This month, Doximity issued its Fifth Annual 2021 Physician Compensation Report. With the continued strain of the pandemic spanning 2021, the self-reported physician data reflected widespread burnout and early retirement, especially by female physicians. With respect to physician compensation, Doximity findings demonstrated:

  • While average doctor pay increased 3.8 percent between 2020 and 2021, there was a decline of real income compared to 2020 given the CPI 6.2% rate of inflation in 2021.
  • The top five metro areas with the highest physician pay were Charlotte, NC; St. Louis, MO; Buffalo, NY; Jacksonville, Florida; and, Orlando, Florida.
  • The top five metro areas with the lowest physician pay were Baltimore, MD; Providence, RI; San Antonio, TX; Washington, D.C.; and Boston, MA.
  • A widening gender pay gap of 28.2% this year, with female physicians making $122,000 less than male physicians in 2021.
  • Based on 2014-2019 data, Doximity estimates that over the course of a career, female physicians will earn over $2 million less than male physicians.

Specialties with the largest pay equity gaps between men and women are oral & maxillofacial surgery; allergy and immunology; ENT; pediatric nephrology; and thoracic surgery. Significantly, there is no one medical specialty where women earned the same or more than men in 2021. All specialties had a pay gap over 10%, except Pediatric Rheumatology (which had a gap of 7.9%). To compound matters, a recent Jama Network Open research letter found that physician residents who were mothers – compared to physician residents who were fathers – were more likely to be responsible for childcare or schooling (24.6% v. .8%), household tasks (31.4% v. 7.2%), to work primary from home (40.9% to 22%), and to reduce their work hours (19.4% to 9.4%). The study reflected the significant concern that these “short-term adjustments can have serious long-term repercussions as they may lead to lower earnings and negatively impact advancement.”

Doximity’s research also revealed that due to the pandemic, over 1% of physicians retired before expected, which is feared to strain an already tight labor market. The report also highlighted studies suggesting about half of doctors are considering an employment change due to the “COVID-related overwork.” The overwork also had a disproportionate impact on women physicians, with 25% of them reporting they are “considering early retirement” due to increased work during the pandemic.

This research reflects the importance of a physician/employer in any setting reflecting on the impact of the pandemic on its healthcare team. Moreover, the research shows continued pay equity deficits between female and male physicians, which may be exacerbated by the pandemic. Internal reflection on current pay practices to identify the factors contributing to it are critical to maintain top talent, improve morale amidst very difficult times and avoid wage and hour litigation.

In December 2020, Congress passed the “No Surprises Act” (NSA) as part of the Consolidated Appropriations Act of 2021. The NSA applies most commonly in situations where a patient receives out-of-network medical services from a provider to whom the patient had no meaningful opportunity to consent, as in the case of emergency room care or a service performed by an ancillary provider in connection with a scheduled surgery, such as an anesthesiologist. The intent of the NSA is to protect patients from later receiving large “surprise bills” from such out-of-network providers. To learn more, read the post on our ERISA Litigation Advisor blog.

On December 15, 2021, the Fifth Circuit Court of Appeals granted, in part, the federal administration’s motion to stay the nationwide preliminary injunction enjoining the Centers for Medicare and Medicaid (“CMS”) from enforcing its COVID-19 vaccine mandate nationwide as to non-plaintiff states. Louisiana et al v. Becerra et al., No. 3:12-cv-03970 (W.D. La. December 15, 2021).

Immediately after this ruling was issued, Plaintiffs in the matter pending before the United States District Court for the Northern District of Texas, Texas et al v. Becerra et al., No. 2:21-cv-229-Z (N.D. Tex. December 15, 2021) sought a ruling on its Motion for Preliminary Injunction. The Court granted the motion enjoining CMS from enforcing its COVID-19 vaccine mandate in Texas.

As a result, because of this Fifth Circuit ruling, the Eastern District of Missouri’s prior ruling, and the Northern District of Texas ruling, CMS cannot presently enforce its vaccine mandate in: Louisiana, Montana, Arizona, Alabama, Georgia, Idaho, Indiana, Mississippi, Oklahoma, South Carolina, Utah, West Virginia, Kentucky and Ohio, Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota, Texas and Wyoming.

As of now, CMS can proceed with enforcing its rule in all remaining 25 states. CMS has not yet stated whether it will proceed with enforcement in those 25 states and/or what new deadlines for compliance may be imposed if they do. Impacted employers should continue to monitor for further developments.

Please contact a Jackson Lewis attorney with questions.

Title VII prohibits discrimination at the workplace based on race, color, sex, and national origin. But, only “employees” can bring claims under Title VII as the law does not protect independent contractors. The Tenth Circuit (covering Oklahoma, Kansas, New Mexico, Colorado, Wyoming, and Utah) was asked to determine whether a locum tenens physician was an employee of a Kansas hospital. The court determined that he was an independent contractor, and not an employee, and affirmed the dismissal of his Title VII claims.

In Benaissa v. Salina Reg’l Health Ctr., Nos. 20-3236 & 21-3015 (10th Cir. Dec. 2, 2021), the hospital contracted with a third-party vendor to provide locum tenens physicians. The vendor assigned Dr. Benaissa to provide orthopedic surgical services to the hospital. Dr. Benaissa, an Arab Muslim male, performed these services for just under a year (the hospital gave thirty days’ written notice to the vendor that it no longer wanted Dr. Benaissa’s services, consistent with the vendor contract). The doctor sued the hospital, alleging race, religion, and national origin discrimination under Title VII.

Applying a multi-factor “hybrid test” to determine if the doctor was an employee of the hospital, the court noted the doctor “was a highly skilled, experienced, board-certified orthopedic surgeon who was licensed in eleven states.” The most critical fact for the court was that he “agree[d] that he had complete autonomy in determining what work needed to be done for his patients” because this “inform[ed] the hybrid test’s primary concern with the employer’s right to control the means and manner of the worker’s performance.” (Citation omitted). The court rejected the doctor’s argument in support of employee status that the hospital converted his privileges from locum tenens privileges “to permanent status,” concluding that “the circumstances of [t]his case [do not] warrant deviating from the principle that having staff privileges at a hospital is not sufficient to confer employee status on a physician.” Because the doctor was an independent contractor, the court affirmed the summary judgment in favor of the hospital.

If you have questions regarding your physician classifications, please contact the Jackson Lewis attorney with whom you regularly work, or any member of our Healthcare industry group.

Yesterday, the U.S. Supreme Court denied a request to enjoin New York State from enforcing its regulation requiring COVID-19 vaccination for healthcare workers despite the fact that the regulation did not allow for religious accommodations. The Court did not issue any written opinion or rationale but was accompanied by a 14-page dissent by Justice Gorsuch.

Meanwhile, also yesterday, the Eighth Circuit Court of Appeals denied the federal government’s motion to stay a preliminary injunction that precludes the Centers for Medicare and Medicaid Services (“CMS”) from enforcing its COVID-19 Vaccine Mandate in the ten states at issue in that lawsuit. The federal government sought to have the preliminary injunction stayed but the Eighth Circuit Court of Appeals rejected that request without explanation. The nationwide injunction precluding CMS from implementing its COVID-19 vaccination mandate is similarly on appeal but in the Fifth Circuit Court of Appeals.

Healthcare employers should continue to follow these evolving legal issues to ensure compliance in this ever-changing landscape.

Physicians often have a legal obligation to report conduct which they believe may constitute negligence, or demonstrate an individual’s inability to practice medicine competently, safely, or within the bounds of the relevant code of medical ethics. Because of the nature of the information required to be reported, it is not unusual for the physician (or other medical provider) who is the subject of the report to contend the information is inaccurate or defamatory. In a decision earlier this year, the Iowa Supreme Court ruled that a hospital did not defame a surgeon when it reported suspected physician misconduct to the state licensing board or to the National Practitioner Data Bank (NPDB). The decision, Andrew v. Hamilton Cnty. Pub. Hosp., 960 N.W.2d 481 (Iowa 2021), highlights how hospitals and individuals can avoid defamation claims when engaging in mandatory reporting.

In Iowa, licensed physicians are legally required to notify the Iowa Board of Medicine if they know of another physician’s “careless acts or omissions that demonstrate a licensee’s inability to practice medicine competently, safely, or within the bounds of medical ethics.” Iowa Admin. Code r. 653-22.2(l).

Here, Hamilton County’s public hospital terminated Dr. Mark Andrew’s employment in 2006 pursuant to a “cause” provision in his employment agreement. The decision to end employment was made after the hospital conducted an internal investigation prompted by an inquiry from a pharmacy expressing concerns about large quantities of narcotics Dr. Andrew prescribed for one patient, and the frequency of refills to that same patient.

An outside physician, who served as a consultant for the hospital on various personnel issues and assisted with its peer review process, filed a report with the Iowa Board of Medicine at the conclusion of the hospital’s internal investigation. The report recited facts surrounding the hospital’s investigation, including a suggestion that the state board investigate Dr. Andrew’s surgical competency. Dr. Andrew sued the hospital for defamation.

The Iowa Supreme Court determined the consulting physician’s statements were opinions that did not amount to a defamation claim, especially since Dr. Andrew did not allege that the report was false. In reaching this decision, the Court noted “[p]rotecting physicians’ ability to identify the concerns raised by specific information they are required to report is a significant public good that supports precluding a defamation action here.” While the hospital also claimed they were not otherwise liable for defamation because the statements were made to the NPDB and otherwise entitled a privilege typically afforded when making statements as part of official proceedings, the Iowa Supreme Court declined to rule on this issue.

Many hospitals and physicians are legally required to report suspected physician misconduct to state licensing officials or to the NPDB. Where appropriate, the reporting party should express concerns in the form of opinions that reflect specific, undisputed facts aimed at protecting the public. All reports should be accurate, factual, and void of any conclusory accusations in order to best avoid liability for a defamation claim.

(Law clerk Ariel Rothfield contributed significantly to this article.)

The U.S. District Court for the Western District of Louisiana has granted a preliminary injunction enjoining the Centers for Medicare and Medicaid (CMS) from enforcing its COVID-19 vaccine mandate nationwide. Louisiana et al. v. Becerra et al., No. 3:12-CV-03970 (W.D. La. Nov. 30, 2021). This injunction takes immediate effect. The Louisiana federal court carved out of its order the 10 states that previously received a preliminary injunction from the federal court in the Eastern District of Missouri. Read more.

Ten states filed a lawsuit challenging CMS’ Interim Final Rule (IFR) requiring COVID-19 vaccination amongst a wide range of staff working at Medicare- and Medicaid-certified providers and suppliers. The U.S. District Court for the Eastern District of Missouri granted the states’ request for a preliminary injunction, pending a trial on the merits of the claims, but limited the injunction to only the 10 states at issue. With the first CMS compliance date (December 5) fast approaching, healthcare employers, and other indirectly affected employers, are scrambling to navigate this patchwork of rules. Learn more.

Governor Murphy issued Executive Order 252, requiring employers in covered healthcare and other high risk congregate settings, including hospitals, correctional facilities and certain long-term care facilities, to establish a policy that, among other things, mandates vaccinations or weekly testing for “covered workers.”

By September 7, 2021, “covered setting” employers must establish a policy that requires covered workers to (1) provide adequate proof of full vaccination; or (2) submit to testing, at least one to two times per week. The “covered workers” in the mandate includes, but is not limited to, both full-time and part-time employees, as well as contractors, and individuals providing operational or custodial services, or administrative support.

“Covered” healthcare settings include:

  1. Acute, pediatric, inpatient rehabilitation, and psychiatric hospitals (including specialty hospitals, and ambulatory surgical centers);
  2. Long-term care facilities;
  3. Intermediate care facilities;
  4. Residential detox, short-term, and long-term residential substance abuse disorder treatment facilities;
  5. Clinic-based settings (e.g., ambulatory care, urgent care clinics, dialysis centers, Federally Qualified Health Centers, family planning sites, and opioid treatment programs);
  6. Community-based healthcare settings (e.g., Program of All-Inclusive Care for the Elderly, pediatric and adult medical daycare programs, and licensed home health agencies and registered healthcare service firms).

The Executive Order does not appear to apply to many types of primary care offices but, rather, seems to be directed toward higher population facilities. It is also unclear whether certain distinct offices within large hospital organizations are also subject to these requirements, if they do not fall under the definition of a “covered setting.” Employers should note that the requirements seem to apply to all employees, as opposed to only patient facing employees.

Employers should carefully review whether they are subject to the Executive Order, and prepare compliant policies as needed. Employers should also consider whether any other legal issues are implicated through their new policies, such as privacy issues pertaining to protected health information, and employee compensation issues pertaining to the costs of tests, or worktime spent completing a test.

To learn more, read our legal update publication here. If you have questions about how this Executive Order impacts your business or on your company’s specific practices or policies, please reach out to the Jackson Lewis attorney with whom you regularly work, or any member of our Healthcare Industry Team.