The Health Care Arbitral Tribunal (Arbitral Tribunal) has pronounced a decision on a dispute between an independent medical specialist and a Medical Specialist Company (MSC) for the first time since the introduction of the comprehensive rates on 1 January 2015. Although neither party has terminated the existing (membership) agreement between them, the Arbitral Tribunal is of the opinion that termination of membership and deregistration of the specialist from the members' register are justified.

SPECIALIST TERMINATES HIS DUTIES AT THE HOSPITAL BUT SUBSEQUENTLY RECONSIDERS HIS DECISION

The case is as follows: An anaesthetist had been working as an independent specialist at the hospital on the basis of an admission agreement since 1 January 2003. In December 2014, an MSC was set up and it concluded a cooperation agreement with the hospital. Pursuant to a Connection and Service Contract (C&S Contract), the anaesthetist became a member of the MSC for an indefinite period of time on 31 December 2014. In the C&S Contract, the parties agreed that this contract would end on termination of the anaesthetist's MSC membership. The decision does not specify any circumstances under which the MSC membership terminates.

The anaesthetist informed the hospital's board of directors on 31 December 2014 that he wished to terminate his work at the hospital with effect from 1 July 2015. The board of directors confirmed the termination of his medical duties at the hospital with effect from 1 July 2015.

In May 2015, the anaesthetist informed the patient care director at the hospital that he was willing to continue his work at the hospital after 30 June 2015. The patient care director responded by informing the anaesthetist that the board of directors, the medical staff board and the MSC board all agreed to postpone termination of the anaesthetist?s medical duties from 30 June 2015 to 31 December 2015.

Some months later, the anaesthetist informed the MSC board in writing that his position at the hospital and the question of when he would be terminating his duties had been the subject of discussion for some time. The anaesthetist added that he had not requested any postponement of the date on which he intended to terminate his duties. He claimed that the MSC board had agreed to a request that he himself had not made. He also claimed that he had never requested termination of his MSC membership either. In response to this communication, the MSC stated that the C&S Contract would terminate on 31 December 2015, and that the anaesthetist?s medical duties at the hospital would consequently be terminated as well. The anaesthetist was also deregistered from the MSC members' register on 1 January 2016.

The anaesthetist subsequently instituted interlocutory proceedings in which he requested the Arbitral Tribunal to order the MSC to reverse his deregistration in the MSC register and to enable him to resume his medical specialist duties at the hospital.

DECISION OF THE ARBITRAL TRIBUNAL

The Arbitral Tribunal found that the MSC and the anaesthetist had not terminated the C&S Contract, but this did not mean that the claims should be upheld. The anaesthetist stated that when he wrote the letter dated 31 December 2014, he was not aware of all the particulars relating to the introduction of the comprehensive rates and the related change in structure. The Arbitral Tribunal is of the opinion that the tenor of this letter unmistakably expresses the anaesthetist's intention of announcing his departure with effect from 1 July 2015. By its very nature, this announcement of his intention to leave the hospital is incompatible with continuation of his membership of the MSC. Informing the hospital of the termination of the anaesthetist's duties at the hospital was no longer adequate on 31 December 2014 because the admission agreement had already terminated by then and the anaesthetist no longer had any direct contractual relationship with the hospital with effect from that date.

The Arbitral Tribunal also stated that all communications from the MSC made it clear that the MSC also interpreted the letter as termination of membership. There are no further communications, such as acceptance of unlimited continuation of the anaesthetist's duties at the hospital.

In view of the foregoing, the Arbitral Tribunal dismissed the claims. According to the Arbitral Tribunal, there was all the more reason to do so because a substantial breach of trust had meanwhile arisen between the MSC (as well as the medical staff) and the anaesthetist.

This decision is remarkable because MSCs' Articles of Association and agreements between MSCs and their members often state in great detail when membership and the relevant agreements will end (e.g. by means of notice). However, in the case under review, the Arbitral Tribunal decided to terminate the membership on other (practical) grounds.