Whether noncompete clauses arebinding in health care — especially when patient care is disrupted— is a point legal scholars debate.

When Don Cue developed a bladder infection last fall, he calledhis longtime urologist's office for a urine culture andantibiotics. It was a familiar routine for the two-time prostatecancer survivor; infections were not uncommon since he began usinga catheter that connects to his bladder through an incision in hisabdomen.

When Cue called this time, a receptionist told him that hisphysician, Dr. Mark Kellerman, no longer worked at the Iowa Clinicin Des Moines, a large multi-specialty group. She refused todivulge where he'd gone.

“As a patient, 'scared' is too strong a word, but my feeling is,'What do I do now?'” said Cue, 58.

Flummoxed, he solved his immediate problem by taking leftoverantibiotics he had in his medicine cabinet.

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It was only later that he learned his doctor had been fired bythe Iowa Clinic and planned to start a urology practice with cliniccolleagues. And, under the terms of their contract with theirformer employer, the doctors were banned for a year from practicingwithin 35 miles of the clinic and from recruiting former patientsto follow them.

Contracts with so-called restrictive covenants are now common inmedicine, although some states limit their use. Noncompete clauses— common in many commercial sectors — aim to stop physicians orother health care professionals from taking patients with them ifthey move to a competing practice nearby or start their own. Butwhat may be good for business is bad for patient care — andcertainly disquieting for those whose doctors simply disappear.

One survey of nearly 2,000 primary care physicians in fivestates found that roughly 45 percent werebound by such clauses.

Continuity of care is important, doctors say, especially forpatients with ongoing medical issues. Cutting off access to adoctor is different from disrupting someone's relationship with afavorite hairstylist or money manager, they say.

“When doctors want to move from one practice to another, ifthey've got good therapeutic relationships with their patients,you'd think that public policy would want them to continue to treatthese patients that trust them,” said Judy Conti, governmentaffairs director at the National Employment Law Project.

Charlie Wittmack, a lawyer at Hartung Schroeder in Des Moines,is representing Kellerman and the two other urologists who werealso fired in a lawsuit against the Iowa Clinic. The wrongfultermination suit asks the court to declare the physicians'restrictive covenant provisions unenforceable. Wittmack said thecontroversy there was “tragic” for patients. “These are people whohave prostate cancer or are in extreme pain because of kidneystones or have blood in their urine.”

Ed Brown, the clinic's CEO, said the noncompete agreements arenot just about business but also help ensure that the Iowa Cliniccan provide reliable services.

“Noncompetes are good for the patients because they help toprovide stability within a practice and ensure continuity of care,”Brown said recently in an email. Further, he added, noncompetesprotect physicians by ensuring that other physicians in thepractice are committed to the same agreement and can't abandon itwithout proper notice.

The urologists “believe they can make more money elsewhere, andthey don't want to be held to any contractual responsibilities,” hesaid.

Even when longtime patients go sleuthing to find their doctors'new offices, they may not be accepted into those practices.Hospitals and clinics say they have little choice but to respectthe terms of business agreements that others have negotiated.

UW Health, the health care system for the University ofWisconsin-Madison, recently hired three primary care doctors whohad worked across town, said Dr. Sandra Kamnetz, vice chairwoman ofclinical care for the Department of Family Medicine and CommunityHealth at the University of Wisconsin's School of Medicine andPublic Health. They are taking great pains not to treat any of thenew doctors' former patients because the terms of the doctors'contracts with their old employer prohibit them from taking care offormer patients for two years.

Staff at the UW clinics ask prospective patients if they've everbeen seen by one of the doctors. They then check the patient'selectronic health record to confirm there are no messages,prescription refills or other recent contact with the new UW Healthdoctors and that patient at the previous job, said Kamnetz.

When Don Cue called his longtime urologist in Des Moines to getan appointment, the receptionist said the doctor no longerpracticed there and would not explain why or where he had gone.

“Patients get frustrated, but what they may not understand isthat this is a legal thing that we have to abide by,” she said.

Whether noncompete clauses are binding in health care —especially when patient care is disrupted — is a point legalscholars debate. In general, to be enforceable, the agreements mustbe reasonable and narrowly drawn so that they protect an employer'slegitimate business interest but don't unduly restrict a doctor'sability to make a living.

Courts may weigh whether enforcing a noncompete clause wouldcreate a physician shortage in a particular region or specialty.The guiding principle is patient choice, said David J. Clark, apartner in the New York office of the law firm Epstein Becker Greenwho has analyzed state noncompete statutes in health care.

“No court is going to deny a patient who wants to go see adoctor of her choice,” Clark said.

Most disputes are settled before they make it to court,however.

A recent report by the Trump administration evaluating how topromote choice and competition in health care recommended thatstates examine noncompete agreements for their effect on patients'access to care and the supply of providers.

Several states, including Massachusetts and Colorado, that allownoncompete clauses in employment contracts generally won't enforcethem against doctors, according to Clark's analysis.

Other states, such as Texas and Tennessee, place limits on theagreements. In Texas, for example, a noncompete pact must allowdoctors to have access to a list of their patients in the past yearand access to their medical records, among other things, Clarkfound.

Medical board rules take it a step further. “In Texas, when aphysician leaves, the practice is required to cooperate with aphysician who wants to put up a notice that says this is where thatphysician can now be contacted,” said Kathy Poppitt, a partner inthe health care and government and internal investigationspractices at the Austin, Texas, office of King & Spalding.

The American Medical Association, which represents doctors,doesn't oppose restrictive covenants outright, although itspolicy notes they can limit patients' choices. “To the extent thatthese agreements disrupt continuity of care and disrupt patientchoice, this is of great concern to the AMA,” said Dr. PatriceHarris, the organization's president-elect.

For patients in central Iowa, the departures of longtimeurologists at the Iowa Clinic is dizzying. After Kellerman and hiscolleagues left, five of the clinic's remaining seven urologistssubmitted their resignations. They are also subject to noncompeterestrictions. They left the practice in mid-February.

Brown, the clinic CEO, said the urology department has replacedfour of the eight urologists and has nine nurse practitioners orphysician assistants to treat patients. The clinic is continuing torecruit physicians and advanced practice providers like nursepractitioners.

Susan Murphy, 72, has seen a number of doctors in the urologydepartment. Dr. Richard Glowacki, one of the urologists who leftwith Kellerman, performed surgery to remove her kidney stones morethan a decade ago. Another, Dr. Stephanie Pothoven, did surgery torepair her prolapsed uterus a few years ago.

Murphy said she got a letter from Pothoven announcing herdeparture. It didn't provide details about where she would begoing.

“I've got it etched in my brain to find out where they went,”she said. She has no plans to return to the Iowa Clinic. “Somehowthey lost sight of patient care and were more concerned about thebottom line,” she said.

Kaiser Health News isa nonprofit news service covering health issues. It is aneditorially independent program of the Kaiser Family Foundation,which is not affiliated with Kaiser Permanente.

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