Physician Restrictive Covenants: The Neglect of the Incompetent Patients' Interests

50 Pages Posted: 17 Apr 2006

See all articles by Betsy Malloy

Betsy Malloy

University of Cincinnati - College of Law


The article examines how courts in different jurisdictions have addressed restrictive employment covenants for physicians and proposes a new approach drawn from the third-party beneficiary analysis in contract law. Physicians hired into existing practices often must sign substantial non-compete agreements. In evaluating the enforceability of any restrictive covenant, courts consider, among other factors, the agreement's effect on the public. Surprisingly, the vast majority of jurisdictions treat the "public interest" analysis vis-a-vis physician restrictive covenants no differently than any other commercial restrictive covenant; this approach neglects the impact that such agreements can have on a physician's existing patients. Although at first glance physician restrictive covenants may seem like a somewhat insular area of the law, it is an area that is reflective of some of the primary forces acting on the perceived health care "crisis" in this country - the often contradictory pressures of serving patients and running a profitable business. This article suggests courts should consider a physician's incumbent patients as quasi third-party beneficiaries to the physician's employment agreement when deciding whether to enforce the physician restrictive covenant. This more nuanced approach will allow courts a finer balance of the business interests of physicians against the often weighty public interest in protecting physicians' relationships with their patients.

Keywords: Physician restrictive covenants, Beneficiary analysis

JEL Classification: K32

Suggested Citation

Malloy, Betsy, Physician Restrictive Covenants: The Neglect of the Incompetent Patients' Interests. Wake Forest Law Review, Vol. 41, p. 189, Spring 2006, U of Cincinnati Public Law Research Paper No. 06-08, Available at SSRN:

Betsy Malloy (Contact Author)

University of Cincinnati - College of Law ( email )

P.O. Box 210040
Cincinnati, OH 45221-0040
United States

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