The Intersection Between Non-Solicitation and Patient Abandonment

Employment contracts may prohibit you from soliciting patients to continue treatment at your new practice location. Such prohibitions raise concerns about patient abandonment. In this situation, what are your rights and responsibilities?

Negotiations over non-solicitation restrictions can play out like a game of tug of war. The employer pulls in one direction, seeking to draft the non-solicitation clause broadly to protect against internal poaching of clients and staff. The employee pulls in the other direction, seeking to narrow the non-solicitation clause to reduce its impact on future work opportunities. In healthcare, 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.

The Challenge: Navigating the Line.

At our healthcare law firm, our clients frequently voice concerns over the non-solicitation provision in their employment agreements. They worry that it will 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?
• 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 poses a challenge. The analysis will always depend on the particular circumstances involved. However, we’ve found it’s always useful to clarify what exactly “non-solicitation” and “patient abandonment” mean — and what they do not mean.

Non-solicitation vs. Non-competition Clauses.

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 “non-competes”—another type of restrictive covenant common in employment agreements.

Typically, a non-competition provision prohibits an employee from joining or starting a competitor business. Such clauses generally cover a specific geographic area and 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 healthcare, non-solicitation restrictions can extend to patients and other providers who refer patients to the practice or business. Thus, non-competition and non-solicitation clauses act together to prevent an employee from “stealing” the employer’s clients and staff and starting a new venture in the same industry or field.

What Counts as Solicitation?

With respect to patients, “solicitation” generally requires a targeted, affirmative act by the employee to convince a patient to obtain services from somewhere other than the employer’s practice. For instance, general advertisements, mailings to certain zip codes, and routine marketing activities normally would not meet this standard. Nor would 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. Say, for example, a provider leaves a dermatology practice to join a medical spa that performs cosmetic procedures not available at the dermatology practice. In this situation, the provider 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 a range of activities and provider-patient communications that can continue after an exit without breaching 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.

Non-Solicitation and Confidentiality Clauses.

What if a given non-solicitation provision does not restrict a provider’s right to notify patients of his or her departure? The provider might still face constraints in accessing patients’ addresses and other information. Why? The usage and disclosure of patient information, including patients’ medical records, are often limited by another form of restrictive covenant in employment agreements: confidentiality clauses.

Confidentiality clauses usually define patient information and records generated during the provider’s employment as the practice’s property. Such property is confidential and, therefore, not to be used or disclosed following termination of the provider’s employment.

Contrary to common conception, the federal Health Insurance Portability and Accountability Act (HIPAA) and similar state laws do not entitle providers to access or copies of their employers’ patient information and records.

What Is Patient Abandonment?

A non-solicitation provision is usually triggered only by an action. In contrast, 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 consider abandonment to 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.

Clearly, a provider is not susceptible to an allegation of patient abandonment each time a relationship with a patient terminates. Just because a provider ends patient relationships following termination of employment and cannot, by contract, solicit the employer’s patients for further treatment, does not mean that the provider is necessarily at risk of liability for patient abandonment.

The Limits of Liability in Patient Abandonment.

A critical criterion for patient abandonment claims is the need for further treatment. For instance, providers who staff emergency departments, hospitalist programs, and urgent care centers render care that is episodic in nature. In these cases, patients do not expect the same provider to perform related services in the future. Thus, their specialty naturally limits their exposure to allegations of patient abandonment when they leave their jobs.

For providers who form more continuous treatment relationships (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 relationship. The key is that the notice affords a “reasonable time to find substitute care.”

See our related video, “Patient Abandonment.”

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The Role of the Employer In Avoiding Patient Abandonment.

For many providers, mitigating the risk of patient abandonment requires formally ending the patient-provider relationship and providing information about how to receive the same or similar services. A non-solicitation restriction may prevent the provider from issuing such notice directly.

However, the provider can arrange for the employer to give the notice on the provider’s behalf. Indeed, this may be especially appropriate when the employment agreement defines patients treated by the employee as the employer’s. Rather than include the provider’s new practice location, the notice may identify another provider within the practice who can continue to treat the patient. When possible, the outgoing provider should try to time their exit so that patients can arrange continuity in care.

Such an approach may frustrate the provider who is leaving. After all, employers typically exclude information that might prompt patients to seek the outgoing provider’s services at a new practice. However, it at least informs the patients that the provider is not responsible for their further care. In this way, the provider might avoid claims of patient abandonment.

Restrictive Covenants Cannot Forbid Treatment.

As the above discussion shows, solicitation and patient abandonment claims are not limitless. A non-solicitation clause only prohibits solicitation. If a non-solicitation attempted to forbid any treatment whatsoever of patients from the employer’s practice, then it would likely be unenforceable in Illinois.

A Relevant Case.

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 non-compete in a urologist’s employment agreement. The agreement provided that for 12 months following termination of employment, the urologist would not engage in the practice of medicine within a 50-mile radius of the employer. 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 with that radius. These functions included taking phone calls from existing patients with treatment-related questions. According to the urologist’s former employer, such activities violated the non-compete.

The court, however, disagreed. Among the factors in the decision, the court concluded that physicians’ obligations not to commit patient abandonment militated against interpreting the non-compete as the employer proposed, stating:

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 shows, the interests of an employer in enforcing a restrictive covenant must be balanced by a provider’s duty not to abandon their patients. Ultimately, a patient always has the right to seek out a provider of their choosing. A provider who has not solicited a patient cannot, and should not, encounter barriers to providing treatment to that patient.

What’s In Your Contract?

In our experience at Jackson LLP, rarely are any two non-solicitation clauses alike. Are you a healthcare provider considering a new employment agreement with a non-solicitation clause? Perhaps you’re already a party to a non-solicitation agreement, and you’re wondering how it will affect your future opportunities. We can help you assess your rights and responsibilities. If you’re in one of the states where we practice, schedule a complimentary phone consultation with one of Jackson LLP’s healthcare attorneys.

This blog is made for educational purposes and is not intended to be specific legal advice to any particular person. It does not create an attorney-client relationship between our firm and the reader. It should not be used as a substitute for competent legal advice from a licensed attorney in your jurisdiction.