People are internally inconsistent. Many contracts in the healthcare sphere are inconsistent, too. The first causes grief, the second shifts power.
Cognitive Dissonance
The psychologist, Leon Festinger, coined the term “cognitive dissonance” to describe the mental discomfort that results from the mismatch between what we do and our thoughts and values.
We eat that donut, yet we want to lose 7 pounds. We buy that bracelet, but we told our spouse that we’re getting our spending under control. We want to advance our careers but hanging out at sports bars is just so much fun.
None of that is news to you. At least if you’re human.
But did you know that another sort of dissonance lurks in many contracts commonly encountered in the healthcare space and that, unlike drugs versus sobriety, it’s not a bug but a feature?
Inter-Contractual Dissonance
What I call “Inter-Contractual Dissonance” describes a contract drafting strategy in which apparently favorable or neutral provisions appearing, generally prominently, at one place in an agreement are purposefully contradicted or greatly tempered at another, often, but not always, less prominent place in the same document.
Take, for example, a provider agreement between your group and some payor.
You negotiate at length for favorable rates and a 5 year term with an automatic annual upward only adjustment pegged to the CPI. You break out the party hats!
Yet you don’t notice the landmine buried in the middle of a half-page-long paragraph forty-three pages down in the document: the payor can terminate on 3 days’ notice if your group deviates from the payor’s “operational requirements”. What’s the real term of that agreement, 5 years or a few days? Is “CPI” an acronym for Consumer Price Index or just crappy provision inside?
Or consider something less hidden but just as dissonant, a contract with a placement agency in respect of finding a new physician for your group. It provides at Sec. 2 that the fee is due upon a candidate entering into an employment agreement with your group. You’re happy to see Sec. 3, with its bolded, all-caps heading GUARANTEE, that should the new employee depart within 30 days of entering into an employment agreement, the agency will exert its best efforts to find another candidate without charging an additional fee.
Sounds great. But wait. If as is most often the case when hiring through agencies, the physician is engaged more than 30 days before he starts, the “guarantee” becomes far less valuable or maybe just pixels on a screen. You hire “Dr. Sally” on February 15 for a position to commence on June 1 and there’s a pretty good chance that if Sally discovers that she doesn’t like working for you, it’s going to happen in June or July, well after the “guarantee” has expired.
And even if you clarified the language such that the guarantee period begins upon commencement of services, if Sally leaves even one day later after she starts work, what real value is there in the agency’s “best efforts” — even their no-one-could-expect-better efforts might fail to result in a replacement. You focused on the word “guarantee” but didn’t realize that the guarantee is not an actual replacement guarantee but an “efforts” guarantee. Now you’ve got no doctor and no money. Sweet deal; just not for you.
These provisions within the same contract are purposefully internally inconsistent. They are not drafting errors. Like cognitive dissonance in a human being, they’re causing grief and tension, but just on you, not on the party that controlled the contract. To the contrary, they bring that party a perverse form of pleasure.
