Non-Solicitation — Protecting the Patients and the Staff

The partner’s last day was Friday. By the second week of the following month two medical assistants and a front-desk lead have given notice, all to the same new address, and the schedule that took four years to build has holes in it. Nothing in that sequence required anyone to breach a non-compete. The departing physician opened an office 30 miles away, exactly as permitted, and then made phone calls.

Non-solicitation provisions are the practical cousin of the non-compete, and in a medical practice they frequently matter more. A non-compete restricts where a physician may practice. A non-solicitation provision restricts whom she may approach. The second is a narrower restraint aimed at a more specific harm, and narrower restraints are generally reviewed more favorably by courts—though enforceability remains a question of state law and judicial temperament, never a promise. A practice forced to choose between the two instruments should think hard before choosing the one that sounds stronger.

Patient non-solicitation carries an ethical constraint that no amount of drafting removes: patients are not property. Medical ethics, and in many states board regulations, require that patients be notified when a treating physician departs and be permitted to choose where their care continues. A clause forbidding a departing physician from informing families of her new location puts her in conflict with her licensing obligations and puts the practice in the position of defending a restraint on patient choice—a losing posture in front of a judge and a worse one in front of a community. The provision that works draws the line elsewhere. Notification is permitted and, in fact, planned: an agreed letter, agreed content, an agreed mailing schedule, sent by the practice or jointly. Solicitation is what is prohibited: targeted inducement, direct outreach beyond the agreed notice, and marketing aimed at the practice’s panel by name.

Scope keeps the provision defensible. Restrict solicitation of patients the departing physician personally treated within a defined lookback—18 or 24 months is the common construction—rather than every family in the database. And carve out the family who finds her independently. Parents who track down a pediatrician on their own are exercising exactly the choice the ethics rules protect, and a clause that purports to prohibit her from accepting them will be read as a restraint on patients rather than on the physician. Write the carve-out explicitly so that no one has to litigate whether it exists.

Staff non-solicitation is the quieter provision and often the more valuable one. A practice can survive losing a physician’s panel more easily than it can survive losing the four people who run its front office in the same month. Draft it to reach targeted recruiting of the practice’s employees, and distinguish targeted recruiting from general advertising, so that a public job posting a former partner’s new office happens to run does not become a breach. A duration of 12 to 24 months is the usual construction. Where state law restricts outright bars on employee movement—and several states have moved in that direction—a defined fee tied to the recruiting and training cost of the departed employee may accomplish more than a prohibition. Referral-source non-solicitation completes the set for practices with meaningful referral relationships.

Then tier the whole package by exit type, because the same restriction should not follow a retiring founder and a partner removed for cause. The construction that works assigns each covenant a tier and each exit a tier. A retirement, a death, a disability, or a relocation out of the market activates the gentlest tier, sometimes little more than a notification protocol. A voluntary departure into local practice activates the full set. A for-cause removal activates the full set and holds it for the longest permitted period. One well-drafted exit shows the mechanism working. Dr. Bennett, a 20 percent partner in a five-pediatrician practice, resigns to follow a spouse’s relocation, her non-solicit activates at the non-competitive tier the agreement assigns to a relocation exit, and her patient notification letters mail on the practice’s schedule. No negotiation. The tier was decided years earlier by people who did not know whose exit they were pricing.

Consequences deserve the same care as obligations. Liquidated damages tied to the value of solicited revenue are a familiar answer, and they carry a doctrinal condition: in most jurisdictions a liquidated-damages provision is enforceable when the amount is a reasonable pre-estimate of a harm difficult to measure, and unenforceable when it functions as a penalty. Drafting a number large enough to frighten is therefore drafting a number likely to fail. Counsel sets the figure and the formula, in the state whose law will govern.

One departure-week problem belongs in this provision rather than in the argument it usually causes. A departing physician commonly asks for a list of the patients she treated and copies of the records she generated, and the request is usually legitimate on its face—she remains exposed to claims for years, the tail coverage of article 25 exists for the same reason, and her carrier may need the underlying records to defend her. That same list is also, precisely, the mailing list the non-solicitation clause exists to police. Both things are true at once, and the agreement should say so: state her right to defense records plainly, including what is provided, in what form, at whose cost, and under what safeguards for patient information, alongside an explicit statement that possession of the list does not license its use. PMI has watched that standoff consume a departure week more than once, and it is always the same week the practice can least afford to spend on it.

Red flags. A non-solicitation clause that prohibits informing families of a new location. No separate treatment of patient solicitation and staff solicitation—one sentence covering both usually covers neither well. A provision reaching patients the physician never personally saw. Duration set at five years or more. No tiering, so a retiring founder and a terminated partner leave under identical restrictions. And a liquidated-damages number chosen for its deterrent effect rather than its relationship to actual harm.

Families have the right to follow a physician. A practice still has the right not to be dismantled on the way out the door. A well-drafted non-solicit is simply the sentence where those two truths are made to coexist.