David Clark Quoted in “Did Your Doctor Disappear Without a Word? A Noncompete Clause Could Be the Reason”

The New York Times

David J. Clark, Member of the Firm in the Litigation and Employment, Labor & Workforce Management practices, in the firm’s New York office, was quoted in The New York Times, in “Did Your Doctor Disappear Without a Word? A Noncompete Clause Could Be the Reason,” by Michelle Andrews. (Read the full version – subscription required.)

Following is an excerpt:

Contracts with so-called restrictive covenants are now common in medicine, although some states limit their use. Noncompete clauses — common in many commercial sectors — aim to stop physicians and other health care professionals from taking patients with them if they move to a competing practice nearby or start their own. But what may be good for business can be bad for patient care — and certainly disquieting for those whose doctors seem to simply disappear.

One survey of nearly 2,000 primary care physicians in five states found that roughly 45 percent were bound by such clauses.

Continuity of care is important, doctors say, especially for patients with ongoing medical issues. Cutting off access to a doctor is different from disrupting someone’s relationship with a favorite hairstylist or money manager, they say. …

Whether noncompete clauses are binding in health care — especially when patient care is disrupted — is a point legal scholars debate. In general, to be enforceable, the agreements must be reasonable and narrowly drawn so that they protect an employer’s legitimate business interest but don’t unduly restrict a doctor’s ability to make a living.

Courts may weigh whether enforcing a noncompete clause would create a physician shortage in a particular region or specialty. The guiding principle is patient choice, said David J. Clark, a partner in the New York office of the law firm Epstein Becker Green who has analyzed state noncompete statutes in health care.

“No court is going to deny a patient who wants to go see a doctor of her choice,” Mr. Clark said.  …

Several states, including Massachusetts and Colorado, that allow noncompete clauses in employment contracts generally won’t enforce them against doctors, according to Mr. Clark’s analysis.

Other states, such as Texas and Tennessee, place limits on the agreements. In Texas, for example, a noncompete pact must allow doctors to have access to a list of their patients in the past year and access to their medical records, among other things, Mr. Clark found.