As a business and healthcare litigation firm focused exclusively on advising and representing health care providers, we work virtually every day with contracts that involve non-compete agreements and other forms of restrictive covenants. Almost all physician employment, for example, will involve a physician employment agreement that contains a restrictive covenant. Typically, a restrictive covenant will apply to prohibit certain competitive activities both during the employment and for some agreed period following employment, often one to three years. The details of such agreements can vary dramatically and, contrary to the impressions of many medical practice owners and employed physicians, there are not “standard” provisions for duration, geographic scope, etc. Further, Georgia and South Carolina case law and relevant statutory provisions are subject to interpretation, about which reasonable minds can often differ.
As a healthcare law firm, we are exposed to agreements on the transactional end, when the parties get married (i.e., when they sign the contract), and when they divorce (i.e., when the employment ends). If a non-compete issue is raised at the end of the relationship, the implications for employer and employee can be severe and, in unfortunate cases, devolve into litigation. For a highly compensated physician, whose ability to ply his/her trade following many years of education and training is suddenly impaired by the signed contract, whether to proceed with certain employment opportunities (that might violate a non-compete agreement) can make for a highly stressful decision-making process. Some factors that physicians may consider follow.
Should you determine if the non-compete agreement is enforceable?
Because our healthcare law firm often handles employment-related disputes and litigation (for employers and employees alike), we follow developing trends in employment litigation. Employment discrimination lawsuits continue to make headlines in the healthcare industry. Between 2018 and 2019, numerous allegations regarding doctors, nurses, and administrative staff have resulted in litigation challenging existing employment practices of large network hospitals and small practices. For managers and owners of physician practices or small businesses, employment concerns should be regularly discussed with legal counsel.
As technology improves the ability for providers to communicate, existing healthcare laws will continue to be put to the test. Now, a new call for care coordination is driving quality improvement initiatives for physicians and hospitals. In 2018, U.S. Department of Health and Human Services (HHS) launched its initiative “Regulatory Sprint to Coordinated Care,” to facilitate value-based healthcare and promote effective communication strategies between physicians. The Regulatory Sprint seeks to increase a patient’s ability to understand their treatment plan, promote coordination between providers, establish incentives for providers to coordinate efficient care, and encourage information-sharing between providers and facilities.
Providing access to high quality services to patients in rural areas is an ongoing challenge in the U.S. Throughout our country, a large percentage of citizens living in rural areas are less healthy than their peers in urban areas, as rural citizens lack access to healthcare providers in their small communities as well as personal financial resources and transportation options that would allow them to travel to larger cities where top-quality or specialty medical services are offered.
More than 2,000 opioid lawsuits are pending nationwide. A large portion of these lawsuits target drug manufacturing companies for their contributions to the opioid epidemic that is plaguing the country.
A sign of the times in the evolution of modern healthcare practice is the prevalence of the electronic health record (EHR). In the past fifty years, technological advances and payer incentives have resulted in a sea of change in healthcare documentation, causing healthcare providers to shift from the historic practice of using paper records to using electronic health records. Healthcare providers navigating the transition from paper to electronic records have encountered many challenges in learning and mastering the efficient and accurate use of EHRs. One challenge with significant and potentially life-or-death consequences to patient health is ensuring that EHRs contain accurate information.
Healthcare fraud attributable to nurses, hospitals, pharmacists, equipment providers and doctors, contributes to the high cost of medical care. For this and other reasons, fraud continues to be a hot topic in the healthcare industry. Recently, there have been numerous headlines regarding Medicare, Medicaid, and private insurance company investigations of providers for improper billing practices. Accusations stem from both whistleblowers and audits, making it difficult for providers to hide behind fraudulent billing practices. With numerous investigations in the spotlight in recent months, providers should be alert and act to ensure that they are compliant with the law.