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108 Ky. L.J. 111 (2019-2020)
Regulate Physician Restrictive Covenants to Improve Healthcare

handle is hein.journals/kentlj108 and id is 121 raw text is: 

                        TO IMPROVE HEALTHCARE

                                Judy Ann Clausen'


     The U.S. healthcare reform agenda seeks to expand patient choice and access,
 improve quality, and control costs. This Article argues these goals should govern
 enforceability ofphysician non-compete and non-solicitation agreements (restrictive
 covenants). Most jurisdictions apply a reasonableness test to assess the
 enforceability ofphysician restrictive covenants. Somejurisdictions hold physician
 non-competes per se invalid. Courts applying the reasonableness test often disrupt
 continuity of care and harm patients; continuity of care is key to patient health.
 Moreover, physicians departing a practice have an ethical obligation to notify
 patients of the physician s departure and how to transfer to the physician's new
 practice. Courts have heavily scrutinized a physician's notification to her patients
 to determine whether the physician crossed the nebulous line from fulfilling
 notification obligations to improper solicitation. Wary of liability for breach of a
 non-solicitation agreement, doctors will likely avoid fulfilling their obligations to
 notify patients, effectively preventing the patient from continuing treatment with her
 doctor. This Article articulates a model framework for evaluating restrictive
 covenants that protects patients and furthers healthcare reform goals. First,
 practices should be required to allow departing physicians to access patient info to
 fulfill patient notification obligations; courts should refuse  to  enforce
 non-solicitation agreements prohibiting physicians from soliciting their own
 patients. Otherwise, non-solicitation agreements potentially sever doctor-patient
 relationships. Next, courts should refuse to enforce restrictive covenants in a way
 that disrupts continuity of care or interferes with the doctor-patient relationship;
 courts should clarify that non-competes can only restrict the location where a
physician practices and cannot prohibit a physician from treating her patients.
Finally, states should enact transactional incentives to lower costs to patients and
expandpatient choice and access by making covenant enforcement turn on the extent
to which the covenant supports healthcare reform goals. Current frameworks fail to
incentivize providers to: (1) accept lower reimbursement coverage such as
TRICARE, Medicare, and Medicaid and (2) reduce patient costs. This Article's
model provides these incentives.

    I Visiting Associate Professor of Law and Supervising Attorney, Veterans and Servicemembers Legal
Clinic, University of Florida, Levin College of Law. The author would like to thank her brother, a
psychiatrist, Dr. Ben Lacy, her father, a dentist, Dr. Ben Lacy, her sister-in-law, a pediatrician, Dr.
Kimberly McDermott and her research assistant, Vanessa Gray.

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