Page 8 - April 2017 Newspaper

New Considerations for Medical
Malpractice Insurance
Non-Compete Agreements
EXPERT ADVICE
The past decade has seen a dramatic increase in the
number of physicians who have become employed by
Do You Want To Be health care systems. As a result, physicians are general-
ly required to sign non-compete agreements. Non-com-
a Paid Medical Expert? pete provisions from such institutions tend to be much
broader in scope than in the past, when physicians
joined private practices, presenting several important
considerations physicians should understand before
Expert witness testimony is essential to all med- accepting a new position.
ical malpractice legal proceedings. Usually, without a
medical expert, plaintiffs cannot proceed to trial, Geographic Reach
and defendants are usually doomed to an adverse As hospitals expand their presence beyond their pri-
jury verdict. Medical experts are recruited in many mary campuses with urgent care facilities, ambulatory
ways, even from proprietary companies who offer a surgery centers, diagnostic centers and other services,
diverse variety of experts. non-compete agreements have expanded in geographic BY MITCHELL GREEN
Many professional organizations, including the reach. It is not uncommon to see a non-compete that
American Academy of Family Physicians, have rec- restricts a physician’s future employment to include all the geographic areas sur-
ommended guidelines concerning expert witnesses, rounding the employer's extended facilities. In South Florida, for example, that could
including: stretch from the Keys through the Treasure Coast, making it necessary for a physician
• It is the responsibility of the physician expert to move out of South Florida in order to continue to practice medicine.
witness in a medical liability case to present com- To avoid this situation, a physician should request the non-compete be limited to
plete and unbiased information. BY BILL GOMPERS the area where he or she will be spending their greatest amount of time. From an
• The physician expert witness should not become enforceability perspective, a court might not find it reasonable, if a primary care
an advocate or a partisan during the trial and, to the physician practices solely in Miami Beach, for that physician to have a restrictive
extent possible, the testimony presented should reflect the generally accepted stan- covenant extending into Palm Beach County, simply because the healthcare system
dards within the specialty or area of practice. has an imaging facility there. On the other hand, if the physician is a highly skilled
• Prior to testifying, the physician expert witness should become familiar with the specialist and one of only a few in the region, a court might find it reasonable for the
facts of the case and the medical standard at issue and should review and under- non-compete to cover an expanded area, as patients likely would be willing to travel
stand both the current concepts and practices related to that standard as well as the a greater distance for treatment.
concepts and practices related to that standard at the time of the occurrence that led
to the lawsuit. Length of Agreement
• Compensation to physicians who testify as expert witnesses should be reason- Under Florida statutes, a non-compete of less than six months is presumed to be
able and commensurate with the time and effort involved in fulfilling the physician's reasonable, whereas a non-compete of greater than two years is presumed to be unrea-
responsibilities as an expert witness. sonable, leaving the vast majority of agreements in the gray area.
In this time of shrinking fees and increased costs, physicians are debating if they One way to mitigate a long non-compete is to request a "honeymoon" period. This
should offer their services as a paid medical expert. Many questions arise when con- allows a newly employed physician time to get a feel for the employer without com-
sidering this path. The Doctors Company has challenged this matter with a few mitting to a lengthy non-compete if things don't work out. A honeymoon period
questions that can be beneficial when evaluating this option. Among them are: between three and six months gives the physician a fair amount of time to determine
• Do you have sufficient flexibility in your schedule and patient coverage support if the new job is the right fit and yet is short enough to avoid negatively impacting
to be able to appear in court when required? the employer if the physician leaves.
• Is the case simple, or will you need to review voluminous medical records, meet
with the attorney repeatedly, give a lengthy deposition, and spend hours in court? Enforceability
• How well do you verbally spar without a script, and how do you handle the I have seen too many cases in which a physician signed a non-compete, thinking it
stress of being challenged in front of a room of spectators? would not hold up in court, only to learn the opposite years down the line. It is
• Could your testimony be used against you at a later time? important to presume that any non-compete agreement will be enforceable, and ide-
• How well will you deal with pressure to enhance your opinion, to be more crit- ally, have an attorney review it before signing it. In other words, plan for your exit
ical or supportive of other providers’ care, or to venture outside your area of expert- when you arrive.
ise in order to help the defendant’s or plaintiff’s case?
Usually your professional liability policy will not cover you for functioning in the Negotiating Power
role of a paid medical expert. Thus, prior to making a decision you should contact As part of the consolidation trend in health care, many hospitals and large practices
your insurance advisor to determine if coverage exists for this risk or if you will have developed approved templates for non-compete agreements and are unwilling to
need additional placement. negotiate with prospective employees. With fewer employers in today's medical mar-
The decision is yours. Proceed with caution. ketplace, physicians, especially young graduates, typically do not have the leverage
they once had. That being said, sought-after specialists who are being courted by
Bill Gompers is a medical malpractice insurance many prospective employers might find that those employers are willing to grant con-
specialist agent with cessions.
Danna-Gracey. He can be reached Ideally, the conditions of a non-compete agreement protect an employer's legitimate
at or (888) 777-7173 business interest while not being unduly restrictive on the physician. Being well
or Bill@dannagracey.com. informed and aiming to be reasonable during the negotiation process are keys to
achieving a mutually agreeable outcome.

Mitchell Green is a partner in the law firm of Kramer, Green, Zuckerman, Greene &
Buchsbaum, P.A. He can be reached at (954) 966-2112 or MGreen@KramerGreen.com.

Correction

On page 25 of the March issue of South Florida
Hospital News and Healthcare Report, the photo of
Dr. Thomas Klein was incorrect.
This is the correct photo of Dr. Klein.

Dr. Thomas Klein

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8 April 2017 southfloridahospitalnews.com South Florida Hospital News