Physician Non-Solicitation and Non-Compete Agreements

Doctors, particularly specialists, routinely enter restrictive covenants as part of employment or partnership agreements. Most common of these restrictive covenants are the non-compete agreements and non-solicitation agreements. Heated, and often expensive, legal disputes can arise when a doctors want to leave one physician group for another or desire to form their own practice.

Requirements for Enforceability

Generally speaking, Illinois courts will enforce physician covenants not to compete or non-solicitation agreements so long as they are reasonable. Courts determine whether a restrictive covenant is reasonable based on the totality of circumstances test. Under this test, a restrictive covenant will be considered reasonable if it is narrowly tailored in scope, duration, and geographic area to protect a practice group or partnership’s legitimate business interests.

Emergency Litigation Procedures

Enforcing such restrictive covenants can lead to complex litigation where each side attempts to convince the court why the agreement should or should not be enforced. In many instances, the party seeking to enforce the restrictive covenant will suffer irreparable harm if it takes months or years to determine the enforceability of the covenant. By the time all is said and done, the practice could be ruined due to the patients and employees taken by the departing doctor.

Emergency litigation procedures such as temporary restraining orders (“TRO”) and preliminary injunctions exist for such circumstances. A court can enter a TRO enjoining (i.e. forbidding) the departing doctor from soliciting patients or employees for a short period of time (usually a maximum of ten days) so the parties can prepare for a preliminary injunction hearing. A preliminary injunction attempts to preserve the status quo during the pendency of the remainder of the litigation. It usually achieves this by requiring the departing physician to abide by the terms of the restrictive covenants until there is a final judgment or the parties settle.

In emergency litigation situations, time is of the essence. Having an attorney who is capable of performing at a high level on a short deadline can often be the difference between winning or losing a motion for a TRO or preliminary injunction. A win or loss on such a motion can have far reaching consequences to a practice that extend beyond even the remainder of the lawsuit.

There is no substitute for experience and nowhere is that more true than in emergency litigation. The attorneys at DiTommaso have been navigating the waters of emergency litigation for decades. They know what must be proven to win or defeat such motions and what evidence must be presented to do so. Part of their successful track record comes from having drafted and negotiated numerous restrictive covenants for employers and employees alike in Chicago, Wheaton, Lombard, Barrington, and the surrounding areas. Contact us online or give us a call at 630-333-0000.

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