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covenant against an oncologist on the grounds that the geographic region of the restriction (covering the area where he practiced at the University of Iowa) was far too broad and there was a documented shortage of oncologists in Iowa. The oncologist's clinical practice was based at the university and covered a wide geographic area. He left this practice to assume a similar position in Cedar Rapids, at an oncology clinic less than fifty miles away from the University. Nonetheless, the Court held that the public interest in hav- ing access to experienced oncologists outweighed the University's interest in restricting this oncologist from work- ing at a competing clinic. A different result, however, would likely have been reached if there was no evidence of a shortage of qualified oncologists in that geographic area. 3 Even when there is no evidence of specialist shortage in the area, the geographic scope of the restriction must be reasonable in order to be enforceable. 4 In a similar vein, if a non-competition clause purports to restrict a physician from performing any medical services for a competitive orga nization, or purports to cover entities that are not properly considered competitive, this will likely be considered overbroad and unenforceable. 5 Solicit at ion of c u r rent pat ient s is another challenging area, as this restriction strikes at the heart of the physicia n-patient relationship a nd the recognized societal importance of continuity in patient care. Courts appropriately recognize that goodwill a ssociated w it h ret a ining cur rent patients belongs to the owner of a medi- cal practice, and a departing physician cannot destroy this goodwill by actively courting current clients in establishing a competing practice. 6 This protectable business interest, however, will likely not extend to past patients, 7 nor will it allow a past employer to interfere with a patient's choice to follow the physician to the new practice by with- holding information or records. Patient information belongs to the patient, not the clinic, and therefore any patient's request to have these records transferred to a new provider must be honored. However, the line between solicita- tion and simply informing patients of a new practice or employer ca n be difficult to navigate. As a general rule, notification of leaving an existing employer is permissible, as is providing information about the new practice. The impetus for following the departing physician, however, must come from the patient and clearly be the patient's choice. If this has occurred, any solicita- tion claim will likely fail. Finally, in addition to generally being disfavored, many defenses to enforce- ment of restrictive covenants can arise if the physician was wrongfully termi- nated from the practice (creating an "anticipatory breach" defense) or if the restrictive covenant was imposed some- time after the employment relationship started and no additional benefit beyond continued employment was offered to sign the agreement (creating a "lack of consideration" defense). Consultation with experienced counsel is critical to identifying these potential defenses and appropriately limiting the enforceability of these restrictions to only what could be considered reasonable under the circumstances. Physicians, therefore, should not feel trapped by these restric- tions, as what may appear on the surface to be an obstacle to moving on may actually be an unenforceable attempt to restrain your practice and the continuity of your patient relationships. Lawrence P. Schaefer is the owner and president of Schaefer Halleen LLC. As one of the most recognized plaintiff 's lawyers nationwide, Schaefer has earned the respect of judges and other lawyers for his thorough and ag g ressive client advocacy in negotiation and litigation. He concentrates his practice represent- ing medical professional s and other employees who are adversely af fected by employment discrimination practices or unfair and unwar ranted discipline or termination. You can reach Schaefer directly at 612-294-2601 or Lschaefer@ schaeferhalleen.com. ■ References: 1. See Kari Family Clinic v. Bohnen, 349 N.W. 2d 868 (Minn. Ct. App. 1984) (a restrictive covenant is strictly construed against the party seeking injunctive relief). 2. 2008 Iowa App. LEXIS 1192 (Iowa Ct. App. 2008). 3. See Owusu v. Hope Cancer Center of Northwest Ohio, Inc., 2011 Ohio 4466 (Ohio Ct. App. 2011) similar restriction enforced based on evidence that there was not a shortage of qualif ied oncologists). 4. See, e.g., International Eyecare Center, Inc. v. Hayden, 2011 Ill. App. Unpub. LEXIS 615 (Ill. Ct. App. Apr. 7, 2011) (covenant restricting optometrist f rom competing in 20 mile radius is reasonable and enforceable); St. Clair Medical., P.C. v. Borgiel, 270 Mich. App. 260, 266 (2006) (seven mile radius is enforceable). 5. See Lasership, Inc. v. Watson, 79 Va. Cir. 205 (Va. Cir. Ct. 2009) (if a non-competition ag ree- ments attempts to prohibit work for companies not properly considered competitors, it is overly broad and unenforceable); Fox Valley Thoracic Surgical A ssocs., S.C. v. Fer rante, 747 N.W.2d 527 (Wis. Ct. App. 2008) (Court concludes non-competition ag reement was overbroad because, among other reasons, the restriction prohibited surgeon f rom practicing thoracic medicine, in addition to the heart surger y he performed for prior employer). 6. See Saliter man v. Finne y, 361 N.W.2d 175 (Minn. Ct. App. 1985) ("[Minnesota] has long recog nized the uniquely vulnerable goodwill of patients which belongs to the owner of a medical practice."); see also In re St. Clair Medical v. Borgiel, 270 Mich. App. 260, 266 (2006) ("a physician who establishes patient contacts and relationships as the result of the goodwill of his employer's medical practice is in a position to unfairly appropriate that goodwill and thus unfairly compete with a former employer upon departure."). 7. See Shar velle v. Mag nante, 836 N.E. 2d 432, 437 ( Ind. Ct. App. 2005) (Court modif ies non-solicitation to extend only to current clients, excluding past clients). M D N E W S . CO M ■ MD NEWS Minnesota | 1 3

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