Physician Non-Solicitation Agreements
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In today’s competitive health care market, medical practices have an interest in protecting assets valuable to the business, especially in the event a physician parts ways. Like any business, they may utilize available legal safeguards to do so. This includes employment agreements that contain clauses such as confidentiality provisions, non-compete agreements, and non-solicitation agreements. Unlike other non-medical businesses however, health care providers are subject to unique regulations that make for added issues and scrutiny when creating and enforcing these important agreements.
At Hendershot Cowart P.C., our Texas health care attorneys have become widely regarded for our work representing health care providers throughout Texas and the U.S, and particularly in providing proactive counsel to practices that wish to ensure their medical employment contracts are clear, compliant, and enforceable. From reviewing, drafting, and negotiating terms to enforcement and defense, we offer comprehensive legal services to help medical providers and practitioners protect what matters most.
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What is a Non-Solicitation Agreement?
Non-solicitation agreements work by deterring a physician from inviting patients and / or former colleagues to move with them to a new practice for a specified period of time. Soliciting patients or employees may consist of efforts designed to direct, convince, or coerce them into services or arrangements that compete with the practice.
Drafting Physician Non-Solicitation Clauses
Prohibition of solicitation is an important area of focus when drafting and reviewing physician employment agreements, and it is often used with other non-competition agreements and non-disclosure agreements to provide comprehensive protection. Due to the unique issues inherent to health care regulations and contractual agreements, however, non-solicitation clauses must be carefully tailored to the practice and particular situation.
Below are a few important points to consider when drafting non-solicitation agreements in physician employment contracts:
- Scope – Non-solicitation agreements won’t be enforceable if they are overly broad in scope and unfairly limit future opportunities for physicians, such as when they prohibit physicians from soliciting any patient ever treated by the practice. As such, they typically include terms that detail specific, reasonable time periods, such as prohibiting solicitation of patients with whom the physician had contact during the 12 months prior to their departure. Ensuring reasonableness in scope of prohibited conduct, time limitations, and geographic area, when applicable, is critical to enforceability.
- Patients’ Rights – It is important to remember that patients have the right to seek out the physician of their choosing, and that regulations are in place in part to not hinder the doctor-patient relationship. Therefore, physicians should be permitted to treat patients whom they have not solicited, even if that patient would otherwise fall under terms of non-solicitation specified in the contract.
- Additional Protections – Because soliciting patients for services not offered by a practice usually falls outside the scope of a non-solicitation clause, it is important for practices to take additional protections. These can include additional agreements such as physician non-competes and non-disclosure agreements, in addition to other important proactive protections created in governing documents and other arrangements.
- TMB Rules – In Texas, non-compete agreements are subject to certain requirements under the Texas Medical Board. Per TMB rules, for example, physician non-competes must not deny practitioners access to lists of patients seen or treated within a year of contract or employment termination. They must also allow for access to medical records, with a patient’s authorization, and allow medical record copies to be available for reasonable fees in a format by which they are usually maintained. In the absence of a non-compete, patients have the right to change providers and the Texas Medical Board must express patient notification rules.
By leveraging over 100 years of collective experience and the insight of attorneys who know how to help health care clients protect their most critical assets – from patients and intellectual property or trade secrets to one’s professional future – we can assist with the drafting, review, negotiation, enforcement, and defense of non-solicitation agreements and all other measures physicians and practices may take in relation to health care contracts.
Discuss Your Needs With Proven Texas Health Care Attorneys
Medical practices and practitioners have the right and available legal tools to protect their interests, and working with experienced attorneys like those at Hendershot Cowart P.C. can ensure that any non-solicitation agreements and other safeguards are carefully constructed and tailored to the facts at hand, compliant with applicable laws, and enforceable in the event that things don’t turn out as planned.
If you have questions or concerns regarding the drafting or enforcement and defense of physician non-solicitation agreements or other contractual matters involving health care, do not hesitate to reach out to our team for the full-service support and counsel you need.
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