An agreement between Cleveland Clinic Akron General Hospital and U.S. Acute Care Solutions nimbly avoided a stumbling block that could have disrupted plans to reopen the emergency medicine residency at Summa General Health Care under the direction of Michael Beeson, MD. Dr. Beeson had led the Summa program (now operating under U.S. Acute Care Solutions [USACS]) for 27 years before going to Akron eight years ago.
Dr. Beeson gave a 90-day notice to Akron General on March 21, in preparation of moving back to Summa, but Akron terminated him without cause on May 23, according to a suit filed by Dr. Beeson, USACS, and its physician group, Emergency Medicine Physicians of Cuyahoga County, against Akron General Health System and its emergency physician organization, Partners Physician Group.
Dr. Beeson's contract contained a noncompete clause that forbade his working within a 10-mile radius of Akron General for a year after leaving the hospital. USACS, Dr. Beeson, and the Cuyahoga County Physician's group claimed in its complaint that “Dr. Beeson accepted this position [at Summa's Akron area campus] upon realizing that the noncompete provision of the agreement was unenforceable” in this situation. His Summa assignment would be to lead its residency program in the role of educator and to assist in its emergency department treating emergency patients, according to the pleading.
Akron General and other defendants wrote Dr. Beeson May 23, threatening to sue him for violating the noncompete clause. The hospital and the other plaintiffs noted in the pleading that the noncompete prevents Dr. Beeson from providing medical educational services to the Akron community, and asked the court to find the noncompete provision unenforceable under Ohio law.
Negotiations among lawyers for the plaintiffs and defendants resulted in a confidential settlement announced June 12. Akron and USACS noted in a joint statement that they had “agreed that Dr. Beeson may direct Summa's Emergency Medicine Residency Program, and that Dr. Beeson will honor his agreement with Akron General by not clinically practicing outside of that role for the next year. We jointly recognize the importance of education for the next generation of emergency medicine physicians.”
The turmoil at Summa began Jan. 1, 2017, when its long-time emergency medicine group's contract was terminated and a new group under USACS took over. (“Summa Shaken by Change in ED Group,” EMN 2017;39:1; http://bit.ly/2Nd6F7E.) Questions about whether the new group could handle the residency program soon followed, and the Summa emergency medicine residency program subsequently lost its accreditation that July. (“Summa Residency Likely to Close in July,” EMN 2017;39:1; http://bit.ly/2IDuu5o.) Summa reapplied for reaccreditation to the Accreditation Council for Graduate Medical Education, which conducted a site visit June 21, a Summa spokesman said, and the July 1 start of a new residency year passed without an emergency medicine class there.
Policy and Ethics
The issue of noncompete clauses in emergency medicine contracts arises frequently, mainly in contracts with management companies that work with community hospitals. This particularly visible one affected academic medicine and threatened the ability to train and retain emergency physicians in Akron, however.
Jeffrey C. Miller, an attorney for the plaintiffs in this matter, reiterated that he could not discuss details of the final settlement. An expert in noncompete clauses of all sorts, he said whether they are enforceable depends on the circumstances. “It always comes down to what I think is a business decision,” he said.
Any employee—including emergency physicians—should have an attorney scan such contracts, particularly when they have a noncompete, Mr. Miller said. “What you want to do is to have the contract spell out the business purpose of the restrictive covenant so that at that point you can evaluate why there is the necessity for the inclusion of the restrictive language,” he said. “That's how I draft mine.”
He said he tends to write such covenants as stand-alone separate documents that emphasize the importance of the covenant and gives both sides a chance to review the information.
The American Academy of Emergency Medicine opposes restrictive covenants in regular practice, particularly in academic medicine, because such restrictions can affect a whole program, said Robert McNamara, MD, a former president of AAEM and the chair of emergency medicine at Temple University School of Medicine in Philadelphia.
Larry Weiss, MD, JD, a clinical professor of emergency medicine at the University of Maryland School of Medicine and also a former AAEM president, said in a discussion on the AAEM website that post-contractual restrictive covenants in physician contracts violate public policy and medical ethics. “Often, restrictive covenants violate the law,” he said, “either because of state laws that ban restrictive covenants in physician contracts, or because the restrictive covenants serve an illegitimate business interest such as the restriction of competition. ... AAEM condemns the use of post-contractual restrictive covenants in physician contracts.” (AAEM White Paper on Restrictive Covenants; http://bit.ly/2IuIKx0.)
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