Physician non-compete agreements implicate two conflicting public policy considerations: the legitimate business interests of medical practices in protecting against unfair competition and doctors\u2019 ethical obligations with respect to patient care.<\/p>\n
With respect to this second consideration, long term stability in a patient\u2019s relationship with his or her doctor can have an impact on the quality of the patient\u2019s medical care. An argument can be made that non-compete agreements in physician employment contracts run the risk of affecting that doctor-patient relationship.<\/p>\n
The American Medical Association (AMA) takes issue with physician non-competes if \u201cthey are excessive in geographic scope or duration in the circumstances presented, or if they fail to make reasonable accommodation of a patient\u2019s choice of physician\u201d because they \u201crestrict competition, disrupt continuity of care, and deprive the public of medical services.\u201d\u00a0The AMA thus does not entirely reject physician non-competes, but instead identifies potential concerns. These AMA guidelines are merely \u201cguidelines\u201d and are not binding on physicians or medical practices.<\/p>\n
Competing with this concern for patient care is the economic interests of medical practices. Medical practices are businesses that wish to be profitable. Such businesses have legitimate interests in ensuring that their employees (including physicians) do not compete unfairly.<\/p>\n
States have taken differing views in balancing these interests. Massachusetts, Colorado, and Delaware have enacted statutes which strongly support patient preference and which void non-competes for doctors. Alabama prohibits non-competes for \u201cprofessionals\u201d and has interpreted this term to encompass physicians. However, under many states\u2019 laws, physician restrictive covenants are scrutinized under the same analysis as restrictive covenants for employees in other industries.<\/p>\n
Georgia\u2019s new restrictive covenant law, O.C.G.A. section 13-8-50 et seq., does not treat physician non-competes any differently than other non-competes. However, in the 2013-2014 legislative session, House Bill 322 was introduced in the Georgia General Assembly. This proposed legislation appears to be an attempt to address the competing interests involved in physician non-competes.<\/p>\n
The proposed bill declared it against public policy to \u201cimpose unreasonable barriers to patients continuing to use a physician.\u201d Further, it prohibited courts from enjoining a physician from treating a patient who wants to continue using that physician after he leaves his former employment. This bill does not prohibit covered entities from including non-competes in their employment contracts with medical professionals, but it prohibits courts from enforcing those non-competes in a way that prohibits patients from keeping their doctor if the doctor leaves a practice covered by the statute. Similarly, the bill prohibits a court that is adjudicating an action involving alleged theft of confidential information or trade secrets from entering an order restricting a physician from treating a patient who chooses to remain in his or her care after the doctor leaves a practice covered by the statute.<\/p>\n