This article has been written by Mayank Srivastava pursuing the Diploma in Advanced Contract Drafting, Negotiation and Dispute Resolution from LawSikho. This article has been edited by Ruchika Mohapatra (Associate, Lawsikho) and Dipshi Swara (Senior Associate, Lawsikho)
There are many amazing medical drama movies and series out there. Among these, one such TV series is “The Good Doctor”. This series focuses on the character of Shaun Murphy, a young autistic surgeon whose skills and knowledge are unsurpassed. This series beautifully demonstrates the working life of doctors, their long hour’s shifts, and the commitment of the hospital to save every life possible. Yet, scenes at the operation theatre remain the most interesting. Surgeons along with the assistants at the operation theatre have a job to be done, surgeons have their specific role, and assistants have their own. And together they make the impossible possible, that is, saving human lives. Coming to the non-fictional world, we don’t realize much about what goes behind the curtain. The role of surgical assistants, their agreements with the hospitals, obligation of hospitals and assistants towards each other, and whether there exists any formal structure to draft an agreement for such relation between assistant and the hospital. Through this article, the author seeks to shed light on all the aspects of a surgical assistance service agreement.
What is a surgical assistance agreement?
Before defining the surgical assistance agreement, we must understand who surgical assistants are.
Surgical assistants are qualified health professionals whose role is to assist the surgeons and nurses during the surgery. They perform preoperative and postoperative duties for better treatment of the patients. It is their job to help the surgeon carry out a safe operation with optimal results for the surgical patient. They work directly under the supervision of surgeons and as per the hospital terms and policies.
Some of the services rendered by the Surgical assistant: –
a) Administering needles;
b) Closing surgery sites;
c) Controlling bleeding;
d) Dressing wounds;
e) Performing minor surgical procedures;
f) Facilitate positioning of the patient;
g) Assist circulator and anesthesia;
h) Aid in the transfer of patient;
i) Apply specific dressing material;
j) Follow patient to recovery as needed, etc.
The Surgical Assistance agreement is the contract between the hospital and the agency which provides services of surgical assistants. During the surgery, the surgeons require the assistance of various services (as mentioned above), and these services are rendered by surgical assistants. To appoint such assistant(s), to specify the roles and responsibilities of those assistant(s), and the duration and availability for which the surgical assistants are mandatory to be present in the hospital, this agreement becomes essential.
Significance of surgical assistance agreement
1) Avoiding mismanagement and uncertainty
As mentioned above, the services of surgical assistants vary, and there exist many types of surgical assistants who perform different tasks. In a case where surgical assistants with unregulated working terms get appointed in the hospital, it would cause a huge mismanagement and uncertainty in the performance of surgery as well as in other day-to-day works.
The duties of surgical assistants can be divided into preoperative and postoperative duties and there are few obligations that are mandatory for the surgical assistants, like- Arrival time, availability, responsibilities etc. It is recommended to regulate these terms in the contract otherwise the system and relationship between the hospital and surgical assistant would lead to mismanagement.
2) Functioning of surgery, the reputation of the hospital
Better services and reputation are interconnected with each other. Behind the services rendered by the surgical assistant, the primary goal behind is to help the surgeon and ease the process of surgery and offer better post-operative care. Thereby, this is an essential agreement to uphold the quality of services and consequentially, the reputation of the hospital.
3) Avoiding post- contractual conflicts
Post-contractual conflicts contain complaints regarding infringement of non-compete, intellectual property, or any other clause. Thereby, by drafting this agreement, the parties can protect their individual interest. And further to provide remedies for any future conflicts, the parties can also stipulate an efficient dispute resolution clause to save time for each party.
Essential clauses of surgical assistance agreement
1) Responsibilities of Assistant
It is the most essential clause of the agreement. The hospital (party) shall stipulate all the duties, obligations, and responsibilities under which the services of surgical assistants are required. Responsibilities like, closing wounds, cutting sutures, monitoring vitals on electronic equipment, inserting tubes and administering needles, monitoring time schedule during emergency cases, obligations with regards to bylaws, rules, etc., and prohibitions of fraud and abuse with medical programs, should be mentioned here. An example of this clause is mentioned as follows;
“The Surgical Assistant shall provide surgical assistant coverage for elective and emergency cases from 7:30 AM to 3:30 PM provided that the Hospital gives notice sufficient time period, usually 24-48 hours and at least 45 minutes for emergency cases.
No Party shall knowingly or intentionally conduct its behavior in such a manner as to violate the prohibitions against fraud and abuse in connection with the Medicare and Medicaid programs.
The Parties shall comply with all state and local laws and regulations and the standards of any applicable organization, including, but not limited to the Healthcare Organizations.”
2) Responsibilities of Hospital
Drafting this clause is as important, if not more, as the responsibility of a surgical assistant. Since the surgical assistant will work as per the guidance and terms of the hospital, it becomes essential to stipulate such terms beforehand, otherwise, it would lead to mismanagement. In this clause, the parties shall also stipulate terms that would help the surgical assistant during the course of his/her work, for ex- patient information. An example of this clause is mentioned as follows:
“The Hospital shall pay compensation for its willingness to provide services from 7:30 am to 3:30 pm daily including call coverage services.
The Hospital shall provide patient information to the Surgical Assistants for billing purposes.”
Compensation for surgical assistant’s services including other benefits shall be stipulated here. An example of this clause is mentioned as follows:
“The Surgical Assistants shall be entitled to reasonable compensation from the Hospital for all services rendered by him hereunder. The Surgical Assistant shall also be entitled to reimbursement from the Hospital for all expenses paid or incurred by it in the performance of its duties.”
“The Surgical Assistant shall be eligible for the compensation of Two Lakh Fifty Thousand Rupees (Rs 2,50,000). Payment will be made to the Surgical Assistant on a bi-weekly basis consisting of twenty-six pay periods per year.”
4) Term and Termination
Grounds of termination, and the date, or the year by which the normal termination will be executed, shall be stipulated in this clause. This is an essential clause to stipulate as to what the circumstances are that will be grounds for terminating the agreement. An example of this clause is mentioned as follows:
“This Agreement is effective for a period of 24 months (2 years) from the commencement date. Either party shall have the right to terminate this Agreement upon thirty (30) days written notice to the other party.
Either party shall terminate the Agreement for cause. Such termination may be evidenced by written notice which shall specify thereof to Surgical Assistants or Hospital. The term “cause” shall include any material breach of this Agreement.”
This clause protects the surgical assistants from working for a direct competitor within an area for a specific period of time. This clause is usually used as a protective measure for safeguarding the interests of the hospital. An example of this clause is mentioned as follows:
“The Surgical Assistant hereby agrees that, without the prior written consent of the Hospital, directly or indirectly, during the term of this Agreement and for a period of 1 year from the termination of this Agreement, the Surgical Assistant shall not engage with any hospital which is competitive with the Hospital.”
6) Intellectual Property
Every hospital achieves success and reputation not only through its services but also through its technology, process, and other methods of functioning. This clause is essential to protect the interest of the hospital at present as well as in future time. An example of this clause is mentioned as follows:
“The Surgical Assistant agrees that all technology, processes, innovations, methods and including but not limited to all patents, copyright, copyright registrations in and to any of the foregoing along with the right to practice, use, reproduce which related to the surgical assistant services to patients which are developed or made by the Surgical Assistant while employed by the Hospital belong to the Hospital.”
7) Independent Contractor
An Independent contractor is defined as an independent/self-employed worker who is appointed to perform certain tasks. Such a contractor is not like an employee but an individual entity that works for other companies or individuals. This clause shall be drafted only in such cases where the surgical assistant is an independent contractor or whether the parties wish to maintain the relationship as an independent contractor. An example of this clause is mentioned as follows:
“It is expressly agreed that the Parties shall be an independent contractor and the relationship of the Parties shall not constitute as to create a partnership, employment, or joint venture relationship between the parties. Neither party shall make any claims upon the other party for any employee benefits, employment or income taxes, unemployment insurance, or workers compensation benefits of any kind.”
To hold the other party not liable during service provided, this clause shall be stipulated. This is not a mandatory clause and it is dependent on the party’s wishes whether to indemnify for losses or not. An example of this clause is mentioned as follows:
“The Surgical Assistants agrees to indemnify the Hospital and save it harmless against any liabilities, including judgments, costs, and reasonable counsel fees, for anything done or omitted by the Surgical Assistants in the execution of this Agreement, except as per the clause 3 (Term and Termination).
9) Applicable law
The medical services shall always comply with the laws of the country. And therefore, services rendered by the surgical assistant shall comply with such laws. An example of this clause is mentioned as follows:
“This Agreement shall be governed by and construed in accordance with the laws of India without regard to principles of conflict of laws. The parties further agree that if a controversy or claim between them arises out of or in relation to this Agreement and results in litigation, the courts of New Delhi shall have jurisdiction to hear and decide such matter.”
The Surgical Assistant Agreement is an essential document that stipulates terms that are mandatory for the services rendered by the Surgical Assistant to assist the surgeon. It helps avoid mismanagement and post-contractual conflicts between the parties. Clauses- Responsibilities of Hospital; Surgical Assistant, Non-compete and Compensation, Non-compete and Intellectual Property are mandatory to be stipulated. Parties shall also consider as to what type of relationship they wish to maintain in the Agreement- Independent contractor or not. Important points that the parties need to keep in mind- what kind of requirement is there for the hospital to assist the surgeon, availability, and other services rendered by the Surgical Assistant. All mentioned above points can be used to draft a clearer and suitable agreement as per the terms of the parties.
Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.
LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:https://t.me/joinchat/J_0YrBa4IBSHdpuTfQO_sA