FLORIDA NON-COMPETE LAW: NO DIRECT SOLICITATION WHEN A PATIENT VOLUNTARILY CHOOSES TO SEE A PHYSICIAN AT HIS OR HER NEW EMPLOYER

Non-compete and non-solicitation provisions, otherwise known as “restrictive covenants,” have become increasingly more common in employment agreements. Peter Mavrick is a West Palm Beach non-compete attorney who has extensive experience dealing with restrictive covenants in a wide array of industries, including the medical industry. Although these non-compete covenants are meant to protect a former employer’s alleged legitimate business interests, they can also interfere with certain public policy issues, such as a patient’s right to continuity of care with their own physician. Unlike some states, Florida law has not yet specifically recognized the patient’s right to continue treatment with his or her physician as a consideration when determining whether to enforce restrictive covenants in the medical industry. Thus, if a physician leaves a medical group under the cloud of a non-compete or non-solicitation agreement, the physician will often be precluded from contacting his or her patients to continue treatment at the new employer. This raises an important issue: will a physician be in violation of the non-compete covenant if a patient voluntarily seeks out the physician to continue his or her care? The West Palm Beach non-compete attorneys at the Mavrick Law Firm were recently confronted with this issue at trial and know that this would not be considered direct solicitation based on the Second District Court of Appeal’s holding in Lotenfoe v. Pahk, 747 So. 2d 422 (Fla. 2d DCA 1999).

In Lotenfoe, a physician challenged a temporary injunction that precluded him from competing with his former employer. The physician’s employment agreement contained the following restrictive covenant:

Employee [Lotenfoe] agrees that on the termination of his employment for any reason, and for a period of five (5) years thereafter, he will not directly or indirectly act in a professional capacity that competes in a substantial degree with the employer [Pahk] within the area of Highlands County, Florida…

Upon leaving his former employer, the physician placed an advertisement in a newspaper, as required by Florida law. Under the heading “New Location,” the advertisement stated “Richard Lotenfoe, M.D. Urological Surgeon would like to announce that he has changed the location of his office.” After listing his new address and telephone number, as well as information about his relevant educational background and specialties, the advertisement continued: “Dr. Lotenfoe is now accepting new patients.” The trial court found this additional wording constituted direct solicitation. On this basis, the trial court granted an injunction that prohibited the physician from competing with his former employer in Highlands County for a period of five years. The injunction barred the physician from practicing medicine and from contacting or soliciting the former employer’s existing patients or any other prospective patients.

The Second DCA, however, reversed the trial court’s order and dissolved the injunction. The appellate court explained that the only evidence set forth by the former employer regarding solicitation was that eleven patients had contacted the former employer requesting their medical information be transferred to the physician’s new employer. As stated by the Second DCA: “The fact that a patient voluntarily seeks out a doctor at his new practice does not establish direct solicitation.” Therefore, based on Lotenfoe, a physician will not be in violation of a non-compete covenant prohibiting competition or solicitation merely due to a patient voluntarily seeking out the physician at his or her new employer.

It is critical though to be aware that the wording of the restrictive covenant is the most important consideration regarding a former employee’s obligations. If the restrictive covenant specifically prohibits the physician from treating patients he saw while employed with his former employer, there is case law that indicates a physician may not be able to treat the patient regardless of who establishes first contact. See Hilb Rogal & Hobbs of Florida, Inc. v. Grimmel, 48 So. 3d 957 (Fla. 4th DCA 2010) (reversing trial court’s dissolution of injunction because the former employee “was prohibited from both soliciting and accepting an invitation from a known customer for the purpose of providing prohibited services”); Envtl. Services, Inc. v. Carter, 9 So. 3d 1258 (Fla. 5th DCA 2009) (“More importantly, regardless of who initiated the contact, the agreements clearly prevent the former employees from ‘performing services for any current, former or prospective customers with whom employer had any business-related contact (contact intended to advance the Company’s business interests) during his/her employment with the Company’”).

However, courts in Florida have not yet addressed a public policy exception with regard to a patient’s right to continuity of care with their own physician. Florida’s non-compete covenant statute, § 542.335, Florida Statutes, provides the following at subsection (1)(i):

No court may refuse enforcement of an otherwise enforceable restrictive covenant on the ground that the contract violates public policy unless such public policy is articulated specifically by the court and the court finds that the specified public policy requirements substantially outweigh the need to protect the legitimate business interest or interests established by the person seeking enforcement of the restraint.

A scenario may arise where, for example, a patient who has been chronically ill for years and has been treated by the same physician is prohibited from seeing the physician due to the physician’s non-compete agreement with his or her former employer. In such a situation, a court might refuse to enforce a non-compete covenant on public policy grounds if it finds that the patient’s right to continuity of care outweighs the legitimate business interests of the physician’s former employer. This scenario has not yet been litigated in a reported Florida case. If you would like to determine your rights under a restrictive covenant you are currently bound by, or if you simply would like more information regarding restrictive covenants in general, please contact the West Palm Beach non-compete attorneys at the Mavrick Law Firm.

Peter Mavrick is a West Palm Beach non-compete lawyer who has successfully represented many clients in Florida non-competition covenant litigation in the Miami-Dade, Broward, and Palm Beach County areas encompassed by the Third and Fourth District Courts of Appeal, as well as Hillsborough, Sarasota, and other counties encompassed by the Second Circuit Court of Appeal. This article is not a substitute for legal advice tailored to a particular situation. Peter T. Mavrick can be reached at: Website: www.mavricklaw.com; Telephone: 954-564-2246; Address: 1620 West Oakland Park Boulevard, Suite 300, Fort Lauderdale, Florida 33311.