Consulting and Working with Industry

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Dr. Indman: I’m Dr Paul Indman from the global Congress of Minimally Invasive Surgery in Las Vegas, and I am very pleased to have with me Dr. Jim Shwayder from Louisville, Kentucky, as of recently. Dr Shwayder, in addition to being a fine surgeon endoscopist is also an attorney, on our side. One of the questions that comes up frequently is how we relate to industry. Jim, I get calls all the time from someone I represent, ABC Venture Capital, our investing group is thinking of investing in some things, “We’d like to bend your ear for half an hour.” What do you tell them? Are you happy to talk to them, give them free advice? Do you feel that you have years of experience of time that they may be wanting to buy from you? How do you handle those phone calls?

Dr. Shwayder: Paul, I might preface this by saying that I went into law after medicine. What I learned in law was time is money. I think in medicine we have undervalued our value, our worth to companies, and our time. I have taken that into consideration and I think there are several things. I think when you get calls from certain people you need to value your time and make a decision. For instance, there are, certainly, people who have small companies that are trying to just break into an industry, I’m happy to give them my time for free. I want to help them. But certainly when you are dealing with venture capitalists, these are people who are now trying to decide should they invest millions into a product. They are calling you because of your expertise. Your expertise is very valuable for them making the decision to invest or not. If they went to an investment counselor to learn how to invest their funds they would expect to pay for that. I would suggest that depending on the situation, I feel very comfortable in charging those people for the time that you give to them.

Now I see people who are likely to say, “Well, I’ll give you half an hour but after that I need to start charging you because now you are starting to impinge upon my critical time.” I appreciate it when people say whenever I do one other procedure or activity we have to now weigh, are we now losing our ability to earn an income on the other side. So, we should value our time I think.

Dr. Indman: I personally feel that there is a difference between let’s say, a non-profit group consulting with you than a big financial organization whose sole purpose is to make money for their stockholders. I feel why should I give them my valuable time? Their attorneys don’t donate their time at all; they are consultants as you say.

Another question that comes up Jim is industry contacts. You may have had people at this meeting come up to you and say, “We’re working on a new project. Will you look at it? We want to know what you think, and then we would like to maybe get you involved.” What is a fair way of working with that company?

Dr. Shwayder: I think what many of us do is when it is an initial trial, “can you just look at the product, tell me what you think”, get a quick opinion; use it in the O/R. I certainly have no problem looking at those products initially. But I think if you are going to become involved in design, implementation, evaluation and perhaps even speaking on the product in the future, I think there it becomes a different relationship. That has to be more clearly defined as to what their expectations are, and what your expectations are in return.

Dr. Indman: I think all of us have been in situations where we helped develop a product, put a lot of our time and effort to it. The company gets sold, or new people come in, the original people are gone, and you are left out. How do we protect ourselves in that type of situation?

Dr. Shwayder: That’s a complicated issue. Now we enter into a discussion of almost intellectual property rights. Again, industry values that very critically. If you look at the computer industry, look at the design industry, copyright protection, trademark, patent is a very big issue. In medicine many physicians have undervalued their worth, again, with that. I think particularly if you have copyright, trademark or patent ownership that has to be highly valued in this world today. But I think the other thing is maybe you need to look at constructing contracts, which have certain contingency plans, particularly if a company is purchased by another company. What does that mean to your relationship in the company? I think we now have to look at this as you are contracting, you are deciding my worth, how do we move forward in our professional relationship?

Dr. Indman: Good! One last question; frequently we are handed big contracts where we are asked to indemnify a big corporation. We are told this is not modifiable, how do you handle that?

Dr. Wiseman: Again, this is a decision each person has to make. My take on it is that you’ve hit on a very critical point, indemnify a major corporation. This means if they get sued for something you were involved in, or perhaps promoted, that you would indemnify them, perhaps for millions of dollars, if they lose in a law suit. What you then have to decide is, am what I’m getting paid for what I’m doing worth that potential risk? We always have to weigh risk/benefit and we need to become much better with that. If we decide the risk is too great we maybe need to walk away from that contract, or ask to renegotiate it with different terms.

I think as physicians we need to say, “What am I comfortable with?” If the company can meet that, then we can move ahead with the relationship. If we can’t, then we should step away and move onto a different relationship.

Dr. Indman: Thank you very much, this was Dr Jim Shwayder.