MDNews - Minnesota

June 2015

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Can an Employer Restrict a Physician's Right to Practice or Continue to Treat Established Patients after the Employment Relationship Ends? By Lawrence P. Schaefer, President and Owner, Schaefer Halleen LLC P HYSICIANS IN DIFFICULT employment relationships often feel trapped by non-compete and non-solicitation a g reement s wh ich pu r por t to restrict subsequent practice opportunities and prohibit the "solicitation" of cur- rent and past patients. As a result, physicians sometimes remain in these relationships far longer than they would if these restrictions weren't in place — sometimes with disastrous results. This article demonstrates how these restrictions are sometimes illusory, and that the "keys" to these "hand- cuffs" are often readily available. T h e l a w i n Minnesota recognizes that physician mobility and continuity of patient care are to be valued and preserved. Such restrictions are thus heavily disfavored and only enforceable in lim- ited circumstances. The American Medical Association (AMA) Code of Medical Ethics disfavors non-compete agreements, stressing how these restrictions hamper competition, disrupt continuity of patient care and, if enforced, can potentially deprive the public of access to much-needed medical care. The AMA, however, does not state that these restrictions are unethical per se, but instead concludes that they are unreasonable if they "fail to make reasonable accommodation of patients' choice of physician," thus essentially adopting a reasonableness standard similar to how courts generally view such post-employment restrictions. 1 This reasonableness standard, how- ever, is tailored to unique issues that arise in the medical field. In particular, courts thoughtfully consider factors such as whether enforcement of the non-compete will lead to a physician shortage in underser ved regions or reduce specialist coverage that could limit or impede patient choice. For example, in Board of Regents v. Warren, 2 the Iowa Court of Appeals upheld the refusal to enforce a restrictive +++++++++++++++++++ + +++ + +++ +++++++++++++++++++ LEGAL EASE ❯ 1 2 | Minnesota MD NEWS ■ M D N E W S . CO M

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