the conversations.”

Indeed, peer-to-peer social media tools are helping leverage physician learning and engagement. Sites like Doximity, SERMO and Daily Rounds offer connectivity to younger generations of physicians—but are they a substitute for local, personal engagement with colleagues?

It’s widely known that face-to-face, personal interactions are more satisfying and nourishing than those that occur online, so it similarly stands to reason that this type of engagement is going to more powerfully combat the symptoms of burnout and foster greater professional enrichment.

In other words, physicians win—both personally and professionally—when they begin engaging with statewide organizations in their areas of practice.

From Membership to Leadership

At the Michigan Dermatological Society, the most important decisions Doctor Karimipour makes involve leadership transitions.

“I think identifying the next generation of leaders is very important,” he says. “Identifying people interested in society committee membership who are ‘doers’—that’s what strengthens committees and hence the society’s mission.”

It’s what Doctor Pernicano calls “getting the right people in the right places.”

CONTINUED ON PAGE 20

“An important characteristic for a leader is a willingness to serve. I view my position as one of service to the society and its membership—and to provide good service, one must be a good listener. ”

DARIUS KARIMIPOUR, MD

Preference for Listening over Talking Increases with Position in the Organization

Top Management

Senior Leaders

Middle Managers

Supervisors 63%

62%

57%

56%

0 10% 20% 30% 40% 50% 60% 70%

“An important characteristic for a leader is a willingness to serve,” Doctor Pernicano says. “I view my position as one of service to the society and its membership—and to provide good service, one must be a good listener. We’re looking for people to be aware of and responsive to the needs and wants of our entire membership.”

In 2017, a study by Zenger and Folkman found that, indeed, listening is one of the most important characteristics of effec tive leadership. This research showed that “leaders with a preference for listening are rated as significantly more effective than those who spend the majority of their time holding forth.” In fact, this study found a direct correlation between a strong prefer ence for listening and an individual’s position within an organization (see chart on page 19).

One area where leadership through lis tening can take hold quickly is the development of an effective mentoring relationship. Statewide organizations offer tremendous opportunities for connecting with experienced colleagues and peers who can offer leadership models and advice.

“It’s critical that we all find excellent mentors,” says Doctor Soto. “It’s not always easy to do, but being involved in a med ical association or society makes it far less challenging. I was able to locate four or five people I could learn from, and they’ve made a tremendous difference in my own career and leadership growth.”

Research supports Doctor Soto’s enthusiasm for peer mentoring among physicians. Having one or more mentors is shown to foster more satisfying and successful medical careers, and statewide societies offer a rich soil for fertile peer relationships.

Doctor Pernicano says, “Do not think you are alone or that you have to do everything yourself. Be willing to ask for help and advice.”

“Our mission, core values, and vision—these are all vital and coexist together. Not to get too philosophical, but like the past, present and future, they all are part of the same continuum.

PERRY PERNICANO, MD, FACR

The Challenges of Leadership

So, you’ve joined your statewide society and are starting to learn, grow, and develop in new ways. In fact, you’re now assuming a broader leadership role. What can you expect?

Today’s leaders say they work hard to keep their minds focused on the big picture.

“Our mission, core values, and vision— these are all vital and coexist together,” says Doctor Pernicano. “Not to get too philo sophical, but like the past, present and future, they all are part of the same continuum. I work to organize and motivate others [around these items and our day to day activities, which lead us to them].” This agility is what helps keep today’s lead ers on the leading edge of policy and practice. In fact, Doctor Karimipour says the need for constant adaptation and growth are essential drivers for his organization. “What worked in the past may not work as well in the future due to changing needs and demographics, but education is the strength of our society. We are continually looking at ways of enhancing our educational experiences.”

Even as this important work is ongoing, an experienced leader also is working to un derstand the difference between catalysts that should serve as drivers of change and mere noise.

“The most important thing a good leader can do is listen to all sides of an issue be fore making a decision,” says Doctor Lanphear. “There are vocal, persuasive people out there that can lead you to forget there may be other viewpoints that have as much or more validity. It’s critical to hold off on making rash decisions.”

Doctor Thakur puts it very simply. “An organization can’t do 17 things at once,” he says. “Effective leaders have to identify one, maybe two goals, and dedicate themselves to moving the needles on them before going on to the next thing. It’s all about knowing where you can have an im pact, and then going about the hard work of making it.”

While it’s important for a leader to keep an eye on the horizon, Doctor Soto says he also spends a lot of time digging for intelligence behind the scenes, so he can keep his members a step ahead of the curve.

“I’ve always got my nose to the ground,” says Doctor Soto. “I’m looking at what’s going on in Lansing, with the bigger picture, and trying to make sure we’re working together in ways that allow us to be nimble and responsive.”