Take Your Patients to a New Practice? Why Not?

Carolyn Buppert, MSN, JD

Disclosures

August 08, 2019

To submit a legal/professional healthcare question for future consideration, write to the editor at lstokowski@medscape.net (include "Ask the Expert" in subject line).

Question

A clinician who is seeking a new position writes:

"I've been offered an employment contract that says that when I leave, I agree not to 'solicit' patients of the practice. What do they mean by 'solicit'?"

Response from Carolyn Buppert, MSN, JD
Healthcare attorney

Practice owners want to minimize loss of patients when a clinician leaves and joins a practice nearby. Patients have the right to go to the provider of their choice and often want to follow their clinician to the new practice. So, there is an inherent conflict of interest between employer and employee regarding how patients find out where their clinician has gone. The employer wants it to be relatively difficult for the patient to follow the departing clinician, and the clinician wants the transition to be relatively easy. Hence, the contract language about solicitation of patients.

Often, employment contracts do not state clearly what "solicit" means. The term has no generally accepted legal definition in the context of employment contracts, so it is important to define that term in the contract.

Here are some issues to consider:

  • Is the clinician bringing patients to the practice, either through marketing, word of mouth, or previous associations? If so, most likely the clinician will want to reserve the right to take those patients when he or she leaves. When this matter has been litigated, some courts have held that the employee who brings clients should be able to take them when he or she leaves. However, there is no black-and-white rule on this.

  • Does your state regulate patient notification when a clinician terminates practice or leaves an employer? If so, the contract should defer to those regulations. Here is example contract language: "Employer agrees to assist employee as needed to follow requirements of the state's medical board regarding patient notification of discontinuance of clinician practice." This language would be important in a state such as Texas. Here are Texas Medical Board requirements for notifying patients when a physician leaves a practice (Rule §165.5: Transfer and Disposal of Medical Records):

...[W]hen a physician retires, terminates employment, or otherwise leaves a medical practice, he or she is responsible for... ensuring that patients receive reasonable notification and are given the opportunity to obtain copies of their records or arrange for the transfer of their medical records to another physician.

It is the physician who is responsible for notifying patients, by publishing a notice in the newspaper of greatest general circulation in each county in which the physician practices or practiced and in a local newspaper that serves the immediate practice area; placing a written notice in the physician's office; and sending letters to patients seen in the last two years notifying them of discontinuance of practice. Others remaining in the practice may not withhold information the physician needs in order to notify patients. There are exceptions for locum tenens.

Not all states have rules like those in Texas.

  • Does your state have regulations on noncompetition? If so, the contract should defer to those regulations. Some states are more likely to enforce nonsolicitation agreements than noncompetition agreements, and some have found that, in some situations, nonsolicitation is essentially a restriction on competition, so the state's requirements regarding noncompetition agreements apply.

  • What do other providers in your town do to announce that they have changed their practice affiliation? A notice in the newspaper? Announcement on social media? The clinician will want to preserve his or her right to use that method. Or, negotiate for some other terms regarding notification of patients.

In cases where an employer sued a former employee for breaching the nonsolicitation term of an employment contract, some courts held that running an advertisement in the local newspaper is not soliciting. Such an advertisement might read: "Jen Rogers, nurse practitioner, has joined Georgia Medical Group." However, if Ms Rogers downloads the employer's list of patients and calls or writes each patient to suggest that they follow her to the new practice, that is soliciting. It also is a HIPAA violation, according to a case against a nurse practitioner who did that.

How about if the clinician runs into a patient at the grocery store, and the patient asks where he or she is now practicing? Some would say that the clinician can answer without it being soliciting. But what if the clinician is the one who initiates the conversation about his or her new practice? Some would say that is soliciting.

Given that there are no firm rules to guide us on this matter, clinicians and their employers can avoid costly litigation by making sure that "solicit" is clearly defined in contracts and that the employee reserves the right, upon leaving the practice, to take the patients the employee brought to the practice. Here is example contract language:

Employee agrees that during the term of this contractual relationship and for a period of 12 months thereafter, employee will not, in any manner, directly solicit employer's patients or otherwise interfere with the continuation of the relationship between employer and employer's patients. This section shall not prevent employee from announcing his or her new practice location through an advertisement in the local newspaper or posting his/her new practice address on his or her social media page. Should a patient query employee about the employee's new practice location, employee may provide contact information. Employer and employee agree that the attached list of patients are those employee has brought to employer's practice, and therefore, employee has a right to take those patients when employee leaves employer, should the patients want to follow employee.

Neither employer nor employee will be well served by litigating these issues. To prevent costly legal fees, define the terms used in employment contracts.

Julie

Julie

Comments

3090D553-9492-4563-8681-AD288FA52ACE
Comments on Medscape are moderated and should be professional in tone and on topic. You must declare any conflicts of interest related to your comments and responses. Please see our Commenting Guide for further information. We reserve the right to remove posts at our sole discretion.
Post as:

processing....