Can a physician solicit patients after the contract ends? This is going to be determined solely by the non-solicitation clause in the contract. Nearly every physician contract is going to have restrictive covenants, and these are things that the physician can’t do either during or especially after the term of the contract. Once the relationship ends, either the physician terminates the contract, or maybe the employer does as well, the restrictive covenants kick in, and then these state, here are the things the physician cannot do after the contract ends. So, what is a non-solicitation clause? Well, generally, it means that the physician can’t actively solicit patients, employees, business vendors, independent contractors for a period.
The period almost always is either one to two years. I mean, about 99% of physician contracts, it’s probably going to be somewhere between one to two years for a non-solicitation clause. Now, the patient part of it will say the physician simply can’t actively solicit patients. Let’s say the physician leaves a practice and maybe moves somewhere else in the area. They will likely have a non-compete that will say to them, you can’t work for, usually, the non-solicit and non-compete length are the same. So, for one or two years, within 15 miles of your primary practice location. Let’s say, the physician leaves the employer, starts to practice outside of the 15 miles, and then says, alright, I’m going to download the patient list from the employer and then blast out an email that says, I’m opening my own practice.
I want you to come with me. Here’s my new address. Here’s my phone number. Okay, that’s what a non-solicitation clause would prohibit. The physician could not actively reach out to their patient who they saw with that employer for that period. Now, what does a non-solicitation clause not stop a physician from doing? Well, a patient’s healthcare provider is their choice. So, an employer can’t say, you are prohibited from providing care to this patient. What I’m saying is, the employer can’t prohibit a patient from going somewhere, but they can prohibit the physician from reaching out. Now, if a patient reaches out to the physician and says, I hear you leaving, where are you going? I mention following you. I wouldn’t consider that active solicitation on the part of the physician. Other blogs of interest include:
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They’re simply answering a question and that should be okay. Now, some of the trickier stuff is alright, what about active marketing to the public? Is a billboard considered soliciting? Is a Google ad soliciting? Is a website soliciting? Is a mailer soliciting? Now, these are usually the intricate things that are the issues we deal with in a non-solicit. Most contracts will not define what is considered a solicitation. So, you just have to say, anecdotally, alright, well, would this be considered an active solicitation or not? In my mind, general advertising should not be considered a solicitation. You’re targeting a specific market, but you’re not pinpoint targeting your patients from that employer. You’re reaching out to the broad public. And so, I would say that that would not be an active solicitation.
So, that’s kind of non-solicit for patients. Now, employees can be different. If the employer is savvy, then they’ll not only put, you can’t actively solicit employees, but they’ll also say you can’t hire them for that period. There’s a big difference between you not soliciting an employee, and you not being able to hire them at all. Kind of a do not hire is enforceable. And I’d say it’s probably maybe 25% of the contracts I review have a ‘do not hire’ non-solicit versus a just ‘you can’t actively solicit them.’ The biggest concern of any, and this goes for most private practice, or I guess if you were like primary care for a big hospital network is they don’t want to bring a physician in, they establish a patient base, have relationships with the MAs, the nurses, the front office, whoever the office manager is, then they say, you know what, I’m leaving. I’m going to start my own practice, I’m going to take all my patients, I’m going to take all the employees. And then that employer is just kind of stuck. That is the rationale behind these clauses.
Are they enforceable? Yes, they are. They’re generally reasonable. If they’re, as I said before, a year or two in length and an employer absolutely can prohibit an employee from soliciting patients or employees. It’s good business on the part of the employer, and honestly, it’s reasonable as well. As I said before, the biggest issue with this is what would be considered solicitation and what wouldn’t. And then if the employee part of it says either you can’t hire, or you just can’t solicit. So, that’s what a non-solicitation clause is in a physician contract.
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