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EXHIBIT 10
MEDICAL DIRECTOR AGREEMENT
This MEDICAL DIRECTOR AGREEMENT ("Agreement") is entered into effective
the 1st day of January, 1998 (the "Effective Date") by and between AmSurg Corp.,
a Tennessee corporation ("AmSurg") and Xxxxxxx X. Xxxxxxxx, M.D. ("Medical
Director").
WITNESSETH:
WHEREAS, AmSurg develops, acquires and operates practice-based
ambulatory surgery centers in partnership with physician practice groups
throughout the United States; and
WHEREAS, AmSurg desires to engage the Medical Director to assist AmSurg
in the direction and coordination of all medical aspects of AmSurg's operations;
and
WHEREAS, Medical Director is a physician duly licensed to practice
medicine in the State of Tennessee and is willing to serve in the capacity as
medical director of AmSurg upon the terms and conditions set forth in this
Agreement.
NOW, THEREFORE, in consideration of the provisions set forth herein and
other good and valuable consideration, the receipt of which is hereby
acknowledged, AmSurg and the Medical Director agree as follows:
AGREEMENT
1. DUTIES AND RESPONSIBILITIES.
A. The Medical Director shall be responsible for the direction
and coordination of all medical aspects of AmSurg's
operations. The Medical Director shall have the duties and
responsibilities assigned to him from time to time by the
Company's senior management, including but not limited to:
(1) assisting in developing policies and procedures for
AmSurg's ambulatory surgery centers, physician
practices and specialty physician networks;
(2) ensuring that AmSurg adopts appropriate medical
procedures for implementation in its ambulatory
surgery centers that comply with all local, state and
federal regulations and policies;
(3) acting as a liaison between AmSurg and each of the
medical directors of the ambulatory surgery centers
owned by AmSurg;
(4) acting as a liaison between AmSurg and external
organizations and individuals, including managed care
organizations, consultants and others;
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(5) assisting AmSurg with designated compliance program
functions;
(6) assisting with peer review functions as needed or
requested by AmSurg; and
(7) assisting the Development staff as requested.
B. The Medical Director agrees to devote whatever time is
necessary to adequately perform his duties hereunder. The
parties anticipate that in order for the Medical Director to
adequately fulfill his duties and responsibilities, he will
need to devote approximately 150 hours per year to Medical
Director duties.
2. COMPENSATION. In consideration of the duties and responsibilities of
the Medical Director, AmSurg hereby agrees to pay the Medical Director
annual compensation in the amount of $50,000 to be paid in equal
monthly installments in arrears due on the first day of each month
commencing on the first month after the Effective Date.
3. TERM.
A. The initial term of this Agreement shall be for one (1) year
from the Effective Date (the "Initial Term"). This Agreement
shall be automatically renewed thereafter for additional one
(1) year terms unless either party gives the other party
written notice of termination no later than 90 days prior to
the anniversary date hereof.
B. This Agreement may be terminated by either party without cause
at any time upon ninety (90) days prior written notice to the
other party.
4. DEFAULT.
A. The Medical Director shall be in default of this Agreement if
he fails to perform any material term hereof, and such failure
is not cured within 30 days after receipt of written notice
from AmSurg of such failure. In the event of such default,
AmSurg shall have the right to terminate this Agreement
immediately by written notice to the Medical Director.
B. AmSurg shall be in default of this Agreement if it fails to
perform any material term hereof and such failure is not cured
with 30 days after receipt of written notice from the Medical
Director of such failure. In the event of such default, the
Medical Director shall have the right to terminate this
Agreement immediately by written notice to AmSurg.
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5. IMMEDIATE TERMINATION. Upon the occurrence of either of the following events:
A. Personal misconduct by the Medical Director, including, but
not limited to, failure to comply with the ethical
provisions of the American Medical Association; or
B. The conviction of the Medical Director of any crime punishable
as a felony involving moral turpitude, immoral conduct or
professional misconduct or negligence.
Then in such event this Agreement shall terminate immediately and
AmSurg shall have the right to engage another physician to serve as
Medical Director for AmSurg.
6. INDEPENDENT CONTRACTOR. The relationship between the Medical Director
and AmSurg is, and shall remain, one of independent contractorship.
Nothing in this Agreement shall be construed to constitute either
party as the agent, employee or joint venturer of the other, nor shall
either party have the right to bind the other party or make any
promises or representations on behalf of the other party. AmSurg shall
have no control or direction over the manner in which the Medical
Director performs his responsibilities hereunder. The Medical Director
shall have no claim against AmSurg for vacation pay, sick leave,
retirement benefits, social security, worker's compensation,
disability or unemployment insurance benefits or other employee
benefits of any kind.
7. INDEMNIFICATION.
A. The Medical Director will indemnify and hold harmless AmSurg,
its officers and directors from any and all losses, costs,
damages, expenses and/or liabilities, including but not
limited to any attorney's fees incurred by AmSurg, its
officers or directors resulting from any lawsuit, claim or
other legal proceeding or threatened proceeding arising out of
or in connection with the acts or negligence or deliberate
omissions of the Medical Director in the performance of his
duties under this Agreement.
B. AmSurg will indemnify and hold harmless the Medical Director
from any and all losses, costs, damages, expenses and/or
liabilities, including but not limited to any attorney's fees
incurred by Medical Director resulting from any lawsuit, claim
or other legal proceeding or threatened proceeding arising out
of or in connection with the acts or omissions of AmSurg or
any officer, director or employee of AmSurg in the performance
of its obligations under this Agreement.
8. LIMITATION. The Medical Director agrees that during the Initial Term of
this Agreement and any renewals thereof, and in the absence of prior
written consent of AmSurg, the Medical Director shall not accept
similar administrative or medical administrative responsibilities from,
or serve in a similar capacity with, any other entity which is at such
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time engaged or is proposing to engage in a business of like or similar
nature to the business being conducted by AmSurg that, in the opinion
of the Board of Directors of AmSurg, could interfere or conflict with
the Medical Director's ability to adequately perform his
responsibilities under this Agreement. The Medical Director may serve
on the medical staff of hospitals as well as teach, lecture, write or
provide consultations and other activities, which are not otherwise
prohibited by this Section 8.
9. LIMITED RENEGOTIATION. This Agreement shall be construed to be in
accordance with any and all federal and state laws, including laws
relating to Medicare, Medicaid and other third party payors. In the
event there is a change in such laws, whether by statute, regulation,
agency or judicial decision that has any material effect on any term of
this Agreement, then the applicable term(s) of the Agreement shall be
subject to renegotiation and either party may request renegotiation of
the affected term or terms of this Agreement, upon written notice to
the other party, to remedy such condition.
The parties expressly recognize that upon request for renegotiation,
each party has a duty and obligation to the other only to renegotiate
the affected term(s) in good faith and, further, the Medical Director
expressly agrees that its consent to proposals submitted by AmSurg
during renegotiation efforts shall not be unreasonably withheld.
Should the parties be unable to renegotiate the term or terms so
affected so as to bring it/them into compliance with the statute,
regulation, or judicial opinion that rendered it/them unlawful or
unenforceable within 30 days of the date on which notice of a desired
renegotiation is given, then either party shall be entitled, after the
expiration of said 30 day period, to terminate this Agreement upon 30
additional days written notice to the other party.
10. NO REQUIREMENT TO REFER. The parties acknowledge and agree that nothing
contained in this Agreement requires the Medical Director to use or
recommend the use of facilities or services owned or operated by
AmSurg.
11. MISCELLANEOUS.
A. Law. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the state of
Tennessee.
B. Waiver of Breach. The waiver by a party of any breach of any
provision of this Agreement by the other party shall not
operate or be construed as a waiver of any subsequent breach
of the same or any other provision hereof by that party.
C. Entire Agreement. This instrument contains the entire
agreement of the parties and supersedes all prior agreements
and understandings between the parties with respect
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to the subject matter hereof. Amendments may be made to this
Agreement only upon the written approval of both AmSurg and
the Medical Director.
D. Severability. The provisions of this Agreement shall be
severable, and the invalidity of any provision, or portion
thereof, shall not affect the validity of the other
provisions.
E. Arbitration. All disputes relative to this Agreement shall be
resolved by arbitration pursuant to the rules of the
American Health Lawyers Association ("AHLA") then pertaining.
Arbitration proceedings shall be held in Nashville, Tennessee.
The parties may, if they are able to do so, agree upon one
arbitrator; otherwise, there shall be three arbitrators
selected to resolve disputes pursuant to this Section 11, one
named in writing by each party within 15 days after notice
of arbitration is served upon either party by the other and
a third arbitrator selected by the two arbitrators selected
by the parties within 15 days thereafter.
If the two arbitrators cannot select a third arbitrator within
such 15 days, either party may request that the AHLA select
such third arbitrator. If one party does not choose an
arbitrator within 15 days, the other party shall request that
the AHLA name such other arbitrator. No one shall serve as
arbitrator who is in any way financially interested in this
Agreement or in the affairs of either party.
Each of the parties hereto shall pay its own expenses of
arbitration and one-half of the expenses of the arbitrators.
If any position by either party hereunder, or any defense or
objection thereto, is deemed by the arbitrators to have been
unreasonable, the arbitrators shall assess, as part of their
award against the unreasonable party or reduce the award to
the unreasonable party, all or part of the arbitration
expenses (including reasonable attorneys' fees) of the other
party and of the arbitrators.
F. No Presumption Created. The parties acknowledge that they have
independently negotiated the provisions of this Agreement,
that they have relied upon their own counsel as to matters of
law and any application to this Agreement and that neither
party has relied on the other party with regard to such
matters of law or application. The parties expressly agree
that there shall be no presumption created as a result of
either party having prepared in whole or in part any provision
of this Agreement.
G. Assignment. The Medical Director acknowledges that the
services to be rendered by him are unique and personal, and
that the Medical Director therefore may not assign such
rights, duties or obligations hereunder. The rights,
obligations and duties of AmSurg hereunder shall inure to the
benefit of and be binding upon successors and assigns of
AmSurg.
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H. Notices. Except as otherwise provided in this Agreement, any
notice, payment, demand or communication required or permitted
to be given by any provision of this Agreement shall be duly
given
(1) if delivered in writing, personally to the person to
whom it is authorized to be given,
(2) if sent by certified or registered mail, facsimile,
overnight courier service, or telegraph, as follows:
If to AmSurg:
AmSurg Corp.
Xxxxx 000
Xxx Xxxxxx Xxxxx Xxxxxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Facsimile: (000) 000-0000
Attn: Xxxxxx X. Xxxxx
If to the Medical Director:
Xxxxxxx X. Xxxxxxxx, M.D.
Gastrointestinal Associates, P.C.
000 Xxxxxxxxxx Xxxx
Xxxxx 000
Xxxxxxxxx, Xxxxxxxxx 00000-0000
Facsimile: (000) 000-0000
or to such other address as either party may from time to time
specify by written notice to the other party.
Any such notice shall be deemed to be given as of the date so
delivered, if delivered personally, as of the date on which
the same was deposited in the United States mail, postage
prepaid, addressed and sent as aforesaid, or on the date
received if sent by electronic facsimile.
I. Access to Books and Records. Upon written request of the
Secretary of Health and Human Services or the Comptroller
General or any other duly authorized representatives
thereof, the Medical Director shall make available to the
Secretary those contracts, books, documents and records
necessary to verify the nature and extent of the cost of
providing his services. Such inspection shall be available
up to four (4) years after such services are rendered. If
the Medical Director carries out any of the duties of the
Agreement through a subcontract with a value of Ten Thousand
Dollars ($10,000) or more over a 12 month period with a
related
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individual or organization, the Medical Director agrees to
include this requirement in such subcontract. If a request
from the Secretary or her representative is served on the
Medical Director, the Medical Director will notify AmSurg in
writing prior to responding to the request.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first set forth above.
AMSURG CORP.
By:/s/ Xxx X. XxXxxxxx
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Title: President
MEDICAL DIRECTOR:
/s/ Xxxxxxx X. Xxxxxxxx, M.D.
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Xxxxxxx X. Xxxxxxxx, M.D.
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