Don’t ask, don’t tell

Your contract’s non-solicitation provision guides your communication when it comes time to leave the practice.

By Bruce Armon | Fall 2019 | Legal Matters

 

Most employers and employed physicians understand their employment contract may include a non-compete clause prohibiting the now-former physician employee from “competing” against the now-former employer within a certain geographic radius for a certain period of time.

One of the issues often overlooked by employers and employed physicians are the scope of “solicitation” activities that may occur following the separation.

Don’t tell patients

As a general principle, the patient always has the choice of who should be the patient’s treating physician. The challenge for you is what you can and can’t tell a patient before or following your departure. Your employment contract may include specific language regarding the permitted “solicitations” that can and can’t occur, such as:

During the term of the Agreement and for two years following the termination of physician’s employment, physician shall not directly or indirectly solicit any patient of employer treated by physician during the final two years of physician’s employment.

Depending on your specialty, you may have regularly scheduled appointments with the patient, including visits that are scheduled on dates following your planned departure from the practice.

Be very careful to avoid saying, “I won’t be here for your next appointment.” Your employer may regard such a statement as an “indirect” solicitation because you’re basically inviting the patient to reply to this statement by asking, “Why not? Are you leaving the practice? How do I get in touch with you?”

This is exactly what the practice has instructed you not to do. You are best served by not saying anything to the patient, even if you know the patient has a follow-up appointment scheduled following your departure date.  

The non-solicitation clause in your employment contract may also include language stating, “The physician may not send announcements or publications regarding a new office or affiliation to the employer’s patients.” Language like this can be tricky to navigate and may have unintended consequences.

Ideally, you and the practice both agree on the “script” that the practice will communicate to any patient who learns that you’re leaving or have departed the practice.

The script may be as simple as:

Thank you for asking about Dr. [Name]. Dr. [Name] is [leaving our practice] or [no longer with our practice]. We wish Dr. [Name] the best. We are happy to continue to care for your medical needs. If you would like to contact Dr. [Name], call [phone number]. Thank you.

The practice may use a printed card to share this information or instruct all front desk staff and others who interact with patients to follow this script. The staff should not deviate from the script, and ideally you and the employer agree how long post-separation the script will be used.

An exception to the blanket non-solicitation clause may be appropriate if you had an established patient base that followed you to your current practice. You may be able to grandfather those patients who have historically followed you to ensure there can be direct communications with them.

As a practical matter, a patient often has the ability to independently locate you even if your former employer makes it more difficult for patients or claims to have no knowledge of your new practice location.

Your new employer would be wise to publicize your arrival in various forms of media—without mentioning the name of your former employer. An employment contract may specifically prohibit you from mentioning your former employer.  

A patient who elects to follow you to a new employer will have to complete a patient authorization to forward the patient’s medical records to a new employer. There very well may be a charge for the copying of these records, which is often governed by state law. Be aware there may be a delay in transferring the patient’s medical record; plan accordingly to ensure no interruption in patient care or adverse consequences.

From the practice setting’s perspective, there needs to be an awareness and sensitivity to not creating a patient abandonment situation. If the departing physician is the only physician in the practice setting with the ability to appropriately treat the patient (for example, you’re the only physician in that specialty in a multi-specialty practice), the practice must make arrangements to appropriately care for patient needs—which may include a referral to you. State law may describe what constitutes abandonment.  

Don’t invite staff to come with you

In addition to confronting patient non-solicitation issues in your employment contract, your contract may also include a staff non-solicitation clause that prohibits you from employing, engaging, contracting or soliciting the services of any employee of your former employer to work with you at your new practice. For some physicians, not having the ability to solicit or hire staff as colleagues in a new venture can make a professional transition even more difficult. Staff, like patients, have the freedom to work where they choose. However, if your employment contract includes a staff non-solicitation clause, be very careful about the outreach to staff asking them to follow you to your new employment setting. 

Start fresh on professional relationships

The third bucket that can be included in your non-solicitation clause, besides patients and staff, are for the practice’s professional relationships. Professional relationships could include referring physicians, professional advisors, nursing homes, surgery centers, ancillary facilities and any other entity with whom your practice setting regularly interacts.

Essentially, your current practice setting is instructing the departing physician to start “fresh” without the benefit of any of the professional relationships that helped make the practice setting successful.

Non-solicit clauses in your employment contract are just as if not more important than a non-competition clause. Understanding the impact of the language in the non-solicitation clause is critical. When departing from a practice, be careful to frame responses so that interested people don’t ask how they can find you in your new practice setting in a way that causes you to violate the terms of your employment contract and invite a dispute.

Bruce Armon is the chair of the health law practice at Saul Ewing Arnstein & Lehr LLP.He regularly provides legal advice to physicians and medical groups, hospitals and academic medical centers, and speaks to audiences about health care legal issues.

 

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