Preview
FILED
3/1/2021 12:00 AM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Margaret Thomas DEPUTY
No. DC-20-03255
DR CELINA DENISE CEPEDA ) IN THE DISTRICT COURT
)
PLAINTIFF
V. ) 1628” JUDICIAL DISTRICT
)
ALBERT HAINE QUAN, M.D.P.A. )
DEFENDANT ) DALLAS COUNTY, TEXAS
PLAINTIFF’S REPLY ON HER MOTION AND BRIEF
FOR PARTIAL SUMMARY JUDGMENT ON LIABILITY
AND
PLAINTIFF’S OBJECTION TO ORAL TESTIMONAY
IN CONTRAVENTION OF THE CONTRACT PROCEDURE TO MODIFY
TO THE HONORABLE JUDGE OF SAID COURT:
Plaintiff Dr. Celina Denise Cepeda files this Reply on her Motion for Partial Summary
Judgment on liability and in support thereof shows the Court as follows.
SUMMARY OF PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT
Plaintiff is entitled to summary judgment on liability because Defendant terminated
Plaintiff's employment with Defendant without giving her 90-days written notice of termination
required by contract resulting in $40,000.00 in damages.
Plaintiffs resignation after her termination was not a notice to terminate the contract, (2)
she had already been terminated by in violation of the contract, and (3) did not waive any rights
under the contract.
UNDISPUTED FACTS
While Defendant’s Brief (paragraph 4) states there is “controverting” evidence in the
form of a Declaration, it does not specify any facts which are controverted.
The following facts are undisputed:
1 The executed written contract (Section 5.2) provides it may be terminated only by
ninety (90) days written notice of intent to terminate with such termination to be
effective upon the expiration of the ninety-day period after notice
The executed written contract (Section 7.4) provides that no other agreement,
statements, or promise not contained in this Agreement shall be valid or binding.
There are no writings by either party giving ninety days written notice that the
contract between them is terminated.
Defendant’s November 1, 2019 letter to Plaintiff terminating Plaintiff cautions
Plaintiff of her obligations “” Per the existing Employment Agreement” and
continues to advise Plaintiff she will get her final paycheck (after certain notifications
about billing), that she leave her office keys and office laptop on her desk, she should
return her parking card to security and notifies her the medical staffing office has
been notified she was leaving the medical staff at Medical City Dallas.
In Plaintiff's resignation after her termination which was submitted at the request of
Defendant there is no mention of the written contract, no indication she was not
continuing to work during the 90-day notice period.
To the contrary, Plaintiff advised she intended to work during the 90-day termination
period and was ready, willing, and able to work during this period.
7. Defendant did not employ Plaintiff or pay Plaintiff wages for the 90-day period after
his November 1, 2019 letter to her.
Plaintiff did not obtain alternative employment until January 13, 2020. (See
Declaration of Celina Denise Cepeda with exhibits indicating an offer letter for Cook
Children’s Hospital was sent to her on November 21, 2019, a contract signed on
December 23, 2019, and notification on December 30, 2019 that her effective
employment date would be January 13 (2020). This Declaration is incorporated
herein for all purposes.
PLAINTIFF’S TERMINATION IN VIOLATION OF CONTRACT EFFECTIVE WHEN
SHE WAS TERMINATED NOVEMBER 1
The undisputed fact is that Defendant terminated Plaintiffs employment in writing on
November 1 without giving 90 days written notice required by the written contract.
The Dallas Court of Appeals holds when an employment contract requires a certain
period of notice, the employment may be canceled on shorter notice or upon none at all if the
employee is paid wages or salary for the specified notice period. Cushman and Wakefield, Inc.
y. Fletcher, 915 S.W.2d 538, 545 (Tex.App. — Dallas 1995) (citing Hussong v Schwan’s Sales
Enters., Inc., 896 S.W.2d 320, 326 (Tex.App. — Houston [1* Dist.] 1995, no writ). See also
Stolz v Wells, 43 S.W.2d 163 (Tex.Civ.App. Beaumont, 1931).
RESIGNATION WAS NOT A WAIVER OF THE 90 DAY NOTICE REQUIRED BY
THE CONTRACT
Defendant asserts Plaintiff resigned her employment (after her termination) and thereby
waived any rights to the 90 days written notice.
The only way to terminate the contract is by the terms of the contract which requires 90
days written notice of intent to terminate the contract. Nowhere in Plaintiff's resignation
requested by Defendant is there any reference giving 90 days’ notice required by the contract/
There is no reference that she did not intend to be employed during the written notice period nor
that she was waiving her right to work during the written notice period.
Also, Plaintiff notes as of her resignation she had already been excluded from the
workplace by Defendant’s letter four days earlier — she was instructed to return her office keys,
office laptop, parking card, advised that Defendant notified Medical City staffing she was no
longer on staff and advised how to get her final paycheck. Defendant had already violated the
contract by terminating her without giving her 90 days written notice and excluding her from the
workplace.
It is noteworthy Plaintiff was working to obtain alternative employment but was not able
to obtain effective employment until January 13, 2020. She did not sign a contract for
employment until December 23 and did not began work until January 13. Her Declaration states
she was ready, willing, and able to work after November 1 but was excluded from the workplace
by Defendant.
PAROLE EVIDENCE RULE
Defendant cites two cases arguing the parole evidence rule is inapplicable citing authority
that the rule does not bar evidence of modification or a new agreement or that the existing
written contract has been changed, waived, or abrogated in whole or in part.
Defendant’s two cases are inapposite since neither case deals with a situation where the
contract by its terms requires written notice of termination. Parole evidence cannot be considered
by the court when it construes such contracts, even if the evidence is admitted without objection.
Johnson y Driver, 198 S.W.3d 359 (Tex. App. — Tyler 2006, no pet).
Plaintiff objects to the admission of any testimony which contrives the written terms of
the contract.
The best and only evidence regarding Plaintiff's termination is Defendant’s November 1
written notice termination letter which refers to the contract, does not give 90 days’ written
notice, and excludes Plaintiff from the workplace as of November 1.
MARY
Defendant breached the contract by terminating Plaintiff's employment immediately on
November 1, 2019 without giving Plaintiff 90 days written notice of her termination or pay in
lieu of notice. The only written notice Defendant gave Plaintiff is a letter dated November 1,
2019 requiring her to turn in her keys, laptop and parking permit and advising how she would
receive her final paycheck.
Plaintiff's resignation after her termination did not waive her entitlement to 90 days
written notice of termination of the contract and therefore, she is entitled to 90 days pay in lieu of
notice.
CONCLUSION AND PRAYER
For the foregoing reasons, Plaintiff prays Plaintiff's Motion for Partial Summary
Judgment on liability be granted
Respectffilly sf aut
William M. Lamoreaux
900 Jackson Street Suite 180
Dallas, TX 75202
Tel 214/747-2012
Fax 214/747-3212
TBA No. 11852800
Attorney for Plaintiff
Dr. Celina Denise Cepeda
CERTIFICATE OF SERVICE
I certify that on February 27, 2021a true copy of Plaintiff's Reply on Her Motion for
Partial Summary Judgment and Objection to Evidence in Contravention of the Contract was
served on Defendant’s counsel of record M. Drew Siegel by electronic service through the
Court’s service provider and by email. , ) . dL
William Morris Lamoreaux
Attorney for Dr. Celina Denise Cepeda
E-mail: blamlaw@gmail.com
No. DC-20-03255
DR CELINA DENISE CEPEDA ) IN THE DISTRICT COURT
PLAINTIFF
v. 162" JUDICIAL DISTRICT
ALBERT HAINE QUAN, M.D.P.A.
DEFENDANT ) DALLAS COUNTY, TEXAS
SUPPLEMENTAL DECLARATION OF DR. CELINA DENISE CEPEDA
"My name is Celina Denise Cepeda, I am over the age of 18 years and my address is
1400 Hi Line Drive #1115, Dallas, Texas 75207.
“On October 31, 2019 I had communications with Cook Children’s Org. about
employment. See Exhibit C attached.
“On November 21, 2019, Cook Children’s Org. sent me a letter offering me employment’
See Exhibit C attached.
“On December 23, 2019 I signed a Physician Employment Agreement with Cook
Children’s Medical Center”. See Exhibit D attached being the first page of a lengthy
Employment Agreement between me and Cook Children’s Physician Network.
“On December 30, 2019 Cook Children’s Org. notified me my effective date of
employment would be January 13 (2020).: See Exhibit E attached.
“My first and only employment after being terminated by Albert Haine Quan M.D.P.A.
was with Cook Children’s Physician Network and began on January 13, 2020.
“I wanted to remain employed by Defendant until I officially began my employment with
Cook Children’s Physician Network. I was ready, willing, and able to work and advised Dr. Quan.
that I was entitled to work during the 90-day notice period specified in the contract.
“My name is Celina Denise Cepeda. My date of birth is March 6, 1983 and my address is
1400 Hi Line Drive #1115, Dallas, Texas 75207. I declare under penalty of perjury that the
foregoing is true and correct.
Executed in Dallas County, State of Texas, on the as ay February 2021.
h(t ‘t,
Celina Denise Cepeda, Declarant.
6/25/2020 Gmail - SECURE - Offer Letter
M1 Gmail Celina Cepeda
SECURE -Offer Letter
ss a Se mes <==
Teia Goleman Thu, Nov 21, 2019 at 4:46 PM
To: Celina Cepeda
Cc: Chloe Renz , Debbie Brimer
Hello Dr. Cepeda,
We are very excited that you may join the Cook Children's team! Your offer letter has been sent by FedEx to your
attention at 1400 Hi Line Drive, Apt. 115, Dallas, TX 75207, tracking number 777053224132, with no signature required
for delivery. You should receive it tomorrow, November 22, 2019. You will receive two offer letters signed by Robert
Goodwill, Sr. Vice President of Cook Children’s Physician Network. Please sign and return one letter in the enclosed
FedEx envelope and keep the other for your records. You may drop the envelope in any FedEx box/store that is
convenient for you. Once we receive your signed offer letter, we will proceed with your physician employment agreement.
| have attached a PDF copy of the letter for you to begin looking over. To expedite the process, Mr. Goodwill has asked
that you print the attached PDF, sign it and scan it back to us at your earliest convenience.
Please let us know if you have any questions.
Thank you,
Teia Coleman
Physician Recruitment Coordinator
Cook Children's Physician Network
682-885-3662 Phone
682-885-2106 Fax
Teja, Coleman@cookchildrens.org
%,
SecureCook Encrypted Message
Our Promise
Knowing that every child's life is
sacred, it is the promise of Cook
Children’s to improve the health of
every child in our region through
the prevention snd treatment of
Cook children's illness, disease, and injury.
Brh bee
https:/fmail google com/mail/v07ik=c2d996928 1 &view=piSscarch=all&permmsgid=msg-%3A 1 65085329923335729 | &simpl=insg-£H3A 1650853299233357291 2
6/25/2020 Gmail - SECURE - Offer Letter
SecureCook Encrypted Message
SecureCook Encrypted Message
2 — 7
‘Cepeda, Celina, MD - Offer Letter Signed by Robert Goodwill.pdf
154K
https://mail.google.com/mail/u/0%k=c2d996928
1 & view=pt&search=all &permmsgid=msg-£%3A 165085329923335729 &simpl=msg-£%3A 1650853299233357291 22
PHYSICLAN EMPLOYMENT AGREEMENT
[Cexia Cereps, M.D. — NerHroLocy]
‘THIS PHYSICIAN EMPLOYMENT AGREEMENT (this “Agreement") is made and
entered into this 23 day of peCdnnber,
20119 (the "Effective Date"), by and between Cook
Children's Physician Network, a Texas non-profit corporation ("CCPN"), and Celina Cepeda,
MD. ("Physician"), for employment commencing January 13, 2020 (the “Employment
Commencement Date”), subject to and contingent upon satisfaction by Physician of all
credentialing requirements of CCPN and Cook Children’s Medical Center (“CCMC”) and the
other requirements of and preconditions to employment set forth in this Agreement. If Physician
fails to meet oredentialing requirements of Article IX of this Agreement by January 1, 2020, or
fails to commence employment on the Employment Commencement Date, this Agreement shall
be null and void and neither party shall owe any obligation to the other.
WITNESSETH:
WHEREAS, CCPN is certified by the Texas Medical Board as a non-profit health
corporation described in Section 162 of the Texas Occupations Code;
WHEREAS, CCPN is a multispecialty physician organization that provides professional
pediatric services and services incident thereto through its employees who are duly licensed to
practice medicine in the State of Texas;
WHEREAS, Physician is a physician specializing in pediatric nephrology and is licensed
to practice medicine in the State of Texas; and
WHEREAS, CCPN hereby agrees to employ Physician, and Physician hereby accepts
such employment, all on the terms, covenants, and conditions set forth in this Agreement.
NOW, THEREFORE, for and in consideration of the mutual covenants and conditions set
forth below, CCPN and Physician covenant and agree as follows:
ARTICLE [
EMPLOYMENT AND DUTIES
11 Employment of Physician. Subject to the terms and conditions of this Agreement, CCPN
employs Physician as a PRN employee of CCPN who will transition to full-time status on
the as yet undetermined date when the CCPN Nephrology Clinic opens in Prosper, and
Physician accepts employment with CCPN on that basis. As such, Physician agrees to
devote Physician’s full professional time, attention, and energies as reasonably necessary
to perform all professional services and administrative duties assigned or delegated to
Physician by the CCPN Board of Directors (“Board” or “Board of Directors”) and/or
President of CCPN in accordance with applicable State and Federal laws and statutes and
applicable canons of professional ethics and shall not, during the term of this Agreement,
practice medicine except as an employee of CCPN. Physician agrees to devote such time
and provide such services within the scope of Physician’s license as is necessary to meet
the medical needs of the patients of CCPN and Physician’s professional and
administrative obligations, consistent with the written policies and procedures of CCPN
as determined and implemented from time to time. Physician’s services shall initially be
rendered at CCPN’s Nephrology Clinic, located at 1500 S. Cooper Street, Fort Worth,
Texas, 76104 (the “Primary Office”) until an as yet undetermined date when Physician’s
services will thereafter be rendered at the new location of the CCPN Nephrology Clinic PX IRIT dD
in Prosper (which will at that point become the “Primary Office”), or at such other
location as CCPN may designate from time to time.
12 General Duties of Physician. As a part of the day-to-day performance of services
hereunder, Physician agrees to:
(a) provide “on-duty” and “on-call” services in cooperation with CCPN and its other
physician employees; Physician acknowledges that coverage assignments are
intended to provide the availability of an appropriately qualified physician to
patients on a twenty-four (24) bours per day and seven (7) days per week basis;
Physician shall not substitute another physician to serve in Physician’s place
without CCPN’s prior approval; arrangements for coverage will be made under
the guidance, direction and ultimate control of CCPN and will provide for after-
hours, weekend and holiday coverage; Physician shall accept and receive
consultations and requests for professional services from physicians employed by
CCPN, as well as from other physicians with whom CCPN has contractual
relationships for the provision of medical services;
(b) keep and maintain (or cause to be kept and maintained) in appropriate media and
locations designated by CCPN, and attend to, propriate records, reports, clairns,
correspondence and documentation relating to all examinations, procedures and
other professional services rendered by Physician hereunder, including without
limitation, information on services performed and financial information generated
therefrom, all in accordance with CCPN’s written policies and procedures relating
to medical records, claims preparation and utilization management;
© to a reasonable extent, attend professional conventions and post-graduate seminars
and participate in professional societies and medical education in conjunction
with the covenants and agreements contained herein, and do all things reasonably
desirable to maintain and improve Physician’s professional skills;
@ be and remain duly licensed by the State of Texas to practice medicine without
restriction, and comply with, be controlled and governed by, and otherwise
perform services hereunder in accordance with, applicable law and the ethics and
standards of care of the medical community or communities in which Physician
shall from time to time provide services;
() actively participate in provision of patient care at any hospital designated by
CCPN;
@® interview, examine, and provide medical services and treatment to patients of
CCPN;
(8) promote, to the extent permitted by law and the applicable canons of medical
ethics, the professional practice of CCPN as requested by CCPN; and
(h) devote such time as may be reasonably necessary to cooperate with the efforts of the
Board in the management and governance of CCPN’s business, including but not
limited to, supervision of medical support personnel, business development
efforts, and other voluntary participation in Board committees and
subcommittees, with CCPN’s support and cooperation.
1.3 Professional Judgment. The Board is responsible to direct, contro] and supervise the
duties and work of the Physician and establish fees for services. However, neither CCPN
nor the Board or officers of CCPN will impose employment duties or constraints of any
kind that would require the Physician to infringe upon the ethics of the medical
profession, violate any law, or differ materially and adversely from those placed on any
of CCPN’s other employed physicians. CCPN and the Physician acknowledge that the
decisions regarding the diagnosis and treatment of patients are the province of a
physician and, therefore, all such decisions will be the responsibility of the Physician to
be rendered in accordance with the standards of medical practice in the community. The
Physician also agrees to be courteous and respectful of the rights and dignity of patients
with which the Physician shall come into contact and to work cooperatively with the
other physicians and administrative staff of CCPN.
14 Fees
for Services. CCPN will determine the fees to be charged by CCPN for the
professional services rendered by Physician; provided, however, that such fee schedule
(a) is subject to review by the Board of Directors, and (b) will be consistent with fee
schedules used by CCPN in connection with its other employed physicians. Except for
activities outside the course and scope of employment hereunder which are agreed to in
writing, all medical services and other professional services performed by the Physician
for any remuneration are services performed as an employee of CCPN and, therefore, all
revenues from such services shall be the property of CCPN and CCPN shall be wholly
entitled to bill, collect and retain all such revenues.
15 Policies and Procedures. Physician agrees to comply with all written policies, procedures
and protocols of CCPN and Cook Children’s Health Care System (“System”).
1.6 Risk Management. Physician agrees to notify the Board of Directors or President of
CCPN immediately upon receipt of notice of a potential professional liability claim or
investigation by a licensing or government agency against Physician, CCPN, or any other
physician employed by CCPN. Physician further agrees to participate in and abide by the
risk management written policies and procedures of CCPN as may be from time to time
established by the Board of Directors.
17 Physician agrees to participate in and comply with any
managed care and other third-party payor contracts entered into by CCPN.
18 Utilization Managemen/Quality Improvement. Physician agrees to participate in, and
cooperate with other physicians and the administrative staff of CCPN in connection with,
the development and implementation of utilization management and quality improvement
programs as may be from time to time established by the Board of Directors. Physician
shall also be subject to and participate in any utilization management and/or quality
improvement program developed by or on behalf of CCPN in connection with services
CCPN offers to its patients and the patients of any managed care plan in which CCPN or
Physician is a participating provider.
19 Trade
Secrets
of Others. Physician warrants that the terms of this Agreement and
Physician’s employment by CCPN do not and will not breach any agreement to keep in
confidence proprietary information, knowledge or data acquired by Physician in
confidence or in trust prior to employment with CCPN, and Physician will not disclose to
CCPN, or induce CCPN to use, any confidential or proprietary information, knowledge
or data belonging to any previous employer or other person.
1.10 Discrimination. Physician shall not refuse to see any patierit assigned to Physician
because of race, color, national origin, ancestry, religion, sex, marital status, sexual
orientation, or mental or physical disability. Physician shall not refuse to see any patient
assigned by CCPN because of the source of payment for services rendered by the
Physician ot because the patient is or is not employed by any particular employer or is or
is not amember of any particular insurance plan or health maintenance organization.
1d Standard of Professional Care. Physician shall render all medical services in a manner
consistent with the standard of care in the community and rules of conduct generally
expected of a member of the medical profession. Physician agrees to maintain and
improve Physician’s professional skills as may be appropriate and reasonable. Physician
shall comply with CCPN’s written policies regarding licensure, board certification and
professional staff privileges as from time to time in effect. Physician shall promptly
inform CCPN of any restriction, limitation or modification of the Physician’s license,
certification, credentials, professional staff privileges or ability to render medical services
arising during the term of this Agreement.
1.12 Credentialing. Physician agrees to participate in and abide by all credentialing and
recredentialing policies, procedures and protocols from time to time adopted by CCPN
Physician further agrees to cooperate with and provide any information reasonably
requested by CCPN’s Credentials Committee (or equivalent committee). CCPN’s
credentialing procedures include, in part, review of Physician’s utilization of health care
resources, the physician staffing requirements of CCPN and the quality of patient care
rendered by Physician,
1.13 Coding Competency. Physician shall complete a coding in-service presented by the
Intemal Audit/Compliance Department of System prior to rendering any services to
patients as part of Physician’s orientation process, and shall at all times comply with
CCPN’s Coding Competency and Assessment Improvement Process.
1.14 Human Subject Research. All human subject research within System must be presented
to and approved by the System’s Institutional Review Board (“IRB”) prior to the
commencement of any human subject research pursuant to CCHCS Policy AD150,
entitled “Institutional Review of Human Subject Research ~ Institutional Review Board.”
It is the policy of System to require compliance with federal law pertaining to
institutional review of human subjects research as promulgated at 45 CFR Part 46 (1990)
and 21 CFR Parts 50 and 56 (1990). Institutional review of human subject research is
deemed to include any such research conducted at or under the auspices of any System
ntity regardless of whether or not it is funded or regulated by any government agency.
Any staff member or other authorized person (for example, a nursing student under the
sponsorship of a staff member) who requires IRB review must initiate the process by
contacting the Research Administration Office for information regarding procedures and
meeting schedules.
ARTICLE IL
DUTIES OF EMPLOYER
24 Eaceilities
and Equipment. CCPN shall furnish for use by Physician in the conduct of
Physician’s duties hereunder adequate office space, equipment, and supplies as CCPN
considers necessary and appropriate to cfficiently conduct the business and medical
practice aspects of CCPN’s operations.
2.2 Non-Physician Personnel. CCPN shall be responsible for the selection, retention, and
discharge of non-physician personnel, and shall place and monitor such personnel as it
considers necessary to support and conduct efficiently the business and medical practice
aspects of its operations. Non-physician personnel will assist in the preparation,
distribution, and maintenance of patient care documentation and professional
correspondence, and, consistent with the training, skills, experience and licensure of such
personnel, reasonably support the employed physicians of CCPN in furtherance of the
duties of employment, including duties relating to participation in professional societies
23 ilfing, Collection and Related Administrative Functions. CCPN shall perform or cause
to be performed all billing and collection functions, and non-physician personnel shall
schedule and post patient care activities.
2.4 Monitoring
of Inpatient Initiatives. CCPN will communicate and represent the views and
objectives of its employed physicians, as expressed by the Board of Directors, to
hospitals in furtherance of efforts to secure ample and appropriate in-patient facilities
such as operative space, regular care beds, and intensive care beds, as well as diagnostic
services for patients.
25 Professional Liability Insurance. If Physician is being paid a fixed salary under
CCPN’s Physician Compensation Plan or under a departmental compensation plan
providing for compensation based on any model other than the Percent of Collections
Procedure or the Collections minus Expenses Procedure, CCPN shall arrange and pay for
professional liability insurance covering Physician’s professional services undertaken
within the course and scope of employment under this Agreement, in coverage amounts
and with the terms determined by CCPN. If Physician is being paid under either the
Percent of Collections Procedure or the Collections minus Expenses Procedure described
in CCPN’s Physician Compensation Plan (or ever transitions to one of those payment
models), then professional liability insurance will be included as a practice expense under
the Physician Compensation Plan described in Section 3.2 below. Such insurance will
include prepaid tail coverage. CCPN’s duties hereunder are subject to Physician’s claims
history and insurability under existing market conditions; CCPN does not represent or
warrant that Physician is, or will remain, insurable. As a precondition to employment,
Physician must provide CCPN with proof of tail coverage providing liability insurance
coverage for all medical services rendered by Physician prior to Physician’s Employment
Commencement Date and is responsible for all costs related thereto.
CCPN shall notify Physician of any significant changes to CCPN’s professional
liability coverage as they relate to Physician. CCPN’s obligation to maintain professional
liability coverage will cease immediately upon the termination of Physician’s
employment. Any rebate of premium resulting from cancellation of such coverage shall
be retained by CCPN. Physician hereby acknowledges that immediately upon the
termination of this Agreement, Physician will not be covered by professional liabitity
insurance by CCPN and is solely responsible for obtaining any professional liability
insurance coverage from that time forward.
ARTICLE Il
COMPENSATION/PROFESSIONAL FEES
31 Generally. During the term of this Agreement, CCPN shall pay Physician, and Physician
agrecs to accept from CCPN in full payment for the services of Physician hereunder, the
benefits and cash compensation determined and paid in accordance with CCPN’s
Physician Compensation Plan, as approved by the System Compensation Committee (the
“Compensation Committee”), as amended from time to time (the “Plan”). Physician’s
compensation hereunder will be paid in accordance with CCPN’s regular payroll process,
written policies and procedures, and shall be subject to deductions for Federal Income
Tax, Social Security Insurance Contributions (FICA), and other withholds and payroll
deductions required by law, elected by Physician, or customary to the operations of
CCPN, including, but not limited to, any deductions for management fees or other
administrative fees required under the Plan. Physician acknowledges that the Plan is
administered by or under the authority of the Compensation Committee, and may be
modified or amended from time to time as it relates to Physician and other similarly
situated physician employees of CCPN, including without limitation as necessary to
maintain compliance with the federal physician anti-self-referral laws commonly known
as the “Stark” laws. CCPN shall maintain a copy of the Plan on file at its principal place
of business, and the Plan shall be available for inspection by Physician at any time during
CCPN’s normal business hours.
3.2 Compensation. Beginning on the Employment Commencement Date and continuing
through the location change of the Nephrology Clinic, Physician will be paid under the
Fixed Salary procedure defined in the Plan. Under the Plan, Physician shall be paid a
base salary (the “Base Salary”) at a rate of $4,423 per weekend of coverage provided at
the CCPN Fort Worth Nephrology Clinic and $980 per day of clinic held at the CCPN
Fort Worth Nephrology Clinic. Upon transition to the new Prosper Nephrology Clinic
location, Physician will transition to a full-time employee and will be paid a Base Salary
at an annualized rate of $230,000. Physician will be paid following routine payroll
timelines of CCPN.
3.2-1 Sign On Bonus. In addition to the compensation described in Section 3.2
above. Physician shal! receive a sign-on bonus in an amount equal to $10,000,
which shall be payable to Physician upon receipt by CCPN of a fully executed
copy of this Agreement. In the event Physician does not commence work at
CCPN as required by this Agreement or if Physician commences employment but
the Agreement is terminated prior to the second anniversary of the Employment
Commencement Date for any reason other than by Physician pursuant to Section
ee
4.2(@), 4.2(0), 4.2(p), or 4.2(q) below, Physician shall be required to repay CCPN
a pro-rata portion of any amount previously paid to Physician as a sign-on bonus.
If such repayment obligation arises, Physician authorizes CCPN to deduct the
appropriate pro-rata amount from any paychecks that may be issued to Physician
after either party gives notice regarding the termination of this Agreement. Any
amount remaining unpaid after the issuance of Physician’s final paycheck shall be
repaid to CCPN within thirty (30) days of Physician’s last day of employment.
Physician understands that this sign-on bonus is considered by the IRS to be
wages; therefore the amounts will be included on Physician’s W-2 form and the
amounts will be subject to required payroll withholdings.
3.2-2 Contingent Bonus. In addition to the compensation described in Sections 3.2
and 3.2-1 above, Physician shall be eligible for a bonus equal to any amounts
Physician actually pays during the Primary Term to fulfill any obligations arising
pursuant to any recruitment agreement with HCA or any of its affiliated hospitals,
provided, however, that in no event will the bonus paid by CCPN to Physician
exceed $50,600. Physician understands that any bonus will be considered by the
IRS to be wages; therefore the amounts will be included on Physician’s W-2 form
and the amounts will be subject to required payroll withholdings. Physician
recognizes that this provision does not guarantee or ensure payment of a bonus to
Physician, but any such bonus that does become due will be paid on the next
regularly scheduled payday after Physician notifies CCPN and provides sufficient
evidence that she has made a payment to HCA, provided such notice occurs
during the Primary Term.
3.3 Partial Pay Periods and Payments Following ‘Termination of Employment. In the event
of any partial pay period(s), Physician’s compensation will be prorated based on the
annualized rate of such compensation as then in effect. If employment terminates and a
final reconciliation reveals overpayment by CCPN, Physician shall repay all overpaid
amounts within thirty (30) business days after receiving written documentation
reasonably setting forth the method of calculation and smount of such overpayment.
CCPN shall be entitled to withhold from or offset against any amounts duc from CCPN
to Physician any and all overpayments of cash or other compensation paid by CCPN to
Physician. In the event a final reconciliation reveals any underpayment by CCPN, CCPN.
shall, subject to the preceding sentence relating to offset, pay all underpaid amounts to
Physician within thirty (30) days following termination of employment.
34 Professiona! Fees. Physician acknowledges that CCPN is entitled to bill for, collect and
retain all fees and other amounts generated by Physician in connection with the
performance of services hereunder, and all such fees and amounts will be and remain the
property of CCPN. Physician expressly and irrevocably transfers, assigns, and otherwise
conveys to CCPN all right, title and interest of Physician in and to all such fees and
amounts, whetber in cash, goods, or other items of value, resulting from or incident to
performance of services by Physician under this Agreement, and Physician hereby
appoints CCPN as Physician’s limited attorney in fact for collection of the same or
otherwise enforcing Physician’s interest therein. In the event Physician receives directly
any amounts in consideration of services performed hereunder, Physician shall
immediately pay over such amounts to CCPN.
3.5 Outside Activities. Physician shall be entitled to retain any fees or other compensation
received as honoraria or for rendering services as an expert witness in a lawsuit involving
a personal injury or related matter, if not related to Physician’s employment by CCPN;
provided, however, that Physician will not engage in any outside activity that CCPN at
any time reasonably determines may interfere with performance of Physician’s duties
under this Agreement.
3.6 Limited
Authorization
for Wage Deductions. By executing this Agreement, Physician
authorizes CCPN to withhold from any future wage payments any amounts that may be
assessed against Physician under CCPN’s Chart Closure Policy (DR-712) based on
Physician’s failure to close charts in a timely fashion.
ARTICLE IV
TERM AND TERMINATION
41 Term of Employment. The Primary Term (herein so called) of this Agreement shall
begin on the Employment Commencement Date and end on January 19, 2022, unless
sooner tertninated as provided herein. The term of is Agreement shall be automatically
renewed, without any further action by CCPN or Physician, for successive one-year terms
(each a “Renewal Term”) following the expiration of such Primary Tem, unless earlier
terminated in accordance with this Agreement. If cither party desires to terminate
Physician's employment under this Agreement at the end of the Primary Term or at the
end of any Renewal Term, such party shall give written notice of such desire at least
ninety (90) days prior to the expiration of the Primary or Renewal Term then in effect,
and at the expiration of the then-current term, this Agreement shall terminate.
42 ‘Temnination
of Agreement. Subject to the Physician’s rights of due process provided in
Section 4.4 below, this Agreement may be terminated by notice in writing prior to the
expiration of the Primary Term or any Renewal Term under any of the following
circumstances:
@) Immediately, by CCPN, upon the death of Physician without the necessity of
notice by CCPN;
(b) Immediately, by CCPN or Physician, (i) if Physician suffers a disability and is
unable to perform any one or more of the essential functions of Physician's duties
hereunder with reasonable accommodation for a period in excess of ninety (90)
calendar days (or such other period of time subsequently established in a uniform
disability policy adopted by CCPN; or (ii) for Physician’s recurring absence, other
than for illness or disability;
(©) Immediately, by CCPN, upon suspension, limitation, revocation, cancellation or
restriction of Physician's liceuse to practice medicine in the State of Texas or
authorization to prescribe controlled substances;
(d) Immediately, by CCPN or Physician, upon a material breach of this Agreement or
refusal to faithfully and diligently comply with the provisions of this Agreement
by the other party;
(©) Immediately, by CCPN, upon the imposition (for any reason other than the
Physician’s failure to complete medical records) of any suspension, restriction or
limitations by any hospital or governmental authority to such an extent that the
Physician cannot perform the medical services required under this Agreement or
the Physician’s complete loss of medical or professional staff privileges at any
hospital;
Immediately, after determination by a majority of CCPN's Executive Committee
(following an opportunity by Physician to respond to or rebut charges) that
Physician engaged in conduct amounting to fraud, dishonesty, gross negligence,
willful misconduct or conduct that is unprofessional, unethical or detrimental to
the reputation, character and standing of CCPN or its physicians, or that Physician
failed after warning to work cooperatively with the professional or administrative
staff of CCPN or Cook Children’s Medical Center. (Physician may be suspended
from the right to see patients by the President of CCPN or Executive Committee
during any investigation of such conduct and during any subsequent hearing
process);
(g) Immediately, by CCPN, upon the Physician’s failure or refusal lo comply with the
reasonable written policies, standards, and regulations, including but not limited
to, quality improvement and credentialing written policies of CCPN, which from
time to time may be established by the Board or Executive Committee of CCPN;
wy tuUILULAIeAy, UY COLIN, LL ALY SIUM UCLUIUSS ULUISUaUAL WUE Lue pr uacuuavinee
liability coverage obtained pursuant to this Agreement (except by reason of the
general refusal of insurers to provide such coverage to physicians in Texas);
@ At any time, by mutual written consent of the parties;
@ Immediately, by CCPN, upon Physician’s conviction of a felony or a crime
involving moral turpitude;
&) Immediately, by CCPN, upon Physician’s use of alcohol or a controlled substance
which materially impairs the ability of Physician to effectively perform the
Physician’s duties and obligations under this Agreement;
@ Immediately, after determination by a majority of CCPN’s Executive Committee
(following an opportunity by Physician to respond to or rebut charges) that the
Physician is not providing adequate patient care or that the health, safety or
welfare of patients is jeopardized by continuing the employment of Physician
(Physician may be suspended from the right to see patients by the President of
CCPN or Executive Committee during any investigation of such conduct and
during any subsequent hearing process);
(m) Immediately, by CCPN, if any of the representations of Physician in the
interview, pre-employment application process of CCPN (or its designec),
credentialing process of CCHCS, or in this Agreement are determined by CCPN
to be false or incorrect when made or hereafter become false or incorrect or any
warranty of Physician is breached;
@) Immediately, by CCPN, if Physician fails to obtain (or maintain if required by
CCMC or CCPN policy) board certification in Physician’s primary area of
practice within the time period specified by the Board of CCPN;
©) Immediately, by Physician, upon CCPN’s failure to timely pay Physician the
compensation due under this Agreement on the scheduled payment dates;
©) Immediately, by Physician, upon CCPN’s or its member’s dissolution or cessation.
of operations;
(q) Immediately, by Physician, upon CCPN’s or its member’s exclusion from
participation in the Medicare or Medicaid programs; or
(r) Immediately, by CCPN, upon Physician's ceasing to be a member in good standing
of Cook Children’s Medical Center Professional Staff.
4.3 Voluntary Termination. During any Renewal Term, either party shall have the right to
terminate this Agreement without cause at any time upon ninety (90) days” prior written
notice
Preview
FILED 3/1/2021 12:00 AM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS Margaret Thomas DEPUTY No. DC-20-03255 DR CELINA DENISE CEPEDA ) IN THE DISTRICT COURT ) PLAINTIFF V. ) 1628” JUDICIAL DISTRICT ) ALBERT HAINE QUAN, M.D.P.A. ) DEFENDANT ) DALLAS COUNTY, TEXAS PLAINTIFF’S REPLY ON HER MOTION AND BRIEF FOR PARTIAL SUMMARY JUDGMENT ON LIABILITY AND PLAINTIFF’S OBJECTION TO ORAL TESTIMONAY IN CONTRAVENTION OF THE CONTRACT PROCEDURE TO MODIFY TO THE HONORABLE JUDGE OF SAID COURT: Plaintiff Dr. Celina Denise Cepeda files this Reply on her Motion for Partial Summary Judgment on liability and in support thereof shows the Court as follows. SUMMARY OF PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT Plaintiff is entitled to summary judgment on liability because Defendant terminated Plaintiff's employment with Defendant without giving her 90-days written notice of termination required by contract resulting in $40,000.00 in damages. Plaintiffs resignation after her termination was not a notice to terminate the contract, (2) she had already been terminated by in violation of the contract, and (3) did not waive any rights under the contract. UNDISPUTED FACTS While Defendant’s Brief (paragraph 4) states there is “controverting” evidence in the form of a Declaration, it does not specify any facts which are controverted. The following facts are undisputed: 1 The executed written contract (Section 5.2) provides it may be terminated only by ninety (90) days written notice of intent to terminate with such termination to be effective upon the expiration of the ninety-day period after notice The executed written contract (Section 7.4) provides that no other agreement, statements, or promise not contained in this Agreement shall be valid or binding. There are no writings by either party giving ninety days written notice that the contract between them is terminated. Defendant’s November 1, 2019 letter to Plaintiff terminating Plaintiff cautions Plaintiff of her obligations “” Per the existing Employment Agreement” and continues to advise Plaintiff she will get her final paycheck (after certain notifications about billing), that she leave her office keys and office laptop on her desk, she should return her parking card to security and notifies her the medical staffing office has been notified she was leaving the medical staff at Medical City Dallas. In Plaintiff's resignation after her termination which was submitted at the request of Defendant there is no mention of the written contract, no indication she was not continuing to work during the 90-day notice period. To the contrary, Plaintiff advised she intended to work during the 90-day termination period and was ready, willing, and able to work during this period. 7. Defendant did not employ Plaintiff or pay Plaintiff wages for the 90-day period after his November 1, 2019 letter to her. Plaintiff did not obtain alternative employment until January 13, 2020. (See Declaration of Celina Denise Cepeda with exhibits indicating an offer letter for Cook Children’s Hospital was sent to her on November 21, 2019, a contract signed on December 23, 2019, and notification on December 30, 2019 that her effective employment date would be January 13 (2020). This Declaration is incorporated herein for all purposes. PLAINTIFF’S TERMINATION IN VIOLATION OF CONTRACT EFFECTIVE WHEN SHE WAS TERMINATED NOVEMBER 1 The undisputed fact is that Defendant terminated Plaintiffs employment in writing on November 1 without giving 90 days written notice required by the written contract. The Dallas Court of Appeals holds when an employment contract requires a certain period of notice, the employment may be canceled on shorter notice or upon none at all if the employee is paid wages or salary for the specified notice period. Cushman and Wakefield, Inc. y. Fletcher, 915 S.W.2d 538, 545 (Tex.App. — Dallas 1995) (citing Hussong v Schwan’s Sales Enters., Inc., 896 S.W.2d 320, 326 (Tex.App. — Houston [1* Dist.] 1995, no writ). See also Stolz v Wells, 43 S.W.2d 163 (Tex.Civ.App. Beaumont, 1931). RESIGNATION WAS NOT A WAIVER OF THE 90 DAY NOTICE REQUIRED BY THE CONTRACT Defendant asserts Plaintiff resigned her employment (after her termination) and thereby waived any rights to the 90 days written notice. The only way to terminate the contract is by the terms of the contract which requires 90 days written notice of intent to terminate the contract. Nowhere in Plaintiff's resignation requested by Defendant is there any reference giving 90 days’ notice required by the contract/ There is no reference that she did not intend to be employed during the written notice period nor that she was waiving her right to work during the written notice period. Also, Plaintiff notes as of her resignation she had already been excluded from the workplace by Defendant’s letter four days earlier — she was instructed to return her office keys, office laptop, parking card, advised that Defendant notified Medical City staffing she was no longer on staff and advised how to get her final paycheck. Defendant had already violated the contract by terminating her without giving her 90 days written notice and excluding her from the workplace. It is noteworthy Plaintiff was working to obtain alternative employment but was not able to obtain effective employment until January 13, 2020. She did not sign a contract for employment until December 23 and did not began work until January 13. Her Declaration states she was ready, willing, and able to work after November 1 but was excluded from the workplace by Defendant. PAROLE EVIDENCE RULE Defendant cites two cases arguing the parole evidence rule is inapplicable citing authority that the rule does not bar evidence of modification or a new agreement or that the existing written contract has been changed, waived, or abrogated in whole or in part. Defendant’s two cases are inapposite since neither case deals with a situation where the contract by its terms requires written notice of termination. Parole evidence cannot be considered by the court when it construes such contracts, even if the evidence is admitted without objection. Johnson y Driver, 198 S.W.3d 359 (Tex. App. — Tyler 2006, no pet). Plaintiff objects to the admission of any testimony which contrives the written terms of the contract. The best and only evidence regarding Plaintiff's termination is Defendant’s November 1 written notice termination letter which refers to the contract, does not give 90 days’ written notice, and excludes Plaintiff from the workplace as of November 1. MARY Defendant breached the contract by terminating Plaintiff's employment immediately on November 1, 2019 without giving Plaintiff 90 days written notice of her termination or pay in lieu of notice. The only written notice Defendant gave Plaintiff is a letter dated November 1, 2019 requiring her to turn in her keys, laptop and parking permit and advising how she would receive her final paycheck. Plaintiff's resignation after her termination did not waive her entitlement to 90 days written notice of termination of the contract and therefore, she is entitled to 90 days pay in lieu of notice. CONCLUSION AND PRAYER For the foregoing reasons, Plaintiff prays Plaintiff's Motion for Partial Summary Judgment on liability be granted Respectffilly sf aut William M. Lamoreaux 900 Jackson Street Suite 180 Dallas, TX 75202 Tel 214/747-2012 Fax 214/747-3212 TBA No. 11852800 Attorney for Plaintiff Dr. Celina Denise Cepeda CERTIFICATE OF SERVICE I certify that on February 27, 2021a true copy of Plaintiff's Reply on Her Motion for Partial Summary Judgment and Objection to Evidence in Contravention of the Contract was served on Defendant’s counsel of record M. Drew Siegel by electronic service through the Court’s service provider and by email. , ) . dL William Morris Lamoreaux Attorney for Dr. Celina Denise Cepeda E-mail: blamlaw@gmail.com No. DC-20-03255 DR CELINA DENISE CEPEDA ) IN THE DISTRICT COURT PLAINTIFF v. 162" JUDICIAL DISTRICT ALBERT HAINE QUAN, M.D.P.A. DEFENDANT ) DALLAS COUNTY, TEXAS SUPPLEMENTAL DECLARATION OF DR. CELINA DENISE CEPEDA "My name is Celina Denise Cepeda, I am over the age of 18 years and my address is 1400 Hi Line Drive #1115, Dallas, Texas 75207. “On October 31, 2019 I had communications with Cook Children’s Org. about employment. See Exhibit C attached. “On November 21, 2019, Cook Children’s Org. sent me a letter offering me employment’ See Exhibit C attached. “On December 23, 2019 I signed a Physician Employment Agreement with Cook Children’s Medical Center”. See Exhibit D attached being the first page of a lengthy Employment Agreement between me and Cook Children’s Physician Network. “On December 30, 2019 Cook Children’s Org. notified me my effective date of employment would be January 13 (2020).: See Exhibit E attached. “My first and only employment after being terminated by Albert Haine Quan M.D.P.A. was with Cook Children’s Physician Network and began on January 13, 2020. “I wanted to remain employed by Defendant until I officially began my employment with Cook Children’s Physician Network. I was ready, willing, and able to work and advised Dr. Quan. that I was entitled to work during the 90-day notice period specified in the contract. “My name is Celina Denise Cepeda. My date of birth is March 6, 1983 and my address is 1400 Hi Line Drive #1115, Dallas, Texas 75207. I declare under penalty of perjury that the foregoing is true and correct. Executed in Dallas County, State of Texas, on the as ay February 2021. h(t ‘t, Celina Denise Cepeda, Declarant. 6/25/2020 Gmail - SECURE - Offer Letter M1 Gmail Celina Cepeda SECURE -Offer Letter ss a Se mes <== Teia Goleman Thu, Nov 21, 2019 at 4:46 PM To: Celina Cepeda Cc: Chloe Renz , Debbie Brimer Hello Dr. Cepeda, We are very excited that you may join the Cook Children's team! Your offer letter has been sent by FedEx to your attention at 1400 Hi Line Drive, Apt. 115, Dallas, TX 75207, tracking number 777053224132, with no signature required for delivery. You should receive it tomorrow, November 22, 2019. You will receive two offer letters signed by Robert Goodwill, Sr. Vice President of Cook Children’s Physician Network. Please sign and return one letter in the enclosed FedEx envelope and keep the other for your records. You may drop the envelope in any FedEx box/store that is convenient for you. Once we receive your signed offer letter, we will proceed with your physician employment agreement. | have attached a PDF copy of the letter for you to begin looking over. To expedite the process, Mr. Goodwill has asked that you print the attached PDF, sign it and scan it back to us at your earliest convenience. Please let us know if you have any questions. Thank you, Teia Coleman Physician Recruitment Coordinator Cook Children's Physician Network 682-885-3662 Phone 682-885-2106 Fax Teja, Coleman@cookchildrens.org %, SecureCook Encrypted Message Our Promise Knowing that every child's life is sacred, it is the promise of Cook Children’s to improve the health of every child in our region through the prevention snd treatment of Cook children's illness, disease, and injury. Brh bee https:/fmail google com/mail/v07ik=c2d996928 1 &view=piSscarch=all&permmsgid=msg-%3A 1 65085329923335729 | &simpl=insg-£H3A 1650853299233357291 2 6/25/2020 Gmail - SECURE - Offer Letter SecureCook Encrypted Message SecureCook Encrypted Message 2 — 7 ‘Cepeda, Celina, MD - Offer Letter Signed by Robert Goodwill.pdf 154K https://mail.google.com/mail/u/0%k=c2d996928 1 & view=pt&search=all &permmsgid=msg-£%3A 165085329923335729 &simpl=msg-£%3A 1650853299233357291 22 PHYSICLAN EMPLOYMENT AGREEMENT [Cexia Cereps, M.D. — NerHroLocy] ‘THIS PHYSICIAN EMPLOYMENT AGREEMENT (this “Agreement") is made and entered into this 23 day of peCdnnber, 20119 (the "Effective Date"), by and between Cook Children's Physician Network, a Texas non-profit corporation ("CCPN"), and Celina Cepeda, MD. ("Physician"), for employment commencing January 13, 2020 (the “Employment Commencement Date”), subject to and contingent upon satisfaction by Physician of all credentialing requirements of CCPN and Cook Children’s Medical Center (“CCMC”) and the other requirements of and preconditions to employment set forth in this Agreement. If Physician fails to meet oredentialing requirements of Article IX of this Agreement by January 1, 2020, or fails to commence employment on the Employment Commencement Date, this Agreement shall be null and void and neither party shall owe any obligation to the other. WITNESSETH: WHEREAS, CCPN is certified by the Texas Medical Board as a non-profit health corporation described in Section 162 of the Texas Occupations Code; WHEREAS, CCPN is a multispecialty physician organization that provides professional pediatric services and services incident thereto through its employees who are duly licensed to practice medicine in the State of Texas; WHEREAS, Physician is a physician specializing in pediatric nephrology and is licensed to practice medicine in the State of Texas; and WHEREAS, CCPN hereby agrees to employ Physician, and Physician hereby accepts such employment, all on the terms, covenants, and conditions set forth in this Agreement. NOW, THEREFORE, for and in consideration of the mutual covenants and conditions set forth below, CCPN and Physician covenant and agree as follows: ARTICLE [ EMPLOYMENT AND DUTIES 11 Employment of Physician. Subject to the terms and conditions of this Agreement, CCPN employs Physician as a PRN employee of CCPN who will transition to full-time status on the as yet undetermined date when the CCPN Nephrology Clinic opens in Prosper, and Physician accepts employment with CCPN on that basis. As such, Physician agrees to devote Physician’s full professional time, attention, and energies as reasonably necessary to perform all professional services and administrative duties assigned or delegated to Physician by the CCPN Board of Directors (“Board” or “Board of Directors”) and/or President of CCPN in accordance with applicable State and Federal laws and statutes and applicable canons of professional ethics and shall not, during the term of this Agreement, practice medicine except as an employee of CCPN. Physician agrees to devote such time and provide such services within the scope of Physician’s license as is necessary to meet the medical needs of the patients of CCPN and Physician’s professional and administrative obligations, consistent with the written policies and procedures of CCPN as determined and implemented from time to time. Physician’s services shall initially be rendered at CCPN’s Nephrology Clinic, located at 1500 S. Cooper Street, Fort Worth, Texas, 76104 (the “Primary Office”) until an as yet undetermined date when Physician’s services will thereafter be rendered at the new location of the CCPN Nephrology Clinic PX IRIT dD in Prosper (which will at that point become the “Primary Office”), or at such other location as CCPN may designate from time to time. 12 General Duties of Physician. As a part of the day-to-day performance of services hereunder, Physician agrees to: (a) provide “on-duty” and “on-call” services in cooperation with CCPN and its other physician employees; Physician acknowledges that coverage assignments are intended to provide the availability of an appropriately qualified physician to patients on a twenty-four (24) bours per day and seven (7) days per week basis; Physician shall not substitute another physician to serve in Physician’s place without CCPN’s prior approval; arrangements for coverage will be made under the guidance, direction and ultimate control of CCPN and will provide for after- hours, weekend and holiday coverage; Physician shall accept and receive consultations and requests for professional services from physicians employed by CCPN, as well as from other physicians with whom CCPN has contractual relationships for the provision of medical services; (b) keep and maintain (or cause to be kept and maintained) in appropriate media and locations designated by CCPN, and attend to, propriate records, reports, clairns, correspondence and documentation relating to all examinations, procedures and other professional services rendered by Physician hereunder, including without limitation, information on services performed and financial information generated therefrom, all in accordance with CCPN’s written policies and procedures relating to medical records, claims preparation and utilization management; © to a reasonable extent, attend professional conventions and post-graduate seminars and participate in professional societies and medical education in conjunction with the covenants and agreements contained herein, and do all things reasonably desirable to maintain and improve Physician’s professional skills; @ be and remain duly licensed by the State of Texas to practice medicine without restriction, and comply with, be controlled and governed by, and otherwise perform services hereunder in accordance with, applicable law and the ethics and standards of care of the medical community or communities in which Physician shall from time to time provide services; () actively participate in provision of patient care at any hospital designated by CCPN; @® interview, examine, and provide medical services and treatment to patients of CCPN; (8) promote, to the extent permitted by law and the applicable canons of medical ethics, the professional practice of CCPN as requested by CCPN; and (h) devote such time as may be reasonably necessary to cooperate with the efforts of the Board in the management and governance of CCPN’s business, including but not limited to, supervision of medical support personnel, business development efforts, and other voluntary participation in Board committees and subcommittees, with CCPN’s support and cooperation. 1.3 Professional Judgment. The Board is responsible to direct, contro] and supervise the duties and work of the Physician and establish fees for services. However, neither CCPN nor the Board or officers of CCPN will impose employment duties or constraints of any kind that would require the Physician to infringe upon the ethics of the medical profession, violate any law, or differ materially and adversely from those placed on any of CCPN’s other employed physicians. CCPN and the Physician acknowledge that the decisions regarding the diagnosis and treatment of patients are the province of a physician and, therefore, all such decisions will be the responsibility of the Physician to be rendered in accordance with the standards of medical practice in the community. The Physician also agrees to be courteous and respectful of the rights and dignity of patients with which the Physician shall come into contact and to work cooperatively with the other physicians and administrative staff of CCPN. 14 Fees for Services. CCPN will determine the fees to be charged by CCPN for the professional services rendered by Physician; provided, however, that such fee schedule (a) is subject to review by the Board of Directors, and (b) will be consistent with fee schedules used by CCPN in connection with its other employed physicians. Except for activities outside the course and scope of employment hereunder which are agreed to in writing, all medical services and other professional services performed by the Physician for any remuneration are services performed as an employee of CCPN and, therefore, all revenues from such services shall be the property of CCPN and CCPN shall be wholly entitled to bill, collect and retain all such revenues. 15 Policies and Procedures. Physician agrees to comply with all written policies, procedures and protocols of CCPN and Cook Children’s Health Care System (“System”). 1.6 Risk Management. Physician agrees to notify the Board of Directors or President of CCPN immediately upon receipt of notice of a potential professional liability claim or investigation by a licensing or government agency against Physician, CCPN, or any other physician employed by CCPN. Physician further agrees to participate in and abide by the risk management written policies and procedures of CCPN as may be from time to time established by the Board of Directors. 17 Physician agrees to participate in and comply with any managed care and other third-party payor contracts entered into by CCPN. 18 Utilization Managemen/Quality Improvement. Physician agrees to participate in, and cooperate with other physicians and the administrative staff of CCPN in connection with, the development and implementation of utilization management and quality improvement programs as may be from time to time established by the Board of Directors. Physician shall also be subject to and participate in any utilization management and/or quality improvement program developed by or on behalf of CCPN in connection with services CCPN offers to its patients and the patients of any managed care plan in which CCPN or Physician is a participating provider. 19 Trade Secrets of Others. Physician warrants that the terms of this Agreement and Physician’s employment by CCPN do not and will not breach any agreement to keep in confidence proprietary information, knowledge or data acquired by Physician in confidence or in trust prior to employment with CCPN, and Physician will not disclose to CCPN, or induce CCPN to use, any confidential or proprietary information, knowledge or data belonging to any previous employer or other person. 1.10 Discrimination. Physician shall not refuse to see any patierit assigned to Physician because of race, color, national origin, ancestry, religion, sex, marital status, sexual orientation, or mental or physical disability. Physician shall not refuse to see any patient assigned by CCPN because of the source of payment for services rendered by the Physician ot because the patient is or is not employed by any particular employer or is or is not amember of any particular insurance plan or health maintenance organization. 1d Standard of Professional Care. Physician shall render all medical services in a manner consistent with the standard of care in the community and rules of conduct generally expected of a member of the medical profession. Physician agrees to maintain and improve Physician’s professional skills as may be appropriate and reasonable. Physician shall comply with CCPN’s written policies regarding licensure, board certification and professional staff privileges as from time to time in effect. Physician shall promptly inform CCPN of any restriction, limitation or modification of the Physician’s license, certification, credentials, professional staff privileges or ability to render medical services arising during the term of this Agreement. 1.12 Credentialing. Physician agrees to participate in and abide by all credentialing and recredentialing policies, procedures and protocols from time to time adopted by CCPN Physician further agrees to cooperate with and provide any information reasonably requested by CCPN’s Credentials Committee (or equivalent committee). CCPN’s credentialing procedures include, in part, review of Physician’s utilization of health care resources, the physician staffing requirements of CCPN and the quality of patient care rendered by Physician, 1.13 Coding Competency. Physician shall complete a coding in-service presented by the Intemal Audit/Compliance Department of System prior to rendering any services to patients as part of Physician’s orientation process, and shall at all times comply with CCPN’s Coding Competency and Assessment Improvement Process. 1.14 Human Subject Research. All human subject research within System must be presented to and approved by the System’s Institutional Review Board (“IRB”) prior to the commencement of any human subject research pursuant to CCHCS Policy AD150, entitled “Institutional Review of Human Subject Research ~ Institutional Review Board.” It is the policy of System to require compliance with federal law pertaining to institutional review of human subjects research as promulgated at 45 CFR Part 46 (1990) and 21 CFR Parts 50 and 56 (1990). Institutional review of human subject research is deemed to include any such research conducted at or under the auspices of any System ntity regardless of whether or not it is funded or regulated by any government agency. Any staff member or other authorized person (for example, a nursing student under the sponsorship of a staff member) who requires IRB review must initiate the process by contacting the Research Administration Office for information regarding procedures and meeting schedules. ARTICLE IL DUTIES OF EMPLOYER 24 Eaceilities and Equipment. CCPN shall furnish for use by Physician in the conduct of Physician’s duties hereunder adequate office space, equipment, and supplies as CCPN considers necessary and appropriate to cfficiently conduct the business and medical practice aspects of CCPN’s operations. 2.2 Non-Physician Personnel. CCPN shall be responsible for the selection, retention, and discharge of non-physician personnel, and shall place and monitor such personnel as it considers necessary to support and conduct efficiently the business and medical practice aspects of its operations. Non-physician personnel will assist in the preparation, distribution, and maintenance of patient care documentation and professional correspondence, and, consistent with the training, skills, experience and licensure of such personnel, reasonably support the employed physicians of CCPN in furtherance of the duties of employment, including duties relating to participation in professional societies 23 ilfing, Collection and Related Administrative Functions. CCPN shall perform or cause to be performed all billing and collection functions, and non-physician personnel shall schedule and post patient care activities. 2.4 Monitoring of Inpatient Initiatives. CCPN will communicate and represent the views and objectives of its employed physicians, as expressed by the Board of Directors, to hospitals in furtherance of efforts to secure ample and appropriate in-patient facilities such as operative space, regular care beds, and intensive care beds, as well as diagnostic services for patients. 25 Professional Liability Insurance. If Physician is being paid a fixed salary under CCPN’s Physician Compensation Plan or under a departmental compensation plan providing for compensation based on any model other than the Percent of Collections Procedure or the Collections minus Expenses Procedure, CCPN shall arrange and pay for professional liability insurance covering Physician’s professional services undertaken within the course and scope of employment under this Agreement, in coverage amounts and with the terms determined by CCPN. If Physician is being paid under either the Percent of Collections Procedure or the Collections minus Expenses Procedure described in CCPN’s Physician Compensation Plan (or ever transitions to one of those payment models), then professional liability insurance will be included as a practice expense under the Physician Compensation Plan described in Section 3.2 below. Such insurance will include prepaid tail coverage. CCPN’s duties hereunder are subject to Physician’s claims history and insurability under existing market conditions; CCPN does not represent or warrant that Physician is, or will remain, insurable. As a precondition to employment, Physician must provide CCPN with proof of tail coverage providing liability insurance coverage for all medical services rendered by Physician prior to Physician’s Employment Commencement Date and is responsible for all costs related thereto. CCPN shall notify Physician of any significant changes to CCPN’s professional liability coverage as they relate to Physician. CCPN’s obligation to maintain professional liability coverage will cease immediately upon the termination of Physician’s employment. Any rebate of premium resulting from cancellation of such coverage shall be retained by CCPN. Physician hereby acknowledges that immediately upon the termination of this Agreement, Physician will not be covered by professional liabitity insurance by CCPN and is solely responsible for obtaining any professional liability insurance coverage from that time forward. ARTICLE Il COMPENSATION/PROFESSIONAL FEES 31 Generally. During the term of this Agreement, CCPN shall pay Physician, and Physician agrecs to accept from CCPN in full payment for the services of Physician hereunder, the benefits and cash compensation determined and paid in accordance with CCPN’s Physician Compensation Plan, as approved by the System Compensation Committee (the “Compensation Committee”), as amended from time to time (the “Plan”). Physician’s compensation hereunder will be paid in accordance with CCPN’s regular payroll process, written policies and procedures, and shall be subject to deductions for Federal Income Tax, Social Security Insurance Contributions (FICA), and other withholds and payroll deductions required by law, elected by Physician, or customary to the operations of CCPN, including, but not limited to, any deductions for management fees or other administrative fees required under the Plan. Physician acknowledges that the Plan is administered by or under the authority of the Compensation Committee, and may be modified or amended from time to time as it relates to Physician and other similarly situated physician employees of CCPN, including without limitation as necessary to maintain compliance with the federal physician anti-self-referral laws commonly known as the “Stark” laws. CCPN shall maintain a copy of the Plan on file at its principal place of business, and the Plan shall be available for inspection by Physician at any time during CCPN’s normal business hours. 3.2 Compensation. Beginning on the Employment Commencement Date and continuing through the location change of the Nephrology Clinic, Physician will be paid under the Fixed Salary procedure defined in the Plan. Under the Plan, Physician shall be paid a base salary (the “Base Salary”) at a rate of $4,423 per weekend of coverage provided at the CCPN Fort Worth Nephrology Clinic and $980 per day of clinic held at the CCPN Fort Worth Nephrology Clinic. Upon transition to the new Prosper Nephrology Clinic location, Physician will transition to a full-time employee and will be paid a Base Salary at an annualized rate of $230,000. Physician will be paid following routine payroll timelines of CCPN. 3.2-1 Sign On Bonus. In addition to the compensation described in Section 3.2 above. Physician shal! receive a sign-on bonus in an amount equal to $10,000, which shall be payable to Physician upon receipt by CCPN of a fully executed copy of this Agreement. In the event Physician does not commence work at CCPN as required by this Agreement or if Physician commences employment but the Agreement is terminated prior to the second anniversary of the Employment Commencement Date for any reason other than by Physician pursuant to Section ee 4.2(@), 4.2(0), 4.2(p), or 4.2(q) below, Physician shall be required to repay CCPN a pro-rata portion of any amount previously paid to Physician as a sign-on bonus. If such repayment obligation arises, Physician authorizes CCPN to deduct the appropriate pro-rata amount from any paychecks that may be issued to Physician after either party gives notice regarding the termination of this Agreement. Any amount remaining unpaid after the issuance of Physician’s final paycheck shall be repaid to CCPN within thirty (30) days of Physician’s last day of employment. Physician understands that this sign-on bonus is considered by the IRS to be wages; therefore the amounts will be included on Physician’s W-2 form and the amounts will be subject to required payroll withholdings. 3.2-2 Contingent Bonus. In addition to the compensation described in Sections 3.2 and 3.2-1 above, Physician shall be eligible for a bonus equal to any amounts Physician actually pays during the Primary Term to fulfill any obligations arising pursuant to any recruitment agreement with HCA or any of its affiliated hospitals, provided, however, that in no event will the bonus paid by CCPN to Physician exceed $50,600. Physician understands that any bonus will be considered by the IRS to be wages; therefore the amounts will be included on Physician’s W-2 form and the amounts will be subject to required payroll withholdings. Physician recognizes that this provision does not guarantee or ensure payment of a bonus to Physician, but any such bonus that does become due will be paid on the next regularly scheduled payday after Physician notifies CCPN and provides sufficient evidence that she has made a payment to HCA, provided such notice occurs during the Primary Term. 3.3 Partial Pay Periods and Payments Following ‘Termination of Employment. In the event of any partial pay period(s), Physician’s compensation will be prorated based on the annualized rate of such compensation as then in effect. If employment terminates and a final reconciliation reveals overpayment by CCPN, Physician shall repay all overpaid amounts within thirty (30) business days after receiving written documentation reasonably setting forth the method of calculation and smount of such overpayment. CCPN shall be entitled to withhold from or offset against any amounts duc from CCPN to Physician any and all overpayments of cash or other compensation paid by CCPN to Physician. In the event a final reconciliation reveals any underpayment by CCPN, CCPN. shall, subject to the preceding sentence relating to offset, pay all underpaid amounts to Physician within thirty (30) days following termination of employment. 34 Professiona! Fees. Physician acknowledges that CCPN is entitled to bill for, collect and retain all fees and other amounts generated by Physician in connection with the performance of services hereunder, and all such fees and amounts will be and remain the property of CCPN. Physician expressly and irrevocably transfers, assigns, and otherwise conveys to CCPN all right, title and interest of Physician in and to all such fees and amounts, whetber in cash, goods, or other items of value, resulting from or incident to performance of services by Physician under this Agreement, and Physician hereby appoints CCPN as Physician’s limited attorney in fact for collection of the same or otherwise enforcing Physician’s interest therein. In the event Physician receives directly any amounts in consideration of services performed hereunder, Physician shall immediately pay over such amounts to CCPN. 3.5 Outside Activities. Physician shall be entitled to retain any fees or other compensation received as honoraria or for rendering services as an expert witness in a lawsuit involving a personal injury or related matter, if not related to Physician’s employment by CCPN; provided, however, that Physician will not engage in any outside activity that CCPN at any time reasonably determines may interfere with performance of Physician’s duties under this Agreement. 3.6 Limited Authorization for Wage Deductions. By executing this Agreement, Physician authorizes CCPN to withhold from any future wage payments any amounts that may be assessed against Physician under CCPN’s Chart Closure Policy (DR-712) based on Physician’s failure to close charts in a timely fashion. ARTICLE IV TERM AND TERMINATION 41 Term of Employment. The Primary Term (herein so called) of this Agreement shall begin on the Employment Commencement Date and end on January 19, 2022, unless sooner tertninated as provided herein. The term of is Agreement shall be automatically renewed, without any further action by CCPN or Physician, for successive one-year terms (each a “Renewal Term”) following the expiration of such Primary Tem, unless earlier terminated in accordance with this Agreement. If cither party desires to terminate Physician's employment under this Agreement at the end of the Primary Term or at the end of any Renewal Term, such party shall give written notice of such desire at least ninety (90) days prior to the expiration of the Primary or Renewal Term then in effect, and at the expiration of the then-current term, this Agreement shall terminate. 42 ‘Temnination of Agreement. Subject to the Physician’s rights of due process provided in Section 4.4 below, this Agreement may be terminated by notice in writing prior to the expiration of the Primary Term or any Renewal Term under any of the following circumstances: @) Immediately, by CCPN, upon the death of Physician without the necessity of notice by CCPN; (b) Immediately, by CCPN or Physician, (i) if Physician suffers a disability and is unable to perform any one or more of the essential functions of Physician's duties hereunder with reasonable accommodation for a period in excess of ninety (90) calendar days (or such other period of time subsequently established in a uniform disability policy adopted by CCPN; or (ii) for Physician’s recurring absence, other than for illness or disability; (©) Immediately, by CCPN, upon suspension, limitation, revocation, cancellation or restriction of Physician's liceuse to practice medicine in the State of Texas or authorization to prescribe controlled substances; (d) Immediately, by CCPN or Physician, upon a material breach of this Agreement or refusal to faithfully and diligently comply with the provisions of this Agreement by the other party; (©) Immediately, by CCPN, upon the imposition (for any reason other than the Physician’s failure to complete medical records) of any suspension, restriction or limitations by any hospital or governmental authority to such an extent that the Physician cannot perform the medical services required under this Agreement or the Physician’s complete loss of medical or professional staff privileges at any hospital; Immediately, after determination by a majority of CCPN's Executive Committee (following an opportunity by Physician to respond to or rebut charges) that Physician engaged in conduct amounting to fraud, dishonesty, gross negligence, willful misconduct or conduct that is unprofessional, unethical or detrimental to the reputation, character and standing of CCPN or its physicians, or that Physician failed after warning to work cooperatively with the professional or administrative staff of CCPN or Cook Children’s Medical Center. (Physician may be suspended from the right to see patients by the President of CCPN or Executive Committee during any investigation of such conduct and during any subsequent hearing process); (g) Immediately, by CCPN, upon the Physician’s failure or refusal lo comply with the reasonable written policies, standards, and regulations, including but not limited to, quality improvement and credentialing written policies of CCPN, which from time to time may be established by the Board or Executive Committee of CCPN; wy tuUILULAIeAy, UY COLIN, LL ALY SIUM UCLUIUSS ULUISUaUAL WUE Lue pr uacuuavinee liability coverage obtained pursuant to this Agreement (except by reason of the general refusal of insurers to provide such coverage to physicians in Texas); @ At any time, by mutual written consent of the parties; @ Immediately, by CCPN, upon Physician’s conviction of a felony or a crime involving moral turpitude; &) Immediately, by CCPN, upon Physician’s use of alcohol or a controlled substance which materially impairs the ability of Physician to effectively perform the Physician’s duties and obligations under this Agreement; @ Immediately, after determination by a majority of CCPN’s Executive Committee (following an opportunity by Physician to respond to or rebut charges) that the Physician is not providing adequate patient care or that the health, safety or welfare of patients is jeopardized by continuing the employment of Physician (Physician may be suspended from the right to see patients by the President of CCPN or Executive Committee during any investigation of such conduct and during any subsequent hearing process); (m) Immediately, by CCPN, if any of the representations of Physician in the interview, pre-employment application process of CCPN (or its designec), credentialing process of CCHCS, or in this Agreement are determined by CCPN to be false or incorrect when made or hereafter become false or incorrect or any warranty of Physician is breached; @) Immediately, by CCPN, if Physician fails to obtain (or maintain if required by CCMC or CCPN policy) board certification in Physician’s primary area of practice within the time period specified by the Board of CCPN; ©) Immediately, by Physician, upon CCPN’s failure to timely pay Physician the compensation due under this Agreement on the scheduled payment dates; ©) Immediately, by Physician, upon CCPN’s or its member’s dissolution or cessation. of operations; (q) Immediately, by Physician, upon CCPN’s or its member’s exclusion from participation in the Medicare or Medicaid programs; or (r) Immediately, by CCPN, upon Physician's ceasing to be a member in good standing of Cook Children’s Medical Center Professional Staff. 4.3 Voluntary Termination. During any Renewal Term, either party shall have the right to terminate this Agreement without cause at any time upon ninety (90) days” prior written notice