The Intersection Between Non-Solicitation and Patient Abandonment
Common in employment agreements, non-solicitation clauses prohibit an employee from soliciting an employer’s clients, staff, and business contacts to do business with another firm or company. For healthcare providers looking to transition to a new practice or business, restrictions on the provider’s ability to solicit his or her patients to continue treatment at a new location can raise concerns that the provider will be liable for patient abandonment. By better understanding the limits of non-solicitation and patient abandonment claims – knowing what these legal concepts mean and do not mean – providers can ensure a smoother transition in making their next career move.
Negotiations over non-solicitation restrictions in employment agreements can play out like a game of tug of war. Pulling in one direction, the employer will seek to draft the non-solicitation clause broadly to protect against internal poaching of its clients and staff. Pulling in the other direction, the employee will seek to narrow the non-solicitation clause in an effort to limit its impact on future work opportunities.
In the healthcare context, this tug of war can implicate another stakeholder: the patient.
Physicians and other healthcare providers have a duty not to expose their patients to undue harm by ending the treatment relationship in an abrupt, disruptive manner. Doing so could subject the provider to claims of abandonment by the patient. In Illinois, as in many other states, patient abandonment is not only a form of malpractice; for physicians, it is also grounds for disciplinary action against one’s license.
At Jackson LLP, our healthcare provider clients frequently consult us with concerns over whether the non-solicitation provision in their employment agreement will effectively force them to abandon their established patients, in violation of their legal and ethical obligations. Common questions include: What can I tell my patients when I’m leaving my employer? Can I tell them where I’m going? And can I take a copy of my patients’ records with me, in case they need care from me in the future?
Navigating the line between non-solicitation and patient abandonment can be challenging. While the analysis will always depend on the particular circumstances involved, we’ve found that a useful starting point in working through these issues is clarifying what exactly “non-solicitation” and “patient abandonment” mean – and what they do not mean.
“Non-Solicitation” Does Not Mean “No Contact”
Non-solicitation clauses are a type of restrictive covenant (meaning legally that they forbid a party from doing something). They are often related to, but distinct from, non-competition clauses, or “noncompetes” – another type of restrictive covenant common in employment agreements.
Typically, a non-competition provision prohibits an employee from joining or starting a competitor business within a designated geography and for a certain period of time. By contrast, a non-solicitation provision prohibits the employee from soliciting the employer’s clients and personnel for other business or work opportunities. In the healthcare setting, non-solicitation restrictions can extend to patients and other providers who refer patients to the practice or business. Thus, when taken together, non-competition and non-solicitation clauses act to prevent an employee from “stealing” the employer’s clients and staff and starting a new venture in the same industry or field.
For purposes of interpreting non-solicitation provisions as they apply to patients, “solicitation” is generally understood as requiring a targeted, affirmative act by the employee to convince a patient to obtain services from somewhere other than the employer’s practice. General advertisements, mailings to certain zip codes, and routine marketing activities normally will not meet this standard. Nor will purely personal communications between the employee and patient. Even if a communication is arguably solicitous, it might fall outside the scope of a non-solicitation clause if it pertains to services not offered by the employer. Thus, for example, a provider who leaves a dermatology practice to join a medical spa that performs cosmetic procedures not available at the dermatology practice might not be precluded from soliciting that practice’s patients for services at the medical spa.
As these examples show, “non-solicitation” does not mean “no contact.” There is potentially a range of activities and communications that can continue between a provider and patient after the provider’s employment ends without resulting in breach of the non-solicitation restriction.
On the other hand, a notice directed to specific patients that informs them that the provider is leaving the employer’s practice and identifies a new practice where the patient can receive the same or similar services is much closer to the line of solicitation. Yet, for many providers this type of notice is necessary to formally terminate the patient-provider relationship and mitigate the risks of patient abandonment.
If the provider is unable to negotiate a carve-out in the non-solicitation provision to directly inform patients about his or her departure, alternatively, the provider can make arrangements to have the practice send a notice to patients about the provider’s departure. Indeed, this may be appropriate where the employment agreement defines patients treated by the employee not as the employee’s own patients but as the employer’s. Rather than include the provider’s new practice location, the notice may note another provider within the practice who can continue to treat the patient. While this approach may not be ideal from a business standpoint, to the extent it limits the information that might prompt patients to seek the provider’s services at a new practice, it would at least inform the patients that the provider is not responsible for their further care. In this way, the provider might avoid claims of patient abandonment.
Even if a non-solicitation provision does not restrict a provider’s right to notify patients of his or her departure, the provider might still be constrained in accessing patients’ addresses and other information. That’s because the use and disclosure of patient information, including patients’ medical records, are often limited by another form of restrictive covenant in employment agreements: confidentiality clauses. These provisions usually define patient information and records generated during the provider’s employment as the practice’s property, which is confidential and therefore not to be used or disclosed following termination of the provider’s employment. Contrary to common misconception, the federal Health Insurance Portability and Accountability Act (“HIPAA”) and similar state privacy and patient medical record access laws do not give providers an entitlement to access and obtain copies of patient information and records of their employers.
The Risks of Liability for Patient Abandonment Are Highly Dependent on the Nature of a Provider’s Specialty and Services
As with construing non-solicitation provisions, a clear understanding of the definition of patient abandonment can help inform what a provider should and should not do to steer clear of liability. Whereas a non-solicitation provision is usually triggered only by affirmative action, patient abandonment is more prone to arise from the failure to properly act.
A threshold requirement for a malpractice claim premised on patient abandonment is that there is a patient-provider relationship. Once the relationship is formed, Illinois courts have acknowledged that abandonment will occur when the provider “refuses to treat [the] patient [while] needing further treatment, without giving the patient a reasonable time to find substitute care.” As a result of such abandonment, the patient must suffer injury.
When one parses the elements of patient abandonment, it becomes clear that a provider is not susceptible to an allegation of patient abandonment each time a relationship with a patient terminates. Thus, just because a provider ends his or her patient relationships following termination of employment with a practice – and is precluded by a non-solicitation clause from soliciting the patients for further treatment – does not mean that the provider is unduly at risk of liability for patient abandonment.
A critical limitation on patient abandonment claims is the need for “further treatment.” Many healthcare practitioners – for example, providers who staff emergency departments, hospitalist programs, and urgent care centers – render care that is episodic in nature, where there is not an expectation that related services will be performed by the same provider in the future. To the extent these types of providers are subject to a non-solicitation clause in their employment agreement, they are at no greater or lesser risk of exposure to patient abandonment claims; their specialty and narrow scope of services naturally limit their risk of such liability.
For those providers whose treatment relationships are more continuous in nature (e.g., surgeons providing post-operative care to a patient following a procedure), patient abandonment liability can be limited by furnishing notice of termination of the treatment relationship. The key is that the notice affords a “reasonable time to find substitute care.” As noted above, a non-solicitation restriction may prevent the provider from issuing such notice directly, but the employer can give the notice on the provider’s behalf. To the extent possible, the provider should try to time his or her termination of employment so that patients can make arrangements to ensure continuity in care.
In Illinois, a Non-Solicitation Clause That Would Require Patient Abandonment Would Likely Be Unenforceable
As the above discussion shows, solicitation and patient abandonment claims are not limitless. A non-solicitation clause only prohibits solicitation. If a non-solicitation were drafted or construed so broadly to forbid any treatment whatsoever of patients from the employer’s practice, then it would likely be unenforceable in Illinois.
The case of Bloomington Urological Associates, SC v. Scaglia, 686 N.E.2d 389 (Ill. App. 1997) supports this understanding. That case involved a dispute over a noncompete in a urologist’s employment agreement which provided that, for 12 months following termination of his employment, he would not engage in the practice of medicine within a 50-mile radius of the employer’s medical practice in Bloomington, Illinois. Although he did not directly treat any patients within the restricted geography, the urologist did perform various administrative functions relating to his practice out of a home office in Bloomington, including taking phone calls from existing patients with treatment-related questions. According to the urologist’s former employer, these activities violated the noncompete.
The court, however, disagreed. Declining to “decide precisely what ‘the practice of medicine’ means in the context of a restrictive covenant,” the court concluded that, “in this context, [the practice of medicine] cannot include telephone inquiries from existing patients to a physician (or his employees acting as conduits of information) or responses to those patients – either in the form of recommending treatment or prescribing medication. In the age of modern technology – where telephones and beepers travel with an individual and telephone calls can be automatically forwarded to another line – it simply makes no sense to place significance upon where a physician happens to take phone calls.”
Notably, the court added that physicians’ obligations not to commit patient abandonment also militated against interpreting the noncompete as the employer proposed: “To conclude that telephone inquiries from existing patients to their physician constitute the practice of medicine in the context of a restrictive covenant would effectively force a physician to neglect or abandon his patients whenever they telephone or page him with medical-related questions, concerns, or emergencies at a time when he happens to be in the restricted geographical area.”
As this case underscores, the interests of an employer in enforcing a restrictive covenant must be balanced by a provider’s duty not to abandon his or her patients. Ultimately, a patient always has the right to seek out a provider of his or her choosing. Given the duty not to abandon one’s patients, a provider who has not solicited a patient cannot, and should not, be stopped from providing treatment to that patient.
Contact One of Jackson LLP’s Experienced Healthcare Attorneys to Assist You in Your Transition to a New Practice or Business
In our experience at Jackson LLP, rarely are any two non-solicitation clauses alike. Whether you are a healthcare provider considering a new employment agreement with a non-solicitation clause, or a provider wondering how the non-solicitation terms in your current employment agreement will affect your future opportunities, we can assist you in assessing your rights and responsibilities. To schedule a complimentary phone consultation with one of Jackson LLP’s healthcare attorneys, call our office at (312) 985-6484 or click the button below.