5 Steps in OMS Contract Negotiations: What Residency Won’t Tell You

Danielle Williams, DMD, MD 2/23/2024

For oral and maxillofacial surgery (OMS) professionals emerging from residency in search of a full-time job, the ability to successfully negotiate an employment contract can make a long-term difference in quality of life. Often, contracts sneak in small line items such as a non-compete distance of many miles that the uninitiated eye may not notice.

As an early-career professional myself, I know the challenge of navigating a detailed contract. I made the decision when negotiating for my current position to hire a lawyer, and through this process, learned many tips and strategies I now share with other surgeons. Often, negotiation is a hush-hush subject, but I believe this sets up surgeons to make decisions they otherwise would not. Although I am not a lawyer myself, in this article I have compiled five steps OMS professionals should follow as they negotiate a contract.

Step 1: Evaluate the Practice

Before being offered a contract, an OMS professional should evaluate the practice itself and ask as many questions as possible to ensure a good fit for their lifestyle and needs.

For example:

• Are you the primary surgeon?
• Are you taking over from another surgeon? Will there be a transition period or mentorship?
• How will you get paid? Is it collections-based or a guaranteed salary, with or without bonus?
• What type of procedures are on the schedule?
• Are privileges at a hospital required? If so, what level of trauma call do you take? Be aware that privileges are required to maintain board certification.
• If the practice is associated with a hospital, you may be required to be on-call every couple of weeks. Sometimes the pay for that on-call is disseminated throughout the practice or partners.

Step 2: Hire a Lawyer and Determine Salary

After vetting the practice, you should request a contract and hire a lawyer. I understand another big expense (typically $750 - $1,500 at the time of publication) can seem like a burden, but your lawyer will absolutely help you negotiate terms that will make up for this cost.

One of the most important considerations is what type of contract is being offered. There is a significant distinction between W2 and 1099 contracts (independent contractor). W2s are becoming more common these days, but itinerant surgery positions usually are 1099 positions.  If getting paid as a 1099 worker, you would want to ensure there are no clauses that restrict your ability to practice elsewhere. This is especially important with part-time jobs. There are different tax advantages and disadvantages to each type of contract. I recommend speaking with a tax professional regarding these nuances.

When deciding the method of compensation, it is best to determine how busy you expect to be that year. If you are in a new practice and the office will be slow, a base salary with or without bonus would be advantageous. However, in a practice with a packed schedule, collections-based could be more financially beneficial.

I would recommend requesting a monthly bonus instead of a yearly one if you choose a base pay with bonus. When you crunch the numbers, you will likely make more with a monthly bonus. Also, review whether credit card fees or even CareCredit fees will be deducted from your pay. Itinerant surgery contracts typically will have deductions for things such as supplies, assistant pay, and more. This can significantly reduce your take-home pay.

You went to school for many years and likely accrued high debt throughout your training. You deserve to be paid fairly. Ensure your take-home pay is commensurate with industry standards by asking friends or classmates who graduated a year or two before you and who work in a similar location. Someone who has been in the workforce for 30+ years is unlikely to have an accurate gauge of salary expectations.

Step 3: Determine What’s Included

Memberships to professional organizations, licensing fees, malpractice insurance, hospital credentialing, and board certification costs start to add up. Typically, an itinerant model will not cover any of these.  When it comes to malpractice insurance, investigate if you can choose your own or if they choose for you. If the policy is claims-made, you are going to need tail coverage if you change insurers in the future. The cost of tail coverage can be a staggering amount as high as 200% of your premium. In my opinion, you should choose a malpractice carrier that allows continuous coverage between jobs. When I moved jobs early in my career, I was able to keep my insurance. Sometimes, your preferred choice of malpractice carrier may result in a higher premium but will better protect you should a legal situation arise.

As with any job, you need to consider what other benefits are included. This can be health and dental insurance, a 401k, a sign-on bonus, coverage of moving costs, and continuing education. Will they provide you with credit for continuing education courses? Some courses are becoming quite pricey so this could be incredibly valuable. If they help cover these costs, do they include travel costs? In addition, some practices will offer to pay for written or oral boards for ABOMS.

Step 4: Consider the Lifestyle You Want

How much vacation time is offered and how is it accrued? How many days of the week will you work? Young surgeons may have the energy to work five days a week, but if you want less, this needs to be specified in the contract. Also, you don’t want to use your precious vacation time to travel for continuing education. Consider negotiating into your contract a certain number of days to spend on these courses. Additionally, your contract can specify if and when you’ll have an opportunity for a partnership. This can include a specific timeline to the buy-in.

Make certain your contract clearly outlines what happens if you decide to leave the practice. Will your non-compete shut you out of your city? Non-competes are typically a specified distance for a specified time, such as two years and within 10 miles. However, I have heard of non-competes with much further distances. Failing to negotiate this part of your contract can cause your life to be disrupted if you must suddenly find a position in another city.

A contract should specify your length of employment. Nevertheless, there can be language that specifies conditions of termination during the contract term with notice from the practice. The stated notice period is usually between 90-120 days. It may also allow the surgeon to leave with the same notification.

Step 5: Send in Your New Draft & Finalize Your Contract

Once the new draft of your contract is in your hand, you will review it with your lawyer. Afterward, you will send it back to the practice with any comments or requests for changes. If they refuse to negotiate at all with you, it’s probably not a good fit, especially if what you are asking for is not unreasonable. One lawyer that I spoke with negotiates hundreds of contracts yearly and revealed only a few flat-out refused to negotiate. You will have to consider if you want to work somewhere that is not willing to meet any of your requests.

You may wonder if you should disclose the use of a lawyer. In my opinion, there is no shame in revealing you have a lawyer. They hired a lawyer to write the contract, so why shouldn’t you hire one to review it? This opens up the communication channel, allowing you to say during the process “my lawyer recommended” which can help show your potential employer that you understand the terms presented. Otherwise, your lawyer can assist behind the scenes and draft responses for you.

I have known people who have bought homes in a city before the ink is dry on their contract only for it to fall through. Do not let this happen to you! It is my hope that this article has illuminated some of the “scary” details of contract negotiation. I believe with this advice and your lawyer’s support, you will land the perfect contract and position.