June 24th, 2025
DO I NEED TO SEE DOCUMENTS REFERRED TO IN MY PHYSICAN EMPLOYMENT CONTRACT? by Jim W. Vogele
Introduction
For sake of discussion, let’s say an employer asks you to sign a California physician contract and the document refers to an arbitration agreement that is not included in the body of the contract or as an attachment. At what point in the process of executing your California physician employment contract should you see that policy? Would that agreement ultimately be enforceable if you had not seen it prior to executing the employment contract?
As another example, assume an employer has sent you an Oregon physician contract, and the contract refers to a compensation formula. Are you entitled to see that document before signing the employment agreement? This one may seem extremely obvious, but there are actually reasons why the prospective employer may not provide a copy, e.g. if the compensation formula in question will not apply to your employment until year 2 or 3 of your employment tenure (and the employer of course considers the formula to be a proprietary trade secret).
Or consider a Washington physician contract: should you be allowed to see a restrictive covenant document incorporated by reference in the body of your Washington physician employment contract? Short answer: yes.
And consider as a final example a Montana physician contract that refers to an Employee Handbook. Should you see this Handbook before signing the physician employment contract? Sure, albeit you may need to sign a letter of intent first, as, understandably, employers to not like to distribute company documents to folks who may or may not actually sign an employment agreement.
These and similar questions arise when I am conducting physician contract reviews and most but not all are easily answered. Obviously it is best to see all documents, policies, or handbooks referred to in your contract. But, frankly, practicality and common sense play a role here. The answer usually must be determined on a case-by-case basis. If a value/quality metrics potential bonus is capped at 3% of your total base compensation, must you see the complete details of such policy before signing the contract? It depends. You should always know the important terms of your agreement. But some terms are more important than others. And there are other approaches to gaining information you need in this particular example; indeed, rather than attempting to slog through what can often be complicated (if not cryptic) and verbose value/quality metrics, once you know the cap will be 3%, consider whether it may suffice to simply ask the employer or a future colleague: Do most physicians in my specialty or department typically receive the maximum quality metric bonus each year? Or part of it? None? Most often you will receive a straightforward response along the lines of “most do” or the like.
As always on this website, the discussion below is not legal advice. For specific questions regarding your physician employment contract, you should consult with a physician contract review attorney. However, in the event it may be helpful the discussion below introduces a few basic contract law principles concerning incorporation by reference.
California Physician Contracts
The most straightforward issue arises when a contract states that an accompanying document is incorporated by reference. It seems clear that this document should be in the possession of the employee or readily available for review upon request or readily found online. For example, physician contract provisions with academic institutions will often include links to numerous university policies that are, in most cases, available to anyone reviewing the document.
The approach to such questions under California law is summarized in this excerpt from a California Court of Appeals decision:
A contract may validly include the provisions of a document not physically a part of the basic contract. . . . ‘It is, of course, the law that the parties may incorporate by reference into their contract the terms of some other document. [Citations.] But each case must turn on its facts. [Citation.] For the terms of another document to be incorporated into the document executed by the parties the reference must be clear and unequivocal, the reference must be called to the attention of the other party and he must consent thereto, and the terms of the incorporated document must be known or easily available to the contracting parties.’ ” ( Williams Constr. Co. v. Standard-Pacific Corp. (1967) 254 Cal. App. 2d 442, 454 [61 Cal. Rptr. 912]; accord, Baker v. Aubry (1989) 216 Cal. App. 3d 1259, 1264 [265 Cal. Rptr. 381], and King v. Larsen Realty, Inc. (1981) 121 Cal. App. 3d 349, 357 [175 Cal. Rptr. 226].)
The contract need not recite that it “incorporates” another document, so long as it “guide[s] the reader to the incorporated document.” (Compare Baker v. Aubry, supra, 216 Cal. App. 3d at p. 1264 [***18] with Chan v. Drexel Burnham Lambert, Inc. (1986) 178 Cal. App. 3d 632, 644 [223 Cal. Rptr. 838].)
Shaw v. Regents of Univ. of Cal., 58 Cal.App.4th 44,54 (1997).
https://law.justia.com/cases/california/court-of-appeal/4th/58/44.html
If written policies are not made available, then there may be an implication that the policy would not be binding on the employee. In any event, as the California Court of Appeals recognized in the excerpt above, “each case must turn on its facts.”
Articulating a similar interpretation, under Massachusetts law, a federal court has noted that the question of whether a handbook constitutes a contract is based on a variety of factors, including its contents and the circumstances of its distribution:
See DeCaro v. Hasbro, Inc., 542 F. Supp. 2d 141, 153 (D. Mass. 2008) (“[T]he fact that the written policies were not distributed to employees suggests that [employer] did not intend to bind itself to apply those policies consistently in all situations.”). Moreover, although Dr. Lee states in her complaint that her employment contract incorporates provisions of the Handbook, she does not sufficiently describe her employment contract or its provisions to state a plausible claim.
Lee v. Howard Hughes Med. Inst., 457 F.Supp.3d 9, 13 (D.Mass 2020).
While a detailed discussion of contract interpretation is beyond the scope of this brief article, three additional contract law principles to be considered here are:
First, where a contract is unambiguous, interpretation of a contract is typically a question of law, not a question of fact. Ristau v. Wescold, Inc., 318 Or. 383 (1994).
https://scholar.google.com/scholar_case?case=18025804736422904918&q=318+Ore.+383&hl=en&as_sdt=6,38
Second, it’s important to note that the judicially-created doctrine of incorporation by reference is a legal principle distinct from the contract law incorporation by reference principle discussed in this article. Specifically, the judicial doctrine treats documents relied upon in a Complaint filed in court as if they are part of the Complaint (this judicially-created doctrine also differs from judicial notice, which is created by rule and allows a court to take notice of well-established or indisputable and reliable facts or documents):
In addition, through a “judicially created doctrine” called incorporation by reference, courts may “treat[ ] documents as though they are part of the complaint itself” when “the plaintiff refers extensively to the document or the document forms the basis of the plaintiff’s claim.” Khoja, 899 F.3d at 1002. The incorporation by reference “doctrine prevents plaintiffs from selecting only portions of documents that support their claims, while omitting portions of those very documents that weaken—or doom—their claims.” Id. The court finds under the circumstances presented here that it is appropriate under the incorporation by reference doctrine to consider the onboarding packet in deciding the Motion. See id.
Martinez v. Albertson’s LLC., No. 8:25-cv-0023-FWS-KES (C.D.Cal. Mar. 25, 2025).
Third, order of precedence is always important to consider, if there is such a provision in your contract. An order of precedence clause will state how to address a situation in which an incorporated document may address an issue in a way that differs in some fashion or adds to or even contradicts a statement or provision in the primary contract. Wilcox v. Basehore, 189 Wash. App. 63 (2015).
https://scholar.google.com/scholar_case?case=17673581557511809334&q=356+P.3d+736&hl=en&as_sdt=6,38
Oregon Physician Contracts
Oregon law is of course similar to California law when it comes to black letter contract law principles. But for one specific decision illustrating what we are talking about, note that under Oregon law when a contract incorporates by reference administrative rules, an interpreting court will follow the rules of interpretation applicable to those rules:
In this case, petitioner challenges the lottery’s interpretation of a term employed in an administrative rule that has been incorporated by reference into a contract. rdinarily, when construing the terms of a contract, we are required to apply the general rules of contract interpretation, as set forth in Yogman v. Parrott, 325 Ore. 358, 361-65, 937 P.2d 1019 (1997). When, however, a contract incorporates by reference the terms of an administrative rule, we must apply the rules of interpretation that apply to administrative rules. Coats v. ODOT, 188 Ore. App. 147, 151, 71 P.3d 172 (2003). Moreover, when a contract with an administrative agency incorporates an agency’s own rule, the interpretation of that incorporated rule is subject to the substantial deference that agencies are due under Don’t Waste Oregon Com. v. Energy Facility Siting Council, 320 Ore. 132, 142, 881 P.2d 119 (1994). Coats, 188 Ore. App. at 152.
Or. Rest. Servs. v. Or. State Lottery, 199 Or.App. 545, 560 (2005).
https://scholar.google.com/scholar_case?case=6985338630571200008&q=199+or.app.+545&hl=en&as_sdt=6,38
Yogman v. Parrott, by the way, cited in the excerpt above, is the touchstone of contract interpretation under Oregon law.
In sum, relevant to our discussion, note that when an Oregon physician contract states that the employed physician must abide by applicable medical ethics and governmental regulations, (e.g. HIPAA, Stark Law and so forth), the employer need not provide you with the ‘gazillion’ pages of potential local, state, and federal statutes and regulations (or medical ethics principles that one hopes were well-introduced in medical school, residency and/or fellowship.
Washington Physician Contracts
Not surprisingly, we find that Washington law is consistent with California and Oregon law:
If the parties to a contract clearly and unequivocally incorporate by reference into their contract some other document, that document becomes part of their contract. See, e.g., Wash. Trust Bank v. Circle K Corp., 15 Wn. App. 89, 93, 546 P.2d 1249 (1976).
Satomi Owners Ass’n v. Satomi, LLC, 167 Wash.2d 781, 801 (2009).
That is a nice, succinct statement – kudos to the Supreme Court of Washington for using plain English.
Montana Physician Contracts
Montana likewise follows the general rule:
In the case at hand, Marias Healthcare and Dr. Turenne signed and executed a valid employment contract that contained specific references to Marias Healthcare policies and provisions. Thus, because the employment contract was adequately bargained for, sufficient consideration was present, and both parties were on notice of the terms of the contract, the inclusion of the referenced policies and procedures is valid. See, e.g., Langager v. Crazy Creek Products, Inc., 1998 MT 44, PP20-21, 287 Mont. 445, 452, 954 P.2d 1169 (holding that the employer was bound by the terms of the employment manual when it was given to the employee and specifically referenced during her employment).
Marias Healthcare Servs. v. Turenne, 2001 MT 127, ¶ 17, 305 Mont. 419, 423.
Conclusion
That’s all the contract law for now. Not scintillating, but important nonetheless.
If you have questions about Oregon, Washington, Montana, or California physician contracts, please let me know by filling out an Intake Form on this website or by emailing me directly. I am happy to help.
And a final word – a contract review up front and before you sign, is of course the proper ‘order of precedence’ when it comes to physician contracts.
