Dissertation/Thesis Abstract

A Bitter Pill to Swallow: The Negative Impact of Non-Compete Clauses in Physician Employment Contracts
by Leichter, Paola J., LL.M., The George Washington University, 2015, 69; 1596166
Abstract (Summary)

In today's modern world of medicine, most, if not all, physician employment contracts contain non-compete clauses. Non-competes, also known as restrictive covenants, essentially function as restraints on trade. Non-competes act as a restraint in the medical arena by preventing physicians from taking patients with them when physicians begin new employment or, alternatively, depart on a self-employment basis. They also restrain physicians from competitively practicing medicine in a predetermined geographic area for a specified period of time.

Restraints on trade have a long noteworthy history. One case that emphasized the importance of having checks and balances on such restraints is Lochner v. New York. While not relating to the practice of medicine and non-compete provisions, Lochner is nonetheless an important case to the analysis of non-compete provisions in physician employment contracts. Lochner is necessary to the discussion of non-competes because it emphasizes how the history of restrictions on restraints on trade have changed so that now private parties, and not just the government, are allowed to implement restrictions. Additionally, these restrictions vary depending on the profession and where professionals practice.

Non-compete provisions are found in contracts created by both small private medical practices, as well as bigger entities, such as hospitals and managed care organizations. Therefore, this is not an issue limited to the size of the practice. The physician-patient relationship has gradually become more and more of an impersonal one due to managed care organizations and legislation such as the Affordable Care Act (ACA). This does not, however, mean that physicians and patients approve of this interference and push towards an impersonal relationship. Thus, if patients are unhappy with the resulting impersonal relationship from managed care plans and legislation, patients may suffer further from these non-compete clauses interfering with the patients' utilization of physician services.

These clauses hurt not only the physicians trying to practice, but also have the capacity to conflict with patient choice in regard to selecting the physician they want for treatment purposes. More importantly, such non-competes negatively interfere with the continuity of patient care. It is for these aforementioned reasons that it would behoove the American Medical Association (AMA) to model its non-compete guidelines after those found in the American Bar Association (ABA), which strictly limit the use of such non-compete provisions in attorney employment contracts.

Indexing (document details)
Advisor: Rosenbaum, Sara
Commitee:
School: The George Washington University
Department: Law
School Location: United States -- District of Columbia
Source: MAI 54/06M(E), Masters Abstracts International
Source Type: DISSERTATION
Subjects: Law, Medicine, Public health, Health care management
Keywords: Non-compete clauses, Physician employment contracts
Publication Number: 1596166
ISBN: 9781321960624
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