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Non-compete clause in a fellowship?

Discussion in 'Clinical Rotations' started by Toadkiller Dog, May 29, 2002.

  1. Toadkiller Dog

    Toadkiller Dog Senior Member
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    I was just reading the University of Utah's web page for their ophthalmology dept, and it states that for their fellowship in cornea/refractive surgery, you must sign a non-compete clause that says you won't practice in the Salt Lake area when you finish the fellowship.

    Is this typical of fellowships? That seems like a raw deal. However, it may have more to do with the cutthroat world of elective refractive surgery right now.

    Comments?
     
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  3. droliver

    Moderator Emeritus 10+ Year Member

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    As I understand it, these contracts are unenforceable & can be challenged
     
  4. passngas

    passngas Junior Member

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    I know a few surgeons who went to my state school and did residency at the same program who had to go out of state for fellowship simply because the faculty didn't want to train someone who would be staying to practice in their own back yard.

    I haven't heard of it actually being spelled out in the contract however.
     
  5. mpp

    mpp SDN Moderator
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    Non-compete clauses are very common in all sorts of employment/training opportunities. Although they can be challenged, it is often difficult and expensive. Things to look at to see if a non-compete clause is enforceable include (pulled from some other web-site):

    The restrictions are no greater than necessary for the protection of the employer's legitimate business interest;
    The restrictions do not impose undue hardship on the employee; and
    The restrictions are not injurious to the public.

    Does the clause have geographic or time limits?
    Is the employee the sole customer contact?
    Does the employee possess confidential information or trade secrets?
    Does the non-compete clause seek to restrain ordinary rather than unfair competition?
    Does the clause stifle pre-existing skills of the employee, or those skills which were developed while the individual was working for that specific employer?
    How does the non-compete clause work to the detriment of the employer and the employee?
    Does the clause restrict the employee's sole means of support?
    Is the restricted employment merely incidental to the main employment?
     
  6. Goofy

    Goofy Senior Member
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    </font><blockquote><font size="1" face="Verdana, Helvetica, sans-serif">quote:</font><hr /><font size="2" face="Verdana, Helvetica, sans-serif">Originally posted by mpp:
    <strong>Non-compete clauses are very common in all sorts of employment/training opportunities. Although they can be challenged, it is often difficult and expensive. Things to look at to see if a non-compete clause is enforceable include (pulled from some other web-site):

    The restrictions are no greater than necessary for the protection of the employer's legitimate business interest;
    The restrictions do not impose undue hardship on the employee; and
    The restrictions are not injurious to the public.

    Does the clause have geographic or time limits?
    Is the employee the sole customer contact?
    Does the employee possess confidential information or trade secrets?
    Does the non-compete clause seek to restrain ordinary rather than unfair competition?
    Does the clause stifle pre-existing skills of the employee, or those skills which were developed while the individual was working for that specific employer?
    How does the non-compete clause work to the detriment of the employer and the employee?
    Does the clause restrict the employee's sole means of support?
    Is the restricted employment merely incidental to the main employment?</strong></font><hr /></blockquote><font size="2" face="Verdana, Helvetica, sans-serif">Excellent information. These clauses, so I have heard are usually unenforceable, and sometimes downright illegal.

    The only problem I forsee, is the oddball group that does decide to sue. While you may ultimately prevail, getting wrapped up in an interminable and costly lawsuit cheapens the victory immensely. Unfortunately, there is a rather disturbing segment of the physician public that enjoys litigation.
     
  7. docab

    docab Member
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    I can't speak for the enforcement of contracts signed for fellowships; however, we have a contract lawyer speak to our residents every year regarding employment contracts after residency and he has dealt with employment groups that enforced the non-compete clause and have won in court. Also, if the clause gives an actual distance (i.e. can't compete w/in 20 miles...) then this is a 20 mile radius as the crow flys, not 20 miles in your car on the highway (a huge difference). If you hope to practice in the area after fellowship, I strongly advise spending the money up-front to seek legal advice before signing a contract with a non-compete clause. If the program states "oh, that's never enforced," then have them remove it from your contract before you sign.
     

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