May 30, 2025 • 45 mins
Navigating Surgeon-Industry Contracts with Dr. Joel Matta | AHF Podcast
In this episode of the AHF Podcast, host Joe Schwab sits down with Dr. Joel Matta to discuss the critical aspects of surgeon-industry contracts. Drawing from his extensive experience, Dr. Matta provides valuable insights on indemnity clauses, intellectual property, and the importance of legal counsel. He also shares tips for young surgeons on protecting their interests while collaborating with industry. Tune in to learn more about how to maintain a mutually beneficial relationship between surgeons and industry without compromising your legal and financial well-being.
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Episode Transcript
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Joseph M. Schwab (00:24):
Hello everyone and welcome to the AHF Podcast.
I'm.
I'm your host, Joe Schwab.
My guest today needs almost nointroduction.
Dr.
Joel Matta is joining me fromColorado to help kick off a new
series in the podcast.
Lorne Michaels, the legendaryproducer of Saturday Night Live,
has had the unenviable task foralmost 50 years of deciding what
(00:48):
sketches get aired and whatsketches don't.
And so many sketches are used atthe show's rehearsal, that
Michaels often makes decisionsat the last minute.
Before the live show begins,sketches that are cut for time
are often not seen by the mainaudience, but so many of them
had such good material thatMichael's even created a whole
(01:09):
separate television seriesaround them.
It ran from 2013 to 2019.
While the same thing can happenwhen putting together a meeting
program for one reason oranother, talks may end up
getting cut for time.
But thanks to the new AHFpodcast.
Cut for time series.
That doesn't mean they don't gettheir own opportunity to be
(01:30):
heard among as many passions.
Joel Matta feels strongly aboutthe relationship between
surgeons and industry, and animportant part of that
relationship is the contract.
Dr.
Matta has as much or morecontract experience as any
surgeon innovator out there, andtoday he's here to share his
(01:50):
thoughts about the contractingprocess with us.
Joel, welcome to the AHFPodcast.
Joel Matta (01:58):
Joe.
And thanks for organizing this.
Kind of the point of view I'mbringing about is that, uh, I'm
in favor of the, uh, individualsurgeons maintaining their legal
right and the con contractingand, uh, not getting yourself
into problems.
So, um, right now I'm atSteadman Clinic, so contracting
(02:21):
with industry importantconsiderations.
This is just a, uh.
Not unusual image about acontract with.
Here are the contracts sittingon the trigger for a mouse trap
ready to ensnare the victim.
So, uh, just as you, uh, gothrough this process of
contract, it can be withindustry, with other entities.
(02:43):
I just wanted to point out afew.
Simple principles that I'd liketo follow, and I'm not an
attorney.
If you come to HF this year, asI'll mention, you will have a
chance to talk to my attorney,free of charge.
Theresa Ford will be at themeeting.
She's gonna have her own deskthat I'm gonna sponsor just for
(03:04):
your information to get to, uh,talk about these issues.
So some of the.
Joseph M. Schwab (03:10):
talking with surgeons, she'll be, she'll have
the ability to talk withsurgeons about contracting
questions and things.
Joel Matta (03:17):
Absolutely.
Yeah.
So you can already see that.
Maybe I'm not good to talk aboutthis'cause I can't even spell
contract, but, um, at the top ofthe page.
But, uh, some of the things thatyou didn't get in a contract are
consulting agreement.
Uh.
This is a, uh, fee for serviceagreement basically, where you
(03:38):
do a task for an entity, you putin a certain amount of time, you
get paid on an hourly basis.
There can be product developmentagreements.
Uh, these are.
Can be based on time, but theycan also be based on a royalty
situation.
Uh, one thing that comes up isjust publications.
So you're gonna get, if youagree to do a book chapter for a
(04:00):
publisher or a few even publisha paper for an academic journal,
uh, you can get this contract tosign.
Uh, it can be important for youto look at it.
Also, sometimes just educationalevents and, uh, educational
events that you're gonna go to.
Maybe as a participant, maybeyou're gonna be one of the
(04:21):
faculty, and these can be from acadaver lab to maybe a, uh,
breakout session, uh, at ameeting, uh, where you may or
may not get paid, but you may beasked to sign an agreement.
So before you sign, justconsider this when you get a uh,
contract or an agreement from anentity.
(04:44):
This agreement is written by theentity's attorney, and you need
to make an assumption that theagreement is one sided in its
intent.
So.
Maybe there's some benevolententities out there, but in
general, the attorneys arehired, uh, to protect the rights
of the indi of the entity you'recontracting with.
(05:05):
So.
This is right away.
You need to be somewhat suspectof the content and take a look
at it.
So, uh, before you sign, rulenumber one I'd say is read the
agreement.
And I don't know how manysurgeons I've talked to that,
uh, for instance, there's anagreement before an educational
event or we're both consultantsfor the same company.
(05:27):
And I said, did you read it?
No, I didn't read it.
I just signed it as theirstandard agreement.
Well, uh, there can be problems.
Now the so number one rule, readthe agreement.
Secondly, with the agreements donot accept liability and
especially when you see the wordindemnity.
(05:48):
So if you're provide, asked toprovide indemnity or says you
indemnify entity, uh, this issomething.
You shouldn't be signing.
So, uh, the basic principle isyou're gonna get paid a certain
amount, maybe in this fee forservice agreement, but consider
also that the amounts you'regetting paid probably isn't
(06:10):
bigger than if you just stayedhome and did your normal job.
So there may not even be a netbenefit.
So you shouldn't have a netliability or risk by signing the
agreement.
Joseph M. Schwab (06:23):
Hmm.
Are there, are there differentways that they use, uh, that
they use the term indemnity,Joel?
Or does it always indemnify theentity?
Uh, or does it sometimesindemnify the surgeon.
Joel Matta (06:36):
Yeah, it can indemnify the surgeon actually.
I mean the, uh, uh, forinstance, some, uh, product
development agreements, uh, thatI've been part of the, uh.
Entity.
Like some, one of the bigentities like, um, let's say,
you know, Stryker, Zimmer, uh,Zimmer Biome, or, uh, j and j
(06:58):
MedTech, there should be clausesin the product development
agreement that they're gonnaindemnify you or they're gonna
protect you from liability.
So, for instance, with the, weall know that, um, j and j had
to deal with quite a bit withthe metal on metal bearing and,
uh.
(07:19):
This was, some of the designerswere actually protected by the
agreements, so they didindemnify'em, but you'll also
see the other way where you areasked to, I was recently got
one, uh uh.
Product development agreementthat, uh, I'm working through
with my attorney, but there wasclauses that I was supposed to,
(07:41):
in some cir circumstances,indemnify the company, but you
shouldn't be doing that.
I mean, especially just picturethis, you've got a company worth
billions of dollars and you'regonna indemnify him, so you
shouldn't be doing this.
Joseph M. Schwab (07:57):
Do you always recommend legal counsel review
contracts, or is that the wayyou have it done?
Joel Matta (08:03):
Uh, I don't always do it.
I mean, let's say, you know, I'mgonna show you a couple
examples.
Like, uh, you're, um, asked todo a, um.
A cadaver course.
I'm show you an example of acompany later on with that debt
where I didn't call theattorney.
Lemme show you a coupleexamples.
(08:23):
I didn't call the attorney.
One was, uh, you know, just forthis one day thing, you know,
you're gonna teach people aboutcadavers or there's gonna be a,
uh.
Ask to give a lecture andthey're gonna give you a
temporary consulting agreementto give to the lecture.
It's not gonna be worthwhile forme financially to, you know, get
my attorney involved and for meto spend a lot of time.
(08:46):
But still, you need to look atthe agreement.
And, uh, one option too thatI've seen in situations like
that is just as if you have, um.
Onerous language, I just crossout the section and initial it
and then sign the agreement,which they may or may not accept
that, but.
Uh, I'll talk a little more thethe next point.
(09:09):
So I'm just kind of launching inhere.
I'm gonna talk a little moreabout indemnity, these IP things
as we go on.
But, um, one question you haveto ask yourself, do you wanna
give away ip?
It's not necessarily wrong togive away, this is your choice.
You see, uh, you know, maybeyou're giving away some ideas
that could produce futureincome.
(09:30):
The main rule I'm saying isdon't accept liability or a
liability or indemnity.
But, um, many of the consultingagreements, particularly with
the, uh, uh, big implantcompanies already made, they're
gonna have clauses that.
You working for them, uh, meansthat they appropriate the IP
(09:52):
that you disclose during thetime of the consulting agreement
now another
Joseph M. Schwab (09:57):
the, is the intellectual property, correct?
That's what IP
Joel Matta (10:00):
Correct.
Yeah, that's what I'm talkingabout.
We should define that.
Intellectual properties.
So one of the ways I look at,for instance, the intellectual
property, uh.
The fee for service orconsulting agreement is that
when they're paying me for anhour of my time, they got me for
an hour of my time.
They don't get my IP too just'cause I, I worked for an hour.
(10:23):
They already got the me hour ofmy time.
I'd be given my time.
They don't get the ip, uh, forfree.
Now, maybe, uh, maybe they wantyou to.
Work.
Some company wants you to workon your some product and they're
gonna pay you on a fee forservice basis.
(10:43):
Maybe the product isn't gonnamake much money.
Maybe, maybe you're better offgetting a fee for service
agreement, getting paid for yourhourly time than you are, let's
say, getting a royalty of onehalf of 1% of the sales.
That's just a business decision.
Uh, you have to make.
Joseph M. Schwab (11:02):
Yeah.
Joel Matta (11:03):
But, um, you know, consider legal counsel.
Read the agreement.
Uh, consider legal counsel.
Now, a lot of times when you getthe agreement, you'll get it in
an email and, uh, it'll say theemail would be introduced to
something like this.
Uh, this is our standardagreement.
Call us if you have anyquestions.
(11:25):
Okay.
Well, first of all, uh.
I'm not gonna call them.
If I don't understand thelanguage, I'm gonna call my
attorney.
Okay?
So, and one thing to keep inmind is that the agreement, and
this sounds stupid to say, butthe agreement means what the
agreement says.
(11:45):
So for instance.
I've called a company, you know,that sent me the agreement and
I've told them, talked to their,um, let's say marketing who sent
it out.
And I said, I don't really likethis language in this section,
this paragraph.
I don't like the language.
And I, they say, why don't youlike it?
I tell'em.
They say, well, what this reallymeans.
(12:06):
Blah, blah.
And I said, okay, if you wannacross out what the agreement
says and put in the agreementwhat you just told me over the
phone, I'll sign it.
Okay?
But what you just told me overthe phone isn't what the
agreement says.
So if you come to some legal,the BA basic thing is, you know,
blah, blah.
And the company, this individualtold you, well the comp, this
(12:29):
really what it means if you cometo a legal dispute with them.
What they told you over thephone two years previously isn't
gonna mean shit.
What, what means, meanssomething is what the agreement
says.
So you, you have to, uh, stickto that, you know, what the
(12:51):
agreement says, what the exactwording is.
The other thing I've heard fromcompanies too, call'em if you
have any questions.
They say, well.
We've, we've never reallyenforced this clause.
It's just in there just toemphasize to you how important
it is to, let's say, not shareIP or something.
(13:12):
I said, well, if you, if youdon't plan to enforce it, just
take it out, not sign it.
Okay?
But you get all kinds if youfollow the suggestion, you know,
call us if you have anyquestions.
You're gonna get all kinds ofstuff you see.
But keep in mind.
The key is what does theagreement say, and if you don't
(13:32):
understand the language, uh,talk to your attorney about it.
You see
Joseph M. Schwab (13:37):
Yeah.
Joel Matta (13:38):
you're not gonna get the information from the
company.
That's correct.
Now I wanna just explain whatindemnity means as we're going
back to, uh, that.
So when you agree to agree toindemnify an individual or
identify indemnify a company oran entity, you are agreeing to
act like an insurance companyand your.
(14:01):
Typically the way it's written,you're an insurance company that
provides unlimited financialprotection to the entity if such
and such circumstances occur.
And this circumstances thatyou'll see far, and I'll show
you a couple contract exampleslater, but the, uh,
(14:21):
circumstances may be.
Very ill-defined by thecontract, and they may be quite
inclusive, you see?
So what do I do when I'm askedto provide indemnity?
Uh, when I get a contract?
Well, one of the, uh, initialresponses I'll often make is say
(14:42):
if I sign the agreement, uh,with the indemnity clauses, I'm
signing under false pretenses.
Why is that?
Because I'm pretending to be aninsurance company with unlimited
financial resources.
Okay, well, I'm not, okay, soyou're asking me to indemnify
you.
I even if I wanna indemnify you,I can't.
(15:03):
So I can't sign the agreement'cause I'm pretending to
indemnify you and I've nofinancial capability to do it.
Okay?
Now the other thing I'll tellthe uh, companies, I said, look.
If you wanna get an indemnityinsurance policy to cover these
occurrences, there's noinsurance company in the world,
(15:24):
including Lloyd's of London,which will provide an unlimited
indemnity policy.
Okay?
You can't get this anywhere.
Okay?
You're asking me to give it toyou and you can't get it from
the biggest insurance company inthe world, you know?
So the hold, uh, it's actuallykind of stupid, really.
It's just.
(15:46):
You know, you're, you're signingsomething under false pretenses
saying you can do something.
You can't, you're pretending todo something.
They can't get indemnity fromanybody else.
So even though you're anindividual and you think, well,
who am I?
I am nobody.
And, uh, this is one cause thatI've found, you can probably, in
(16:06):
most cases, get'em to drop theindemnity clause just because of
these reasons you see.
Joseph M. Schwab (16:11):
Is this, um, I'm curious, Joel, is this an
abundance of caution on yourpart, or have you seen
situations where companies haveenforced these indemnity clauses
on surgeons that you're awareof?
Joel Matta (16:28):
I'm not aware of a specific case, but you know,
it's things like this.
This is the kind of thing thatthey'll say, uh, you know, we've
never done this.
We don't plan to do it.
Well then throw it out.
You know, it's a little morethan caution and, uh, I'll show
you one, one agreement later on.
That's a little more thancaution.
You know, I think that attorneyslike clauses like this because
(16:51):
it opens the door for moresituations.
They can sue people in or moresituations, they can create
illegal action.
You see?
Joseph M. Schwab (16:59):
The attorney representing the entity you're
saying, or
Joel Matta (17:01):
yeah.
The attorney representing theentity.
Yeah.
And so
Joseph M. Schwab (17:04):
Yeah.
Joel Matta (17:05):
the final thing that I just say should ask yourself
what you're basic is, why shouldI risk my entire net worth?
This is basically what you'redoing.
You're getting paid$500 for anhour of your time, and you're
risking your entire net worth.
Joseph M. Schwab (17:20):
A lot of especially, um, independent
practitioners, uh, will havecreated companies around their
practice.
And, and while that.
That company, uh, obviously canhave significant assets, um, and
significant liabilities, um, toa certain extent.
Aren't some of those created toprotect the, the individual's
(17:43):
net worth?
And does that help in thesesituations or not so much?
I.
Joel Matta (17:48):
Yeah, I don't know all the legal parts of that, but
I, I think it is correct that ifyou have your company, your
entity around that can, uh, youknow, specifically one form of a
company.
It's called an LLC, uh, limitedLiability Company.
So.
Part of those are established,so you're not, uh, the company
(18:09):
is taking the risk, not theindividual that, uh, owns the
assets or, uh, manages thecompany, you see.
But, um, but this is, uh.
Uh, something that comes up, Isee it again and again in
agreements is the, uh, indemnityclause.
(18:30):
Like for instance, uh, here inVail, Colorado, we a lot of
times hire people to plowdriveways and during the
wintertime, which most of us doin our neighborhood.
I got the, uh, agreement fromthe guy, small businessman in
plows the driveway.
Well, basically it had theseindemnity clauses and if you
(18:51):
took the meaning of the contracthe sent is that if he was
driving the couple miles on theroad up the hill to my property
and ran, ran over somebody andkilled them, I would be
responsible.
Because, uh, the, uh, he was onthe way to do the job at my
house, you see?
And so I'm just saying this,these clauses like this are not,
(19:16):
they're not just in thecontracting here, but you can
find it in a lot of littlethings like this that, uh, you
know, I don't wanna, I'm gonnapay you to plow, plow the
driveway.
You know, you, you gotta beresponsible for your, any damage
you create.
You know, I'm away here duringthe driveway or something, but
it's, it's kind of, uh, I thinkone thing going on in our
(19:39):
society, and I, I can see ithappening to physicians a lot.
I, I call, call the game passthe liability.
You see where you're trying topass the liability onto somebody
else.
The, uh.
Uh, it was a while back, uh, a aOS had, uh, instructional course
faculty lecture.
(19:59):
I haven't been on it for a fewyears.
I'm not sure what the currentagreement says, but it had some
language that those lecturingfor at the, in the instructional
course, lectures in indemnifythe A A OS against lawsuits.
Should the, uh, a OS get suedbecause you did something like
(20:21):
copyright infringement.
Okay,
Joseph M. Schwab (20:23):
wow.
Joel Matta (20:24):
so I threw a bomb.
What I did is I, I wrote aletter to everybody on the
instructional course lecture andI said, don't sign it.
You know, so I figured if Icould complain, nothing's gonna
happen, but if I throw a wrenchin the works, they're gonna fix
this.
I think I threw a wrench.
They did.
But I was barred from thefaculty that year and, uh, they
(20:48):
were really an, you know, thepresident was angry with me and
everything, but they fixed it,you know, but it, it came out,
the reason they had that clause,I.
That the instructional coursefaculty for a OS and we're all
members of a OS, keep that inmind.
We are a a OS, the instructionalcourse faculty.
We had to indemnify our ownentity because this was a demand
(21:13):
put upon a a OS by the insurancecompany for a OS.
So basically, the insurancecompany was requiring that the
insured indemnify them.
Part of the reason they did thisis they have been sued over a
copyright infringement thing.
I didn't think somebody in theirinstructional course handout had
made photocopies of some bookchapters or something, you see?
(21:38):
And they, they got ensued.
So now they, their solution wasto tell the.
Faculty, the a OS members toindemnify the A A OS, you know,
and that was basically toindemnify the insurance company.
See?
So some of these things you canimagine happening, like, uh,
(21:58):
maybe copyright infringement orthe thing I'm talking about, the
guy plowing the driveway or thesmall companies.
And I'll show you one example, Ithink later on too, that I was
asked to sign indemnity anddidn't do it.
Okay.
We can.
So anyway, I don't think youshould provide unlimited
(22:18):
indemnity to any individual orentity you contact with.
I've of these indemnity clauses,I've gotten a couple of the big
companies to take'em out oftheir contract.
Um, consulting fee for serviceagreements.
Uh, I mentioned this a littlebit, but you're paid for your
time, so you wanna give up yourIP for, for free.
(22:40):
You know, and this is kind of achoice, you know, I mean, you're
not incurring liability, but.
You just have to decide is whatthey're paying you per hour, uh,
you know, worthwhile that yougive'em IP to help develop
products Or is the IP a separateitem?
I like to keep the IP a separateitem from time, you know, so,
(23:02):
um.
Uh, because a lot of theconsulting agreements that
they're built around, I mean,the reason I have the consulting
agreement with the company is,is more to participate in the
educational venues you see,
Joseph M. Schwab (23:15):
Yeah.
Yeah.
Joel Matta (23:16):
so you can make a choice, try to tailor your
agreement to be focused on theeducational aspects you provide,
not not giving free IP to thecompany.
Joseph M. Schwab (23:29):
So if you're specifically working with a
company on, uh, on, forinstance, a, um, a new, uh,
prosthesis, um, and there'sintellectual property involved,
but there's also your timeinvolved, right?
Your ideas don't come withouttime.
Do you generally try tostructure those contracts that
there is, uh, compensation forboth of those aspects, or if
(23:52):
you're dealing with intellectualproperty, do you ignore the time
component of it?
Joel Matta (23:57):
Yeah, if I'm dealing with, uh, uh, ip, uh, and it's
something to do with the taxlaws too.
You can contact, uh, you know,ask your attorney, ask your
accountant even that if they,uh, let's say you're developing
a new hip prosthesis and they'repaying you hourly to develop the
hip prosthesis, well then, uh,you've, you've already been.
(24:21):
Paid for your ip and then theroyal you receive will probably
be taxable as, uh, regularincome.
Whereas if you just, all yourtime is for free and the whole
transaction is a transaction ofintellectual property, then you
can claim it as a capital gainsbecause, uh, you know, you
(24:41):
traded something you alreadyowned.
For some something else.
So it's actually a capital gainsand the taxation of capital
gains income is of course lowerthan, uh, taxation of regular
income.
Joseph M. Schwab (24:56):
So this might be a case by case basis,
depending on what you'redeveloping.
Huh?
Joel Matta (25:01):
Yeah.
And some of the companies, uh,you can, you can kind of have
it, uh, both ways in a way thatif you, uh, you know, spend, you
know.
Days and many hours over thecourse of a couple years
developing a product.
And the company, uh, nevermarkets a product.
(25:22):
It can be in your contract thatyou are paid for your time, you
know, as if it's a, uh.
Fee for service agreement, yousee?
But if the product actually goesto market and you're gonna get a
royalty on it, you may be betteroff, you're probably gonna be
better off tax wise if you'renever paid, uh, for the time you
spent developing the product.
Joseph M. Schwab (25:43):
Okay.
Interesting.
So there's ways to be flexiblewith those contracts.
Joel Matta (25:48):
Yeah, yeah.
There is.
And, and some of these thingsare maybe cost neutral to the
company, one thing I was gonnabring up too, about the, uh, fee
for service agreements.
A lot of'em have, when you givean educational, uh,
presentation, and you shouldread this part of it, that, uh,
some of them say that, um, the,uh, entity that you gave it for
(26:13):
now owns all of the material.
And it may even have someclauses about IP connected.
The imperial material presented.
It says that it, it may say itowns all the copyrights,
potential copyright to thematerial presented.
You see?
So, um, I.
You probably are gonna wannareword something like that
(26:36):
because this is something youcreated.
I mean, you own most of it.
You, you spent some time, theypaid for you for the time.
But you know, probably as mostof us do, you're gonna resort a
lot of slides.
You're gonna maybe tweak it alittle bit for this particular
occasion, but most of it's stuffthat's.
Come from the knowledge thatyou've built up over years in
(26:58):
orthopedics and, uh, you wannabe able to, to use it.
So, uh, so anyway, if you sign astandard agreement, you may, uh,
not only give up, uh.
You know your time, but youmight give up your ip.
You might give a pre ownershipof presentation materials, and
(27:20):
worse, you might even indemnifythem for use.
Of the materials, like, um, somy suggestion is don't give up
IP for free.
And then also you can allow anon-exclusive license for the
entity to use your presentation.
So yes, after you talk at suchand such meeting, they can use
(27:43):
your presentation, but it's anon-exclusive license.
Uh, they have to do it.
Joseph M. Schwab (27:50):
Hmm.
Joel Matta (27:52):
There was one, uh, some years back and I got the
company to change it.
I won't say the company's name,but, um, they had, uh, clauses
as far as your fee for serviceagreement.
First, any IP or ideas youdisclose, they automatically
own.
And then it goes on further tosay, if they, let's say, take
(28:15):
your idea for a new product, andthey, um.
Make the product and they getsued by some entity, uh, for,
uh, you know, copying somethingor patent infringement.
You indemnify the company forloss, so stole your ip.
Secondly, if they your IP andgot sued for it, you have to pay
(28:38):
all their legal costs.
Joseph M. Schwab (28:39):
Oh my goodness.
Oh my
Joel Matta (28:41):
Yes.
So there was the, the one, uh,company involved.
Uh, it was some years back.
It was, uh, and, um, maybe 15years back, and I called the
other consultants.
I said, did you read theagreement?
Do you know what it means?
They said, no, I didn't read theagreement.
I just signed it, you know, and,uh, so I ended up meeting with
(29:03):
the president of the companyabout this, and finally it got
changed.
The, their initial offer was,uh.
Well, your indemnity is lilimited to a million dollars.
And I said, well, this justshows how stupid your agreement
is.
You pay me 500 and I risk amillion.
You know, I mean, why would I?
So, um, anyway, read theagreement.
(29:27):
Okay then, uh, I was gonna justbring up a maybe to close here,
uh, examples of a couple recentdocuments I was asked to sign.
Okay.
Joseph M. Schwab (29:38):
Yeah.
Let's look at it.
Joel Matta (29:39):
Yeah, here was a, um, I was gonna teach, so I'm a
consultant for the company.
I'm gonna teach at a cadaverlab, and then, um, I get a, uh.
Document that I signed beforethe cadaver lab, and it's
reasonable waiver of liabilityand hold harmless agreement,
which means, you know, if I getstabbed by a knife or you know,
(30:03):
somebody runs a drill it throughmy hand, I'm accepting the risk.
Okay?
But what actually happens isthis, uh, agreement goes beyond
waiver of liability andwholeheartedness.
This says.
I agree to indemnify, defend,hold, harmless.
I've crossed out the companyname for many claims that may
arise from my participation inthis course or another course.
(30:28):
Well, this is potentially arisk.
I mean, you, you are in acadaver lab, okay?
And we got sharp stuff.
We got, you know, knives, we gotpower equipment.
Is it possible for me to.
Hurts somebody you know, or forthem to contract the disease
'cause they're on a knife ordrill that through their hand.
(30:48):
Demonstrate, of course, youknow, you can't sign this.
finally after getting the otherfaculty involved, the company
deleted this clause, but theywere actually also asking the
participants were all being toldto sign this agreement.
You see, and the participantsweren't even getting any
financial compensation.
They're there to learn, and Ican see how they can release
(31:10):
liability, but they, theyshouldn't indemnify the company
and.
Uh, and I'm, I'm putting thename of the company here because
you can find this on theirwebsite.
It's public information and itsays VI Labs.
Agreement to teach or go work attheir lab.
So again, it's called a waiverand release of liability
(31:31):
agreement.
Now it says in the agreement, Iagree to defend indemnify, hold
ticus group harmless, free andclear, glanced to any and all
demands.
Claims, you know, it goes on andon and that's what I mean.
These things go on and on.
So this is a company that's notthat big.
Vitus Labs, you know, and you,you do something in their lab
(31:54):
and hurt somebody and they sueVitus S labs.
You think Vitus slabs not gonnacome after you.
Joseph M. Schwab (32:01):
Interesting.
So what do you think they meanby defend here?
I, I'm kind of curious aboutthat.
Joel Matta (32:07):
Well, that means, uh, I interpret as a legal
defense.
You see,
Joseph M. Schwab (32:13):
Yeah.
Joel Matta (32:13):
you're gonna have to do a legal defense, you see?
And so the thing that comes upis, uh, let's say, but the
essence of this is too, let'ssay, uh, somebody at your table
said, uh, you know, you.
Let's say it's a spurious,stupid lawsuit.
(32:35):
You know, like they said, the,the individual claims, well,
you, uh, you know.
Stressed me out.
You've applied great stress thathas caused me anxiety for weeks
afterwards by belittling meduring the lab or something.
Okay, so it's a stupid suit.
It isn't gonna go anywhere whenyou indemnify.
(32:56):
So you're, you're indemnifyingthem against all claims demand.
So even if it's somethingstupid, indemnify means you're
gonna pay the legal costs.
Joseph M. Schwab (33:07):
Right.
Joel Matta (33:08):
They had to get their attorney involved to
defend it or something, youknow?
So So there, there are probablysome of the big companies
probably not gonna go after you.
I think something like size ofTicus Labs, potentially they
could, you see, um, the um, uh,stuff like that going on.
(33:30):
Okay.
Now.
I'll just get a, I've got onemore, just example.
So there was, uh.
I was asked before one of thebig meetings to come early.
We were gonna have like aseveral hour session teaching
anterior approach lectures onanterior approach.
This was, uh, initiated by acompany that wants to sell
(33:50):
drapes for anterior approach.
So my job show up, give alecture, they're gonna give me a
fee for giving a lecture.
I'm not gonna endorse the drape.
I'm just gonna talk about how Ido an your approach, but.
In order to give the lecture,I'm given a, uh, consulting
agreement with, uh, indemnityprovisions also, uh, that, uh,
(34:14):
IP provisions that, uh.
You know, it could extend, I'minvolved in anterior approach,
you know, so I mean, if I wannadevelop some drape with somebody
else, you know, could, thiscould be sticky, you know.
And then also that, uh, thepresentation materials they own,
(34:35):
uh, they claim ownership.
And I indemnify'em for use of mypresentation materials.
So this is just to give alecture, but, uh.
Anyway, I crossed out thecompany name.
I won't go into it, but justkind of how some of the stuff
reached consultants, indemnityconsultants, shall indemnify,
defend, hold, harmless, uh,company, and its shareholders,
(34:58):
directors, affiliates, officers,employees, representatives, XI
against all was liabilities,damages, demands, claims, suits,
actions cause of cause ofaction, costs and expenses of
any kind of a third party claim.
You know, so this is this tip,pretty typical language.
And then, uh, the, um, IPsection, intellectual property,
(35:23):
all ideas, inventions,discoveries, designs, prints,
plans, data improvement,derivative.
So if you under improve on theirthing or they claim you derived,
uh, this is all owned by the,uh.
The entity plus you, uh,indemnify'em for using your
(35:43):
stuff.
So
Joseph M. Schwab (35:44):
it's easy to see, just reading this language,
why so many people would want toskip this over, right?
I mean, it's just, it's soobtusely written and, and can be
difficult to parse through forsomebody who's not as used to it
as you are.
Joel Matta (35:59):
Right.
Yeah.
And consultants shall withoutfurther consideration, disclose
all inventions promptly toassign inventions to cooperate
and do all things necessary tosystem.
You know, it's like I.
I'm just gonna show up and givea talk.
You know, I'm talking aboutAngel approach.
I don't know, I don't even knowwhat your product is.
I'm not gonna sell it, you know,uh, you know, it's just, uh, it,
(36:25):
it goes on and on.
But, um, anyway, so just to kindof sum up, read the agreement, I
say don't accept liability,especially, don't agree to
indemnify entities.
Consider ip, you know, is feefor service enough for you or.
I do wanna protect your IP andof course, consider legal
(36:46):
counsel and, uh, at our IHF 2025meeting, appetite for
disruption, which I have ofcourse, uh, June 6th to 7 20 25.
Uh, I'd say a 10 to hf.
We want you to, and there youcan meet and ask questions with
(37:06):
Theresa Ford.
She's my attorney for a numberof years.
Uh, with the contracting, lookat the elements of contracting,
and she's gonna be in the AHF,uh, exhibit area.
She's gonna have a desk.
She's gonna answer questions,uh, give information free of
charge.
Uh, another thing I didn'tmention in the presentation is
(37:27):
the issue of compliance, whereashis Department of Justice
regulations.
That, uh, government orcontracting with companies,
usually the big companies arepretty up on this.
You don't get into trouble, butyou can, I end up ident, uh,
contracting with a littlecompany that maybe isn't, uh, up
on compliance and potentiallyget, uh.
(37:51):
You don't wanna get in troublewith the DOJ, but that's what a
client's about.
And a good attorney will helpyou main, make sure your
agreements are compliant with,uh, uh, department of Justice
guidelines.
Also,
Joseph M. Schwab (38:05):
And Theresa, uh, who's gonna be at the AHF
where does she practice out of?
Joel Matta (38:09):
uh, she practices and she's now in the state of
Washington.
Outside Seattle.
She started in Texas, down inHouston.
But she has, uh, a number ofclients all over the country and
communicates by, uh, like youoften do with attorney's email
and phone.
And, uh, if somebody specializesin.
(38:33):
Physician contracting.
I'm sure there's other attorneysout there too, but I mean, she's
known in the industry, so ifshe, uh, is in discussion with,
uh, somebody at the big implantcompanies, they know who she is
and that she's knowledgeable in,in this area.
Joseph M. Schwab (38:50):
you know, we do such, We have such an
intersection of, of innovation,technology, industry and
surgeons at the AHF meeting ingeneral.
It's gonna be fantastic to haveher there as a resource.
Joel Matta (39:02):
I think so.
Yeah.
Everybody should stop by, sayhi, and if you have any
questions.
Joseph M. Schwab (39:07):
So Joel, it sounds like if I'm hearing you
correctly, like in a lot ofareas in contracting, you are
your biggest advocate.
Is that right?
And then secondarily, you know,have somebody who can advise you
if you don't know what thelanguage means.
Joel Matta (39:25):
Yes, that's correct.
Yeah.
I mean, you have to be anadvocate.
Uh, sometimes, uh, talking toTheresa, she gets a little
frustrated with some of herclients because she thinks they,
they give in too easily.
Like they, uh, say, well, it's,they're not gonna enforce that,
or, yeah, we can, I'll sign it,no problem.
And, uh, the, um, it'ssurprising sometimes.
(39:49):
I mean, I'm, uh, you know,better.
Better known, obviously, than alot of the young surgeons who
are going to be involved incontracting.
But still, you have to, don't beafraid to speak up and question
things in a contract or justsay, you, you can't do this.
You know, like, um.
(40:11):
Good.
I would personally, I guess I'mon a little, uh, mission that
I'd like to see these indemnityclauses just disappear because,
uh, they're basically nonsense.
You know, individuals can'tindemnify these big companies
and it's, um, not, uh, good foryou to risk your and tire net
(40:34):
worth over something like, uh,going to a cadaver lab to teach
or learn.
Joseph M. Schwab (40:40):
Yeah.
Which is a, can be a, atremendous career builder for a
young surgeon.
Um, I, I do think it's gotta bedifficult for some young
surgeons in practice who aren't,you know, don't have the
reputation of a Joel Matta, likeyou said, um, are gonna feel
some pressure to accept some ofthese clauses, um, that, you
(41:03):
know, uh, in theory won't putthem at risk.
But like you said, what'swritten in the contract is
what's written in the contract.
Joel Matta (41:10):
Yeah, I think you're absolutely correct, Joe.
And that's, uh, when I'm talkingabout this game, they call pass
the liability.
I think we're targets, you know,we're targets because acting as
an individual, you know,sometimes it's difficult to say,
do we really have power against,uh, some big company?
You know.
Joseph M. Schwab (41:30):
Yeah.
Joel Matta (41:31):
And, uh, and they can just say, well, screw that
guy.
We'll get somebody else.
So it is a, a little difficulty,but I think maybe just bringing
up some of these questions and,uh, you know, companies that.
You know, in the contractingprocess, be it a publisher, be
it an implant company, be it,you know, some other, some
(41:55):
commercial entity, if they keephearing this again and again,
you know, I, I think, I thinkit's can potentially disappear
or change.
Joseph M. Schwab (42:04):
So is there any room for just saying, as
surgeons, maybe we just don'twork with companies anymore, or
is that something that, um, youknow, doesn't do us good in the
long run?
Joel Matta (42:18):
I'd like to think that I've, uh.
Made an important contributionto, uh, human health and
wellbeing by working withcompanies that, uh, getting, uh,
you know, beneficial productsavailable, uh, for use in
medicine, I think is one way tomake a contribution to medicine.
(42:41):
So, um, you know, I.
I'm, I'm not in favor ofstopping to work with companies
or commercial entities.
It's been, and I think it's alittle bit sad in the way that,
uh, sometimes, um, it's almosttalked about, like, it's, it's
shameful.
You're making money fromproducts or something, or it's
(43:04):
shameful.
You're working with com.
This, there's kind of thislittle undercurrent I sense
sometimes, you know, but, um, Ithink it's actually, I.
Important function.
You know, and I, I believe incapitalism and medicine.
I think capitalism advancesmedicine.
I think the for-profit aspectsof it are very important in
(43:26):
advancing innovation andproducts.
Joseph M. Schwab (43:31):
Joel, I, I couldn't agree with you more,
and I, I can't thank you enoughfor the time that you've shared
with us and for being, um, forbeing the pioneer, first of all,
in the anterior approach, butnow being the pioneer in the AHF
podcast series on cut for time,I, I couldn't think of anyone
better than to give us our firsttalk in this series.
Joel Matta (43:52):
Well, I'm still a little miffed'cause I got cut,
Joe.
You know, I mean.
Joseph M. Schwab (43:56):
That's fair.
That's fair.
I can't do anything about, well,I suppose I could do something
about that.
Joel Matta (44:03):
I'm happy we're doing this.
And I think the, uh, uh, youknow, what you've been involved
in we wanna do is make the, uh.
AHF website, uh, educationalsource also.
And, uh, whether or not you callthis talk education, I think it
certainly, uh, should getpeople's mind working.
You know,
Joseph M. Schwab (44:24):
Yeah.
Well, thank you so much, Joel.
I really appreciate having youon this episode of the AHF
Podcast.
And for our listeners out there,please take a moment to like and
subscribe.
You'll be helping us find morepeople just like you to share
our content.
And as a subscriber, you canalways drop an idea for a topic
(44:47):
or any feedback you'd like inthe comments below.
You can find the AHF podcast onApple Podcasts, Spotify, or in
any of your favorite podcastapps, as well as in video form
on YouTube slash at anterior hipfoundation, all one word.
New podcast episodes come out onFridays.
(45:07):
I'm your host, Joe Schwab,asking you to keep your hips and
contracts happy and healthy.
Hello everyone and welcome to the AHF Podcast.
I'm.
I'm your host, Joe Schwab.
My guest today needs almost nointroduction.
Dr.
Joel Matta is joining me fromColorado to help kick off a new
series in the podcast.
Lorne Michaels, the legendaryproducer of Saturday Night Live,
has had the unenviable task foralmost 50 years of deciding what
(00:48):
sketches get aired and whatsketches don't.
And so many sketches are used atthe show's rehearsal, that
Michaels often makes decisionsat the last minute.
Before the live show begins,sketches that are cut for time
are often not seen by the mainaudience, but so many of them
had such good material thatMichael's even created a whole
(01:09):
separate television seriesaround them.
It ran from 2013 to 2019.
While the same thing can happenwhen putting together a meeting
program for one reason oranother, talks may end up
getting cut for time.
But thanks to the new AHFpodcast.
Cut for time series.
That doesn't mean they don't gettheir own opportunity to be
(01:30):
heard among as many passions.
Joel Matta feels strongly aboutthe relationship between
surgeons and industry, and animportant part of that
relationship is the contract.
Dr.
Matta has as much or morecontract experience as any
surgeon innovator out there, andtoday he's here to share his
(01:50):
thoughts about the contractingprocess with us.
Joel, welcome to the AHFPodcast.
Joel Matta (01:58):
Joe.
And thanks for organizing this.
Kind of the point of view I'mbringing about is that, uh, I'm
in favor of the, uh, individualsurgeons maintaining their legal
right and the con contractingand, uh, not getting yourself
into problems.
So, um, right now I'm atSteadman Clinic, so contracting
(02:21):
with industry importantconsiderations.
This is just a, uh.
Not unusual image about acontract with.
Here are the contracts sittingon the trigger for a mouse trap
ready to ensnare the victim.
So, uh, just as you, uh, gothrough this process of
contract, it can be withindustry, with other entities.
(02:43):
I just wanted to point out afew.
Simple principles that I'd liketo follow, and I'm not an
attorney.
If you come to HF this year, asI'll mention, you will have a
chance to talk to my attorney,free of charge.
Theresa Ford will be at themeeting.
She's gonna have her own deskthat I'm gonna sponsor just for
(03:04):
your information to get to, uh,talk about these issues.
So some of the.
Joseph M. Schwab (03:10):
talking with surgeons, she'll be, she'll have
the ability to talk withsurgeons about contracting
questions and things.
Joel Matta (03:17):
Absolutely.
Yeah.
So you can already see that.
Maybe I'm not good to talk aboutthis'cause I can't even spell
contract, but, um, at the top ofthe page.
But, uh, some of the things thatyou didn't get in a contract are
consulting agreement.
Uh.
This is a, uh, fee for serviceagreement basically, where you
(03:38):
do a task for an entity, you putin a certain amount of time, you
get paid on an hourly basis.
There can be product developmentagreements.
Uh, these are.
Can be based on time, but theycan also be based on a royalty
situation.
Uh, one thing that comes up isjust publications.
So you're gonna get, if youagree to do a book chapter for a
(04:00):
publisher or a few even publisha paper for an academic journal,
uh, you can get this contract tosign.
Uh, it can be important for youto look at it.
Also, sometimes just educationalevents and, uh, educational
events that you're gonna go to.
Maybe as a participant, maybeyou're gonna be one of the
(04:21):
faculty, and these can be from acadaver lab to maybe a, uh,
breakout session, uh, at ameeting, uh, where you may or
may not get paid, but you may beasked to sign an agreement.
So before you sign, justconsider this when you get a uh,
contract or an agreement from anentity.
(04:44):
This agreement is written by theentity's attorney, and you need
to make an assumption that theagreement is one sided in its
intent.
So.
Maybe there's some benevolententities out there, but in
general, the attorneys arehired, uh, to protect the rights
of the indi of the entity you'recontracting with.
(05:05):
So.
This is right away.
You need to be somewhat suspectof the content and take a look
at it.
So, uh, before you sign, rulenumber one I'd say is read the
agreement.
And I don't know how manysurgeons I've talked to that,
uh, for instance, there's anagreement before an educational
event or we're both consultantsfor the same company.
(05:27):
And I said, did you read it?
No, I didn't read it.
I just signed it as theirstandard agreement.
Well, uh, there can be problems.
Now the so number one rule, readthe agreement.
Secondly, with the agreements donot accept liability and
especially when you see the wordindemnity.
(05:48):
So if you're provide, asked toprovide indemnity or says you
indemnify entity, uh, this issomething.
You shouldn't be signing.
So, uh, the basic principle isyou're gonna get paid a certain
amount, maybe in this fee forservice agreement, but consider
also that the amounts you'regetting paid probably isn't
(06:10):
bigger than if you just stayedhome and did your normal job.
So there may not even be a netbenefit.
So you shouldn't have a netliability or risk by signing the
agreement.
Joseph M. Schwab (06:23):
Hmm.
Are there, are there differentways that they use, uh, that
they use the term indemnity,Joel?
Or does it always indemnify theentity?
Uh, or does it sometimesindemnify the surgeon.
Joel Matta (06:36):
Yeah, it can indemnify the surgeon actually.
I mean the, uh, uh, forinstance, some, uh, product
development agreements, uh, thatI've been part of the, uh.
Entity.
Like some, one of the bigentities like, um, let's say,
you know, Stryker, Zimmer, uh,Zimmer Biome, or, uh, j and j
(06:58):
MedTech, there should be clausesin the product development
agreement that they're gonnaindemnify you or they're gonna
protect you from liability.
So, for instance, with the, weall know that, um, j and j had
to deal with quite a bit withthe metal on metal bearing and,
uh.
(07:19):
This was, some of the designerswere actually protected by the
agreements, so they didindemnify'em, but you'll also
see the other way where you areasked to, I was recently got
one, uh uh.
Product development agreementthat, uh, I'm working through
with my attorney, but there wasclauses that I was supposed to,
(07:41):
in some cir circumstances,indemnify the company, but you
shouldn't be doing that.
I mean, especially just picturethis, you've got a company worth
billions of dollars and you'regonna indemnify him, so you
shouldn't be doing this.
Joseph M. Schwab (07:57):
Do you always recommend legal counsel review
contracts, or is that the wayyou have it done?
Joel Matta (08:03):
Uh, I don't always do it.
I mean, let's say, you know, I'mgonna show you a couple
examples.
Like, uh, you're, um, asked todo a, um.
A cadaver course.
I'm show you an example of acompany later on with that debt
where I didn't call theattorney.
Lemme show you a coupleexamples.
(08:23):
I didn't call the attorney.
One was, uh, you know, just forthis one day thing, you know,
you're gonna teach people aboutcadavers or there's gonna be a,
uh.
Ask to give a lecture andthey're gonna give you a
temporary consulting agreementto give to the lecture.
It's not gonna be worthwhile forme financially to, you know, get
my attorney involved and for meto spend a lot of time.
(08:46):
But still, you need to look atthe agreement.
And, uh, one option too thatI've seen in situations like
that is just as if you have, um.
Onerous language, I just crossout the section and initial it
and then sign the agreement,which they may or may not accept
that, but.
Uh, I'll talk a little more thethe next point.
(09:09):
So I'm just kind of launching inhere.
I'm gonna talk a little moreabout indemnity, these IP things
as we go on.
But, um, one question you haveto ask yourself, do you wanna
give away ip?
It's not necessarily wrong togive away, this is your choice.
You see, uh, you know, maybeyou're giving away some ideas
that could produce futureincome.
(09:30):
The main rule I'm saying isdon't accept liability or a
liability or indemnity.
But, um, many of the consultingagreements, particularly with
the, uh, uh, big implantcompanies already made, they're
gonna have clauses that.
You working for them, uh, meansthat they appropriate the IP
(09:52):
that you disclose during thetime of the consulting agreement
now another
Joseph M. Schwab (09:57):
the, is the intellectual property, correct?
That's what IP
Joel Matta (10:00):
Correct.
Yeah, that's what I'm talkingabout.
We should define that.
Intellectual properties.
So one of the ways I look at,for instance, the intellectual
property, uh.
The fee for service orconsulting agreement is that
when they're paying me for anhour of my time, they got me for
an hour of my time.
They don't get my IP too just'cause I, I worked for an hour.
(10:23):
They already got the me hour ofmy time.
I'd be given my time.
They don't get the ip, uh, forfree.
Now, maybe, uh, maybe they wantyou to.
Work.
Some company wants you to workon your some product and they're
gonna pay you on a fee forservice basis.
(10:43):
Maybe the product isn't gonnamake much money.
Maybe, maybe you're better offgetting a fee for service
agreement, getting paid for yourhourly time than you are, let's
say, getting a royalty of onehalf of 1% of the sales.
That's just a business decision.
Uh, you have to make.
Joseph M. Schwab (11:02):
Yeah.
Joel Matta (11:03):
But, um, you know, consider legal counsel.
Read the agreement.
Uh, consider legal counsel.
Now, a lot of times when you getthe agreement, you'll get it in
an email and, uh, it'll say theemail would be introduced to
something like this.
Uh, this is our standardagreement.
Call us if you have anyquestions.
(11:25):
Okay.
Well, first of all, uh.
I'm not gonna call them.
If I don't understand thelanguage, I'm gonna call my
attorney.
Okay?
So, and one thing to keep inmind is that the agreement, and
this sounds stupid to say, butthe agreement means what the
agreement says.
(11:45):
So for instance.
I've called a company, you know,that sent me the agreement and
I've told them, talked to their,um, let's say marketing who sent
it out.
And I said, I don't really likethis language in this section,
this paragraph.
I don't like the language.
And I, they say, why don't youlike it?
I tell'em.
They say, well, what this reallymeans.
(12:06):
Blah, blah.
And I said, okay, if you wannacross out what the agreement
says and put in the agreementwhat you just told me over the
phone, I'll sign it.
Okay?
But what you just told me overthe phone isn't what the
agreement says.
So if you come to some legal,the BA basic thing is, you know,
blah, blah.
And the company, this individualtold you, well the comp, this
(12:29):
really what it means if you cometo a legal dispute with them.
What they told you over thephone two years previously isn't
gonna mean shit.
What, what means, meanssomething is what the agreement
says.
So you, you have to, uh, stickto that, you know, what the
(12:51):
agreement says, what the exactwording is.
The other thing I've heard fromcompanies too, call'em if you
have any questions.
They say, well.
We've, we've never reallyenforced this clause.
It's just in there just toemphasize to you how important
it is to, let's say, not shareIP or something.
(13:12):
I said, well, if you, if youdon't plan to enforce it, just
take it out, not sign it.
Okay?
But you get all kinds if youfollow the suggestion, you know,
call us if you have anyquestions.
You're gonna get all kinds ofstuff you see.
But keep in mind.
The key is what does theagreement say, and if you don't
(13:32):
understand the language, uh,talk to your attorney about it.
You see
Joseph M. Schwab (13:37):
Yeah.
Joel Matta (13:38):
you're not gonna get the information from the
company.
That's correct.
Now I wanna just explain whatindemnity means as we're going
back to, uh, that.
So when you agree to agree toindemnify an individual or
identify indemnify a company oran entity, you are agreeing to
act like an insurance companyand your.
(14:01):
Typically the way it's written,you're an insurance company that
provides unlimited financialprotection to the entity if such
and such circumstances occur.
And this circumstances thatyou'll see far, and I'll show
you a couple contract exampleslater, but the, uh,
(14:21):
circumstances may be.
Very ill-defined by thecontract, and they may be quite
inclusive, you see?
So what do I do when I'm askedto provide indemnity?
Uh, when I get a contract?
Well, one of the, uh, initialresponses I'll often make is say
(14:42):
if I sign the agreement, uh,with the indemnity clauses, I'm
signing under false pretenses.
Why is that?
Because I'm pretending to be aninsurance company with unlimited
financial resources.
Okay, well, I'm not, okay, soyou're asking me to indemnify
you.
I even if I wanna indemnify you,I can't.
(15:03):
So I can't sign the agreement'cause I'm pretending to
indemnify you and I've nofinancial capability to do it.
Okay?
Now the other thing I'll tellthe uh, companies, I said, look.
If you wanna get an indemnityinsurance policy to cover these
occurrences, there's noinsurance company in the world,
(15:24):
including Lloyd's of London,which will provide an unlimited
indemnity policy.
Okay?
You can't get this anywhere.
Okay?
You're asking me to give it toyou and you can't get it from
the biggest insurance company inthe world, you know?
So the hold, uh, it's actuallykind of stupid, really.
It's just.
(15:46):
You know, you're, you're signingsomething under false pretenses
saying you can do something.
You can't, you're pretending todo something.
They can't get indemnity fromanybody else.
So even though you're anindividual and you think, well,
who am I?
I am nobody.
And, uh, this is one cause thatI've found, you can probably, in
(16:06):
most cases, get'em to drop theindemnity clause just because of
these reasons you see.
Joseph M. Schwab (16:11):
Is this, um, I'm curious, Joel, is this an
abundance of caution on yourpart, or have you seen
situations where companies haveenforced these indemnity clauses
on surgeons that you're awareof?
Joel Matta (16:28):
I'm not aware of a specific case, but you know,
it's things like this.
This is the kind of thing thatthey'll say, uh, you know, we've
never done this.
We don't plan to do it.
Well then throw it out.
You know, it's a little morethan caution and, uh, I'll show
you one, one agreement later on.
That's a little more thancaution.
You know, I think that attorneyslike clauses like this because
(16:51):
it opens the door for moresituations.
They can sue people in or moresituations, they can create
illegal action.
You see?
Joseph M. Schwab (16:59):
The attorney representing the entity you're
saying, or
Joel Matta (17:01):
yeah.
The attorney representing theentity.
Yeah.
And so
Joseph M. Schwab (17:04):
Yeah.
Joel Matta (17:05):
the final thing that I just say should ask yourself
what you're basic is, why shouldI risk my entire net worth?
This is basically what you'redoing.
You're getting paid$500 for anhour of your time, and you're
risking your entire net worth.
Joseph M. Schwab (17:20):
A lot of especially, um, independent
practitioners, uh, will havecreated companies around their
practice.
And, and while that.
That company, uh, obviously canhave significant assets, um, and
significant liabilities, um, toa certain extent.
Aren't some of those created toprotect the, the individual's
(17:43):
net worth?
And does that help in thesesituations or not so much?
I.
Joel Matta (17:48):
Yeah, I don't know all the legal parts of that, but
I, I think it is correct that ifyou have your company, your
entity around that can, uh, youknow, specifically one form of a
company.
It's called an LLC, uh, limitedLiability Company.
So.
Part of those are established,so you're not, uh, the company
(18:09):
is taking the risk, not theindividual that, uh, owns the
assets or, uh, manages thecompany, you see.
But, um, but this is, uh.
Uh, something that comes up, Isee it again and again in
agreements is the, uh, indemnityclause.
(18:30):
Like for instance, uh, here inVail, Colorado, we a lot of
times hire people to plowdriveways and during the
wintertime, which most of us doin our neighborhood.
I got the, uh, agreement fromthe guy, small businessman in
plows the driveway.
Well, basically it had theseindemnity clauses and if you
(18:51):
took the meaning of the contracthe sent is that if he was
driving the couple miles on theroad up the hill to my property
and ran, ran over somebody andkilled them, I would be
responsible.
Because, uh, the, uh, he was onthe way to do the job at my
house, you see?
And so I'm just saying this,these clauses like this are not,
(19:16):
they're not just in thecontracting here, but you can
find it in a lot of littlethings like this that, uh, you
know, I don't wanna, I'm gonnapay you to plow, plow the
driveway.
You know, you, you gotta beresponsible for your, any damage
you create.
You know, I'm away here duringthe driveway or something, but
it's, it's kind of, uh, I thinkone thing going on in our
(19:39):
society, and I, I can see ithappening to physicians a lot.
I, I call, call the game passthe liability.
You see where you're trying topass the liability onto somebody
else.
The, uh.
Uh, it was a while back, uh, a aOS had, uh, instructional course
faculty lecture.
(19:59):
I haven't been on it for a fewyears.
I'm not sure what the currentagreement says, but it had some
language that those lecturingfor at the, in the instructional
course, lectures in indemnifythe A A OS against lawsuits.
Should the, uh, a OS get suedbecause you did something like
(20:21):
copyright infringement.
Okay,
Joseph M. Schwab (20:23):
wow.
Joel Matta (20:24):
so I threw a bomb.
What I did is I, I wrote aletter to everybody on the
instructional course lecture andI said, don't sign it.
You know, so I figured if Icould complain, nothing's gonna
happen, but if I throw a wrenchin the works, they're gonna fix
this.
I think I threw a wrench.
They did.
But I was barred from thefaculty that year and, uh, they
(20:48):
were really an, you know, thepresident was angry with me and
everything, but they fixed it,you know, but it, it came out,
the reason they had that clause,I.
That the instructional coursefaculty for a OS and we're all
members of a OS, keep that inmind.
We are a a OS, the instructionalcourse faculty.
We had to indemnify our ownentity because this was a demand
(21:13):
put upon a a OS by the insurancecompany for a OS.
So basically, the insurancecompany was requiring that the
insured indemnify them.
Part of the reason they did thisis they have been sued over a
copyright infringement thing.
I didn't think somebody in theirinstructional course handout had
made photocopies of some bookchapters or something, you see?
(21:38):
And they, they got ensued.
So now they, their solution wasto tell the.
Faculty, the a OS members toindemnify the A A OS, you know,
and that was basically toindemnify the insurance company.
See?
So some of these things you canimagine happening, like, uh,
(21:58):
maybe copyright infringement orthe thing I'm talking about, the
guy plowing the driveway or thesmall companies.
And I'll show you one example, Ithink later on too, that I was
asked to sign indemnity anddidn't do it.
Okay.
We can.
So anyway, I don't think youshould provide unlimited
(22:18):
indemnity to any individual orentity you contact with.
I've of these indemnity clauses,I've gotten a couple of the big
companies to take'em out oftheir contract.
Um, consulting fee for serviceagreements.
Uh, I mentioned this a littlebit, but you're paid for your
time, so you wanna give up yourIP for, for free.
(22:40):
You know, and this is kind of achoice, you know, I mean, you're
not incurring liability, but.
You just have to decide is whatthey're paying you per hour, uh,
you know, worthwhile that yougive'em IP to help develop
products Or is the IP a separateitem?
I like to keep the IP a separateitem from time, you know, so,
(23:02):
um.
Uh, because a lot of theconsulting agreements that
they're built around, I mean,the reason I have the consulting
agreement with the company is,is more to participate in the
educational venues you see,
Joseph M. Schwab (23:15):
Yeah.
Yeah.
Joel Matta (23:16):
so you can make a choice, try to tailor your
agreement to be focused on theeducational aspects you provide,
not not giving free IP to thecompany.
Joseph M. Schwab (23:29):
So if you're specifically working with a
company on, uh, on, forinstance, a, um, a new, uh,
prosthesis, um, and there'sintellectual property involved,
but there's also your timeinvolved, right?
Your ideas don't come withouttime.
Do you generally try tostructure those contracts that
there is, uh, compensation forboth of those aspects, or if
(23:52):
you're dealing with intellectualproperty, do you ignore the time
component of it?
Joel Matta (23:57):
Yeah, if I'm dealing with, uh, uh, ip, uh, and it's
something to do with the taxlaws too.
You can contact, uh, you know,ask your attorney, ask your
accountant even that if they,uh, let's say you're developing
a new hip prosthesis and they'repaying you hourly to develop the
hip prosthesis, well then, uh,you've, you've already been.
(24:21):
Paid for your ip and then theroyal you receive will probably
be taxable as, uh, regularincome.
Whereas if you just, all yourtime is for free and the whole
transaction is a transaction ofintellectual property, then you
can claim it as a capital gainsbecause, uh, you know, you
(24:41):
traded something you alreadyowned.
For some something else.
So it's actually a capital gainsand the taxation of capital
gains income is of course lowerthan, uh, taxation of regular
income.
Joseph M. Schwab (24:56):
So this might be a case by case basis,
depending on what you'redeveloping.
Huh?
Joel Matta (25:01):
Yeah.
And some of the companies, uh,you can, you can kind of have
it, uh, both ways in a way thatif you, uh, you know, spend, you
know.
Days and many hours over thecourse of a couple years
developing a product.
And the company, uh, nevermarkets a product.
(25:22):
It can be in your contract thatyou are paid for your time, you
know, as if it's a, uh.
Fee for service agreement, yousee?
But if the product actually goesto market and you're gonna get a
royalty on it, you may be betteroff, you're probably gonna be
better off tax wise if you'renever paid, uh, for the time you
spent developing the product.
Joseph M. Schwab (25:43):
Okay.
Interesting.
So there's ways to be flexiblewith those contracts.
Joel Matta (25:48):
Yeah, yeah.
There is.
And, and some of these thingsare maybe cost neutral to the
company, one thing I was gonnabring up too, about the, uh, fee
for service agreements.
A lot of'em have, when you givean educational, uh,
presentation, and you shouldread this part of it, that, uh,
some of them say that, um, the,uh, entity that you gave it for
(26:13):
now owns all of the material.
And it may even have someclauses about IP connected.
The imperial material presented.
It says that it, it may say itowns all the copyrights,
potential copyright to thematerial presented.
You see?
So, um, I.
You probably are gonna wannareword something like that
(26:36):
because this is something youcreated.
I mean, you own most of it.
You, you spent some time, theypaid for you for the time.
But you know, probably as mostof us do, you're gonna resort a
lot of slides.
You're gonna maybe tweak it alittle bit for this particular
occasion, but most of it's stuffthat's.
Come from the knowledge thatyou've built up over years in
(26:58):
orthopedics and, uh, you wannabe able to, to use it.
So, uh, so anyway, if you sign astandard agreement, you may, uh,
not only give up, uh.
You know your time, but youmight give up your ip.
You might give a pre ownershipof presentation materials, and
(27:20):
worse, you might even indemnifythem for use.
Of the materials, like, um, somy suggestion is don't give up
IP for free.
And then also you can allow anon-exclusive license for the
entity to use your presentation.
So yes, after you talk at suchand such meeting, they can use
(27:43):
your presentation, but it's anon-exclusive license.
Uh, they have to do it.
Joseph M. Schwab (27:50):
Hmm.
Joel Matta (27:52):
There was one, uh, some years back and I got the
company to change it.
I won't say the company's name,but, um, they had, uh, clauses
as far as your fee for serviceagreement.
First, any IP or ideas youdisclose, they automatically
own.
And then it goes on further tosay, if they, let's say, take
(28:15):
your idea for a new product, andthey, um.
Make the product and they getsued by some entity, uh, for,
uh, you know, copying somethingor patent infringement.
You indemnify the company forloss, so stole your ip.
Secondly, if they your IP andgot sued for it, you have to pay
(28:38):
all their legal costs.
Joseph M. Schwab (28:39):
Oh my goodness.
Oh my
Joel Matta (28:41):
Yes.
So there was the, the one, uh,company involved.
Uh, it was some years back.
It was, uh, and, um, maybe 15years back, and I called the
other consultants.
I said, did you read theagreement?
Do you know what it means?
They said, no, I didn't read theagreement.
I just signed it, you know, and,uh, so I ended up meeting with
(29:03):
the president of the companyabout this, and finally it got
changed.
The, their initial offer was,uh.
Well, your indemnity is lilimited to a million dollars.
And I said, well, this justshows how stupid your agreement
is.
You pay me 500 and I risk amillion.
You know, I mean, why would I?
So, um, anyway, read theagreement.
(29:27):
Okay then, uh, I was gonna justbring up a maybe to close here,
uh, examples of a couple recentdocuments I was asked to sign.
Okay.
Joseph M. Schwab (29:38):
Yeah.
Let's look at it.
Joel Matta (29:39):
Yeah, here was a, um, I was gonna teach, so I'm a
consultant for the company.
I'm gonna teach at a cadaverlab, and then, um, I get a, uh.
Document that I signed beforethe cadaver lab, and it's
reasonable waiver of liabilityand hold harmless agreement,
which means, you know, if I getstabbed by a knife or you know,
(30:03):
somebody runs a drill it throughmy hand, I'm accepting the risk.
Okay?
But what actually happens isthis, uh, agreement goes beyond
waiver of liability andwholeheartedness.
This says.
I agree to indemnify, defend,hold, harmless.
I've crossed out the companyname for many claims that may
arise from my participation inthis course or another course.
(30:28):
Well, this is potentially arisk.
I mean, you, you are in acadaver lab, okay?
And we got sharp stuff.
We got, you know, knives, we gotpower equipment.
Is it possible for me to.
Hurts somebody you know, or forthem to contract the disease
'cause they're on a knife ordrill that through their hand.
(30:48):
Demonstrate, of course, youknow, you can't sign this.
finally after getting the otherfaculty involved, the company
deleted this clause, but theywere actually also asking the
participants were all being toldto sign this agreement.
You see, and the participantsweren't even getting any
financial compensation.
They're there to learn, and Ican see how they can release
(31:10):
liability, but they, theyshouldn't indemnify the company
and.
Uh, and I'm, I'm putting thename of the company here because
you can find this on theirwebsite.
It's public information and itsays VI Labs.
Agreement to teach or go work attheir lab.
So again, it's called a waiverand release of liability
(31:31):
agreement.
Now it says in the agreement, Iagree to defend indemnify, hold
ticus group harmless, free andclear, glanced to any and all
demands.
Claims, you know, it goes on andon and that's what I mean.
These things go on and on.
So this is a company that's notthat big.
Vitus Labs, you know, and you,you do something in their lab
(31:54):
and hurt somebody and they sueVitus S labs.
You think Vitus slabs not gonnacome after you.
Joseph M. Schwab (32:01):
Interesting.
So what do you think they meanby defend here?
I, I'm kind of curious aboutthat.
Joel Matta (32:07):
Well, that means, uh, I interpret as a legal
defense.
You see,
Joseph M. Schwab (32:13):
Yeah.
Joel Matta (32:13):
you're gonna have to do a legal defense, you see?
And so the thing that comes upis, uh, let's say, but the
essence of this is too, let'ssay, uh, somebody at your table
said, uh, you know, you.
Let's say it's a spurious,stupid lawsuit.
(32:35):
You know, like they said, the,the individual claims, well,
you, uh, you know.
Stressed me out.
You've applied great stress thathas caused me anxiety for weeks
afterwards by belittling meduring the lab or something.
Okay, so it's a stupid suit.
It isn't gonna go anywhere whenyou indemnify.
(32:56):
So you're, you're indemnifyingthem against all claims demand.
So even if it's somethingstupid, indemnify means you're
gonna pay the legal costs.
Joseph M. Schwab (33:07):
Right.
Joel Matta (33:08):
They had to get their attorney involved to
defend it or something, youknow?
So So there, there are probablysome of the big companies
probably not gonna go after you.
I think something like size ofTicus Labs, potentially they
could, you see, um, the um, uh,stuff like that going on.
(33:30):
Okay.
Now.
I'll just get a, I've got onemore, just example.
So there was, uh.
I was asked before one of thebig meetings to come early.
We were gonna have like aseveral hour session teaching
anterior approach lectures onanterior approach.
This was, uh, initiated by acompany that wants to sell
(33:50):
drapes for anterior approach.
So my job show up, give alecture, they're gonna give me a
fee for giving a lecture.
I'm not gonna endorse the drape.
I'm just gonna talk about how Ido an your approach, but.
In order to give the lecture,I'm given a, uh, consulting
agreement with, uh, indemnityprovisions also, uh, that, uh,
(34:14):
IP provisions that, uh.
You know, it could extend, I'minvolved in anterior approach,
you know, so I mean, if I wannadevelop some drape with somebody
else, you know, could, thiscould be sticky, you know.
And then also that, uh, thepresentation materials they own,
(34:35):
uh, they claim ownership.
And I indemnify'em for use of mypresentation materials.
So this is just to give alecture, but, uh.
Anyway, I crossed out thecompany name.
I won't go into it, but justkind of how some of the stuff
reached consultants, indemnityconsultants, shall indemnify,
defend, hold, harmless, uh,company, and its shareholders,
(34:58):
directors, affiliates, officers,employees, representatives, XI
against all was liabilities,damages, demands, claims, suits,
actions cause of cause ofaction, costs and expenses of
any kind of a third party claim.
You know, so this is this tip,pretty typical language.
And then, uh, the, um, IPsection, intellectual property,
(35:23):
all ideas, inventions,discoveries, designs, prints,
plans, data improvement,derivative.
So if you under improve on theirthing or they claim you derived,
uh, this is all owned by the,uh.
The entity plus you, uh,indemnify'em for using your
(35:43):
stuff.
So
Joseph M. Schwab (35:44):
it's easy to see, just reading this language,
why so many people would want toskip this over, right?
I mean, it's just, it's soobtusely written and, and can be
difficult to parse through forsomebody who's not as used to it
as you are.
Joel Matta (35:59):
Right.
Yeah.
And consultants shall withoutfurther consideration, disclose
all inventions promptly toassign inventions to cooperate
and do all things necessary tosystem.
You know, it's like I.
I'm just gonna show up and givea talk.
You know, I'm talking aboutAngel approach.
I don't know, I don't even knowwhat your product is.
I'm not gonna sell it, you know,uh, you know, it's just, uh, it,
(36:25):
it goes on and on.
But, um, anyway, so just to kindof sum up, read the agreement, I
say don't accept liability,especially, don't agree to
indemnify entities.
Consider ip, you know, is feefor service enough for you or.
I do wanna protect your IP andof course, consider legal
(36:46):
counsel and, uh, at our IHF 2025meeting, appetite for
disruption, which I have ofcourse, uh, June 6th to 7 20 25.
Uh, I'd say a 10 to hf.
We want you to, and there youcan meet and ask questions with
(37:06):
Theresa Ford.
She's my attorney for a numberof years.
Uh, with the contracting, lookat the elements of contracting,
and she's gonna be in the AHF,uh, exhibit area.
She's gonna have a desk.
She's gonna answer questions,uh, give information free of
charge.
Uh, another thing I didn'tmention in the presentation is
(37:27):
the issue of compliance, whereashis Department of Justice
regulations.
That, uh, government orcontracting with companies,
usually the big companies arepretty up on this.
You don't get into trouble, butyou can, I end up ident, uh,
contracting with a littlecompany that maybe isn't, uh, up
on compliance and potentiallyget, uh.
(37:51):
You don't wanna get in troublewith the DOJ, but that's what a
client's about.
And a good attorney will helpyou main, make sure your
agreements are compliant with,uh, uh, department of Justice
guidelines.
Also,
Joseph M. Schwab (38:05):
And Theresa, uh, who's gonna be at the AHF
where does she practice out of?
Joel Matta (38:09):
uh, she practices and she's now in the state of
Washington.
Outside Seattle.
She started in Texas, down inHouston.
But she has, uh, a number ofclients all over the country and
communicates by, uh, like youoften do with attorney's email
and phone.
And, uh, if somebody specializesin.
(38:33):
Physician contracting.
I'm sure there's other attorneysout there too, but I mean, she's
known in the industry, so ifshe, uh, is in discussion with,
uh, somebody at the big implantcompanies, they know who she is
and that she's knowledgeable in,in this area.
Joseph M. Schwab (38:50):
you know, we do such, We have such an
intersection of, of innovation,technology, industry and
surgeons at the AHF meeting ingeneral.
It's gonna be fantastic to haveher there as a resource.
Joel Matta (39:02):
I think so.
Yeah.
Everybody should stop by, sayhi, and if you have any
questions.
Joseph M. Schwab (39:07):
So Joel, it sounds like if I'm hearing you
correctly, like in a lot ofareas in contracting, you are
your biggest advocate.
Is that right?
And then secondarily, you know,have somebody who can advise you
if you don't know what thelanguage means.
Joel Matta (39:25):
Yes, that's correct.
Yeah.
I mean, you have to be anadvocate.
Uh, sometimes, uh, talking toTheresa, she gets a little
frustrated with some of herclients because she thinks they,
they give in too easily.
Like they, uh, say, well, it's,they're not gonna enforce that,
or, yeah, we can, I'll sign it,no problem.
And, uh, the, um, it'ssurprising sometimes.
(39:49):
I mean, I'm, uh, you know,better.
Better known, obviously, than alot of the young surgeons who
are going to be involved incontracting.
But still, you have to, don't beafraid to speak up and question
things in a contract or justsay, you, you can't do this.
You know, like, um.
(40:11):
Good.
I would personally, I guess I'mon a little, uh, mission that
I'd like to see these indemnityclauses just disappear because,
uh, they're basically nonsense.
You know, individuals can'tindemnify these big companies
and it's, um, not, uh, good foryou to risk your and tire net
(40:34):
worth over something like, uh,going to a cadaver lab to teach
or learn.
Joseph M. Schwab (40:40):
Yeah.
Which is a, can be a, atremendous career builder for a
young surgeon.
Um, I, I do think it's gotta bedifficult for some young
surgeons in practice who aren't,you know, don't have the
reputation of a Joel Matta, likeyou said, um, are gonna feel
some pressure to accept some ofthese clauses, um, that, you
(41:03):
know, uh, in theory won't putthem at risk.
But like you said, what'swritten in the contract is
what's written in the contract.
Joel Matta (41:10):
Yeah, I think you're absolutely correct, Joe.
And that's, uh, when I'm talkingabout this game, they call pass
the liability.
I think we're targets, you know,we're targets because acting as
an individual, you know,sometimes it's difficult to say,
do we really have power against,uh, some big company?
You know.
Joseph M. Schwab (41:30):
Yeah.
Joel Matta (41:31):
And, uh, and they can just say, well, screw that
guy.
We'll get somebody else.
So it is a, a little difficulty,but I think maybe just bringing
up some of these questions and,uh, you know, companies that.
You know, in the contractingprocess, be it a publisher, be
it an implant company, be it,you know, some other, some
(41:55):
commercial entity, if they keephearing this again and again,
you know, I, I think, I thinkit's can potentially disappear
or change.
Joseph M. Schwab (42:04):
So is there any room for just saying, as
surgeons, maybe we just don'twork with companies anymore, or
is that something that, um, youknow, doesn't do us good in the
long run?
Joel Matta (42:18):
I'd like to think that I've, uh.
Made an important contributionto, uh, human health and
wellbeing by working withcompanies that, uh, getting, uh,
you know, beneficial productsavailable, uh, for use in
medicine, I think is one way tomake a contribution to medicine.
(42:41):
So, um, you know, I.
I'm, I'm not in favor ofstopping to work with companies
or commercial entities.
It's been, and I think it's alittle bit sad in the way that,
uh, sometimes, um, it's almosttalked about, like, it's, it's
shameful.
You're making money fromproducts or something, or it's
(43:04):
shameful.
You're working with com.
This, there's kind of thislittle undercurrent I sense
sometimes, you know, but, um, Ithink it's actually, I.
Important function.
You know, and I, I believe incapitalism and medicine.
I think capitalism advancesmedicine.
I think the for-profit aspectsof it are very important in
(43:26):
advancing innovation andproducts.
Joseph M. Schwab (43:31):
Joel, I, I couldn't agree with you more,
and I, I can't thank you enoughfor the time that you've shared
with us and for being, um, forbeing the pioneer, first of all,
in the anterior approach, butnow being the pioneer in the AHF
podcast series on cut for time,I, I couldn't think of anyone
better than to give us our firsttalk in this series.
Joel Matta (43:52):
Well, I'm still a little miffed'cause I got cut,
Joe.
You know, I mean.
Joseph M. Schwab (43:56):
That's fair.
That's fair.
I can't do anything about, well,I suppose I could do something
about that.
Joel Matta (44:03):
I'm happy we're doing this.
And I think the, uh, uh, youknow, what you've been involved
in we wanna do is make the, uh.
AHF website, uh, educationalsource also.
And, uh, whether or not you callthis talk education, I think it
certainly, uh, should getpeople's mind working.
You know,
Joseph M. Schwab (44:24):
Yeah.
Well, thank you so much, Joel.
I really appreciate having youon this episode of the AHF
Podcast.
And for our listeners out there,please take a moment to like and
subscribe.
You'll be helping us find morepeople just like you to share
our content.
And as a subscriber, you canalways drop an idea for a topic
(44:47):
or any feedback you'd like inthe comments below.
You can find the AHF podcast onApple Podcasts, Spotify, or in
any of your favorite podcastapps, as well as in video form
on YouTube slash at anterior hipfoundation, all one word.
New podcast episodes come out onFridays.
(45:07):
I'm your host, Joe Schwab,asking you to keep your hips and
contracts happy and healthy.
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