PECULIARITIES OF APPROACHES TO THE APPLICATION OF NON-COMPETE CLAUSES IN MEDICAL PRACTICE IN THE CONTEXT OF ETHICAL AND LEGAL CONSIDERATIONS
Authors: Harkusha Andrii O. 
Published: April 2024

The central issue surrounding non-compete agreements for physicians is a complex web of conflicting interests, rights, and objectives involving various parties. On one hand, the enforceability of non-compete restrictions is a clear part of the employer's legitimate business interests based on freedom of contract. On the other hand, ensuring an open and competitive market, preventing monopolization, ensuring access to medical care, and the right to choose a doctor are social norms and, therefore, part of the public interest. Additionally, non-compete restrictions affect a physician's right to practice. Striking a balance between these factors is challenging.

Enforceable physician non-compete provisions can be found in various types of agreements, including employment contracts, partnership agreements, and the sale of medical practices. However, the complexity of blending legal, ethical, and social concerns with varying legal approaches underscores the significance of this research.

This study draws from regulatory frameworks in Germany, the UK, Spain, Switzerland, and the USA, as well as existing scientific research and opinions from experts in this field. The article employs dialectical, comparative, analytical, synthetic, and comprehensive methods.

Non-compete agreements can offer social benefits in certain situations, such as safeguarding trade secrets to encourage innovation and potentially enhancing the quality of medical services by reducing the likelihood of employees leaving prematurely. However, there are also substantial risks to employees, employers, and society at large.

In a general sense, a non-compete clause comprises seven key elements: the parties involved, the form of the agreement, the duration, the geographical scope, the nature and extent of the restrictions, the potential "buy-out" provision, and compensation. These characteristics are fundamental to the non-compete clause. While the principle of contractual freedom allows for a wide range of agreements, it is the responsibility of legal practice to determine the minimum and maximum limits of such restrictions.

In the United States, the legal framework is distinctly grounded in the imposition of legally defined restrictions on non-compete agreements, including those involving physicians. European practice shares a similar understanding of what non-compete agreements entail and the principles guiding them. However, European approaches differ due to the absence of specialized legal provisions governing non-compete agreements for physicians.

The lack of consistent legal regulations and enforcement practices in this field on a global scale is evident. The first step in addressing the enforceability of physician non-compete agreements is selecting an appropriate approach. After analyzing various concepts, it becomes clear that the most promising approach involves specifying and clarifying the notion of "reasonableness" in assessing the validity of physician non-compete agreements and their impact on the public interest.