Monday, January 4, 2021

Ohio Court Rejects Non-Compete Clause to Prevent Surgeon From Changing Employers

 

Last month, the Ohio Court of Appeals affirmed a surgeon’s preliminary injunction against his former employer to prevent the enforcement of non-competition clause in his former employment agreement.  Castillo-Sang v. The Christ Hospital Cardiovascular Associates, LLC, 2020-Ohio-6865.   The Court agreed that that the clause was unreasonable in that it sought to prevent ordinary competition, not unfair competition, in attempting to prevent the surgeon from working for a nearby hospital.  The surgeon had already been trained before he was hired in 2015 and he possessed no confidential or trade secret information belonging to his employer.   Further, the clause put an undue burden on the surgeon in attempting to earn a living and provided a disproportionate benefit to the employer.  Finally, the clause injured the public’s interest when the surgeon was able to perform a necessary service which was in short supply.

According to the Court’s opinion, the surgeon had completed all of his medical training prior to being hired by the employer practice. His employment agreement contained a one-year non-compete clause that only covered Hamilton and contiguous counties.  While he honed his cardiac surgery skills over the next four years, there was no evidence that the employer had provided or enabled any significant or additional training.  He informed the employer that he intended to leave and claims that he was told that the non-compete clause would not be enforced against him.  He obtained employment with a Kentucky hospital and filed suit to attack the non-compete clause when the employer indicated that it would seek to enforce the clause against him.  The trial court agreed with the surgeon and the Court of Appeals affirmed.

Restrictive covenants are disfavored in the law, and “[t]his measure of disfavor is especially acute concerning restrictive covenants among physicians, which affect the public interest to a much greater degree. . .  Noncompetition agreements must be strictly construed in favor of professional mobility and access to medical care and facilities. . . . “[C]ourts have recognized that the greater scrutiny is mandated by public-policy considerations, since limiting the ability of a physician to practice may affect the public’s ability to obtain medical care.” . . .But even though not favored, covenants not to compete in the medical profession are not per se unenforceable, and will be upheld if they are reasonable.  . . . And, courts will enforce covenants against physicians to the extent necessary to protect an employer’s legitimate interests; if there is no legitimate interest to be protected, the noncompete is unreasonable.

By way of example,

Ohio courts have found legitimate protectable interests in upholding physician covenants not to compete. In Owusu v. Hope Cancer Ctr. of Northwest Ohio, Inc., 3d Dist. Allen No. 1-10-81, 2011-Ohio-4466, the court upheld a physician’s two-year covenant not to compete, finding that the medical center had a legitimate business interest in prohibiting the physician from using physician referral connections he developed as a result of employment with the medical center and that he could not use these connections to build a new practice.

The Court found that the covenant provided more protection than necessary to protect the employer’s legitimate business interests.  Because the surgeon had agreed in the employment agreement that the clause was reasonable and necessary to protect the employer’s interests in confidential and trade secret information, he had to now prove with clear and convincing evidence that the restrictions were in fact unreasonable.    The employer pointed to confidential information that he had concerning its future expansion plans, its pricing structure and its referral network.   However, its arguments were unconvincing.

“The purpose in allowing noncompetition agreements is to foster commercial ethics and to protect the employer’s legitimate interests by preventing unfair competition—not ordinary competition.” . . . The prevention of ordinary competition is not a legitimate business interest that can be protected by a restrictive covenant. . . . Therefore, a covenant not to compete is “valid only when the competition [it] restrict[s] is somehow unfair.”

In this case, the employer failed to identify any “targeted” physicians that it planned to recruit, “targeted” specialties where it planned to expand or particular markets and definite marketing plans that it planned to execute.  Further, its primary hospital indicated that all of the surgeons received the same training and investment and the prices were set by government payors and insurance companies, not the employer.  Further, cardiologists were the primary source of referrals to the cardiac surgeons and other hospitals were its primary competition, not the hospital where the plaintiff found employment.   Indeed, the evidence indicated that cardiac surgeons spent no time soliciting patients or referring cardiologists for business.   There was no evidence that the surgeon possessed, let alone used, any of the employer’s confidential information, or engaged in unfair competition using such information.

The Court also found that the non-compete clause put an undue burden on the surgeon even though he voluntarily resigned his employment and had a job offer in Columbus.   The surgeon testified that he moved to Cincinnati to be near his wife’s family, who provided child care, and his wife was employed at a local hospital.  He argued that commuting to Columbus would be a hardship and physically exhausting in a stressful and demanding profession.

Third, the Court agreed that it would injure the public to restrain the surgeon from performing minimally invasive Mitral Valve surgeries, which have far fewer complications and far quicker recovery times, etc. for patients.  None of the other surgeons at his new hospital could perform that particular procedure.

Finally, the Court found irreparable harm to exist because the surgeon would have to move in order to comply with the non-compete clause.  The defendant’s witness had agreed that burnout was a genuine factor by depriving a surgeon of rest and/or family time.

Interestingly, the parties have a pending claim involving the surgeon’s allegation that the employer only enforced the non-compete against Hispanic physicians.  That claim was not part of the preliminary injunction hearing or this appeal.  

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.