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Episode 87: Should Noncompetes In Anesthesia Be Outlawed? w. Dr. Brian Schmutzler & Barb Molargik-Fitch, JD

Mar 1, 2021

This Episode

Interview w/ Dr. Brian Schmutzler & Barb Molargik-Fitch, JD

You Will Learn

– Common advice that Barb gives physicians, and most entrepreneurs when it comes to contractual agreements
 
– How Barb helps clients who have signed contracts that feel pressured with non-competes
 
– Brian’s experience with non-competes and the importance of knowing what you plan to do next

Resources & Links

This week, I sat down with Dr. Brian Schmutzler and Barb Molargik-Fitch to discuss non-compete agreements. I’ve seen times when anesthesiologists have been treated in some cases the same as other specialties when it comes to non-competes when sometimes that is the most reasonable and logical path forward. We talk about how non-competes are manifest in the lives of anesthesiologists, how it varies by state and what it might mean for you.

 


Justin (00:03):
This week, I’m tackling a topic that has long been one of interest for me, and I was just waiting to find the right crew to have this conversation with. And I’ve found them this week. I have joining me a, an anesthesia group owner, as well as an employment attorney to talk about non-competes and there’s going to be some, you know, complex and legal conversation happening. Obviously none of this should be construed as legal advice and make sure you’re talking to a qualified attorney in your own state before you make any decisions that could impact your career.


Justin (00:56):
But I have seen that, you know, anesthesiologists have been treated in some cases the same as other specialties when it comes to non-competes. And I don’t think that is the most reasonable and logical path forward. So we talk about how non-competes are manifest in the lives of anesthesiologists, how it varies by state and what it might mean for you. If you’re thinking about making a switch on your job. So as always, thanks for tuning in hello and welcome to episode 87 of the anesthesia and pain management success podcast. I’m very pleased to be joined today by a couple of guests, Dr. Brian Schmutzler. Who’s now a friend of the show been on a couple of times, and he’s connected me with his legal counsel, Barbara Malartic Fitch. And she’s an attorney based in Indiana where Brian’s located, and we’re here to talk about some interesting employment law questions that the three of us have run into at different times in our travels. And you may hear in the background, my little guy running around my wife has post-call and Calvin is running a muck. So we’re going to try to edit out as much of that as possible, but that’s, what’s going on in the Harvey household on a Saturday morning. So guys, thank you for joining today. Absolutely.


Dr. Brian Schmutzler (02:03):
Thanks for having me again,


Justin (02:04):
Specifically, we’re going to be talking about non-competes and I know I have my own opinions about how these and should look as a, you know I would say an unabashed physician advocate, wanting doctors to have the best lives possible. Cause I think that translates into the best patient care and patient outcomes possible. So Brian, you know, as you think about non-competes, obviously you’ve been in many different sort of formats for your career as an employed physician, as a business owner in private practice in academic medicine. Tell me a little bit about how you think about this idea.


Dr. Brian Schmutzler (02:36):
Well, I’ll just come out right out and tell you my opinion to begin with. I think for anesthesia providers non-competes in general are, are not, not really something that should be present. You know, I’ve dealt with them on both ends, as you said. And I think just in general, when you think about why do we have a non-compete what’s to protect a business interest and really anesthesia providers don’t have their own patients. So patients come to us from surgeons from proceduralists. And so I think it would be highly, highly unlikely that any patient would come to a particular facility or to a particular surgeon because of an anesthesiologist. And so my big problem is, is sort of on a fundamental level that really it’s, it’s a restriction of your ability to work without really any background or any fundamental background to it. So I’ll tell you a little bit about so I’ve, I’ve signed non-compete before one, maybe Barb one non-compete in the past. And, and, and since that time I learned my lesson, I don’t, I don’t sign contracts that have non-competes particularly broad, wide ranging non-competes


Justin (03:49):
That strikes me as a pretty bold statement. So I’m curious, you know, somebody might say, Brian, that sounds amazing. Like, I would love to have a rule like that. Like I don’t do non-competes, but that sounds like something that could only be a principle for somebody with some negotiating leverage. And maybe if you’re geographically constrained, I’m going to be in this city. There’s only one game in town and I got to kind of take what’s given you know, how do you think about that?


Dr. Brian Schmutzler (04:11):
Yeah, so certainly when you first come out of residency, it’s going to be very, very difficult to, to negotiate a contract that doesn’t have a non-compete if the, the group or the, the company you’re joining has a non-compete built into their standard contract. That being said I think in Barbara touched on this a little bit, I think there’s some portions of the non-compete that you can at least negotiate scope, distance time, that sort of stuff. And yeah, I’m in a little bit different position than I was when I first came out of residency. You know, I, the last few contracts I’ve signed have been people who’ve come to me sort of asking for my help, asking for me to help their, their anesthesia programs. And so I, that definitely gives me the leverage to say, I’m not going to sign a non-compete, but I’ll tell you on the flip side of that, I’m, I’m not an unfair person.


Dr. Brian Schmutzler (05:02):
The CRNs that we employ don’t have non-competes either. So if, if a CRN that works for me wants to go across the street and work at a hospital across the street, they have full reign to do that. The only way we kind of structure our non-competes those within the facility. So what I don’t want to happen is for a CRN to kind of learn the practice and then go to whomever the contract is with an undercut me and try to take the contract away. That, that I think is a reasonable, reasonable reason to have a non-compete, but in general, if I’m not treating them well and they want to go across the street, that’s, that’s their, that’s their prerogative.


Justin (05:37):
I feel exactly the same way. And I think that’s why we kind of resonate on this as people don’t go to XYZ hospital, because I want to work with that anesthesiologist. It just doesn’t happen in practice. And so from my standpoint, I think having very onerous restrictive non-competes for, in, for anesthesia, any anesthesia provider practitioner, it just, it, it doesn’t make sense cause there’s no business threat to that person going to the hospital across the street, in my opinion. Now, if there’s some circumstance where there’s a special systems knowledge, or like some kind of, you know, inside information, that’s like critical business information, frankly, I think that’s probably covered under like a confidential information clause and not a non-compete. So that protection should still be there, but the non-compete itself for anesthesia providers, I just, I think it doesn’t make sense. And I think that there should be some specialty specific awareness when it comes to non-competes and physician contracts, because you couldn’t say the same of an orthopedic surgeon or a spine surgeon, or I’m going to go three States away to go see Dr. Smith because he’s renowned in this and that, that happens in some circumstances. And so I think that us, I just think we need to use a finer point at least, you know, as we think about this broadly in society and as an employer and as employees, as classes of people to be able to improve the situation for everyone. That’s my opinion. Barb, what have you seen in this?


Barb Molargik-Fitch, JD (06:58):
Yeah, absolutely. So first I want to get my standard disclaimer, cause I’m a lawyer and like to give disclaimers I’m an attorney licensed to practice law in the state of Indiana. So I can only give specific thoughts as Indiana law. But today I’m also just going to talk about some general principles related to non-competes. But I always recommend everybody get their own lawyer and their specific state to get a formal legal opinion. But overall, some thoughts non-compete laws really vary by state. Some States have statutory law, some States have case law, some States have both on the subject of non-competes. And they really vary. Some States are really anti non-competes and you can only have a non-compete in a very limited situation and some States don’t ha don’t like non-competes with it when it comes to physicians. They see that that has harmful to the public.


Barb Molargik-Fitch, JD (07:47):
If a physician, especially a physician who specializes like a surgeon or anesthesiologist, if they have to leave the Northern half of the state that is going to affect the community, they may not be able to get surgeries, you know, in time that could, I mean, that could literally cause patients to die because they can’t get a surgery in time. Other States will enforce a non-compete if it is considered reasonable in Indiana as one of those States. And so there are several factors that a court looks at in Indiana and some other States to determine whether a non-compete is considered reasonable. And one, and Brian had mentioned earlier is whether the restraint of the non-compete is necessary to protect an employer’s legitimate business interests. And if it’s not, if it’s overly broad than a court might find that to be unreasonable. There’s some other factors that the court is going to look at such as the duration of the non-compete geographic extent of the non-compete and the scope of activities.


Barb Molargik-Fitch, JD (08:51):
And so just to give you some examples in Indiana one or two year time restriction may be seen as reasonable, but in some circumstances, a five to 10 year may not be reasonable. A 25 mile radius non-compete from a physician’s location that they practice that might be considered reasonable, but an entire state or a nationwide restriction in some situations may be considered unreasonable. So when a physician is looking at these agreements, you really want to be very, very careful to look at the scope of that non-compete and it also, as you guys had mentioned, it really depends on your negotiating power. If you have no negotiating power, you may not be able to negotiate as much. Whereas if you have less negotiating power, you can say what you want in the contract. But physicians right at a med school, they still need to look at that provision carefully and still consider trying to push back. Some, some physicians, they, they traveled to an area, get a job, and then you set up there, you have a family, you are involved in the community. And if your non-compete is too broad, then if it doesn’t work out, you might have to leave the area. So you really want to be careful about trying to shrink that non-compete scope as much.


Justin (10:06):
Yeah. And this dovetails nicely with a bit of advice that I always give, especially if it’s your first job out of training and you’re, especially if you’re moving across the country to take a job, understanding the terms of your non-compete. It goes a long way to have very practical life and financial planning implications for like, should I buy a house? Because if there’s four places, you can work in a given town and the, the non-compete you sign is very flexible and very reasonable. And you can go from practice a to practice B to practice C without leaving town. That’s great. And buying a house might be very reasonable if you definitely want to be in that city. But if you’re in a place where there’s one game in town and the noncompete is 50 miles from any location in the state, then it’s like, Holy cow, if I quit, I’m going to have to leave the state. And you’re better off renting to make sure that that job is going to work out, you know, with regards to the footprint. Can you give us some of the things to think about? Cause I’ve seen this look a lot of different ways as far as how big is the actual radius and from which places is the radius being measured.


Barb Molargik-Fitch, JD (11:05):
Yeah, really good question. So it’s very, very contract specific when courts are looking at these cases. They’re so fact-specific because you’re looking at the specific language of the contract, you’re looking at the specific facts of the case and then applying the law. So I seen all kinds of different contracts. I’ve seen two, your restrictions, three re your restrictions. I just looked at a contract. It was a one-year restriction. Sometimes it is one County restriction, two County restriction. Sometimes it’s a radius. I just, I just read one that was 15 mile radius from the practice site and the practice site was defined as multiple locations. So when you’re looking at that, before you signed it, you really got to get a map out. You gotta map out all those locations, do a 50 mile radius to really see like what, what that scope looks like to figure out, okay, this doesn’t work out.


Barb Molargik-Fitch, JD (11:57):
What are my options at other jobs? And when it’s that big, sometimes it can get a little confusing when you, when you want to try to leave to try to figure out, okay, what is the scope here? So trying to like narrowly tailor that scope and make it really clear. So for example, if you say 15 mile radius from my practice site located at, and you have address that is helpful to you, if you want to leave, because now you can go, okay, there’s an employer over here, let’s get their address, my address, pop it in a MapQuest. How many, you know, how many miles is that? If it’s over the 15 restriction, then now, you know, you have kind of a good certainty that, that restriction doesn’t apply to this employer over here, but when it’s so big sometimes it’s difficult to know if you’re going to violate your contract try trying to get certain types of jobs. So it’s very important to make sure the non-compete is clear, limited in scope. And sometimes even if you’re just out of med school, you don’t have a lot of negotiating power trying to get clear language. It’s sometimes that’s a fair request and some employers will modify the language some. So it’s always nice still to at least try to request the language to be revised. Even if you can’t get exactly what you want early on in your career.


Justin (13:17):
That makes a lot of sense. And I think you bring up another good point, which is even, you could say even more important than the actual terms is understanding expectations and clarity. So if you go in and there’s a terrible non-compete, but you know it, and you can plan accordingly, that’s very different than if you go in and you don’t really think about it and then you try to leave and then you find out maybe after you’ve already given notice, like, Holy cow, I need to, I need to like move three cities away to be able to continue to


Barb Molargik-Fitch, JD (13:43):
Work. Yeah. It’s very important before you sign the agreement, you really understand the implications of all the language and some employment agreements. They’re very complicated, lots of words. And you just got to make sure you understand what those words mean and how it can impact your future. And when you go into a relationship, usually it’s a good one. Usually you’re not going into an employment relationship thinking it’s going to be bad. But you really have to think of all the scenarios that could happen because I mean, a, a contract really matters when the relationship goes South. So you really have to prepare for that in the future. And sometimes it’s hard cause you have a good relationship initially. So like, Oh yeah, you know, I have a good relationship with this employee. I’m just gonna sign this. Nothing will happen, but then something does happen. So you really got to think about when you’re setting the agreement not how the relationship is now, but what, what are some of the worst case scenarios that could happen and how is that going to impact me?


Justin (14:34):
Yeah, that’s precisely the advice I gave as a non attorney, like think about all what we’re doing is protecting against all of the possible worst case outcomes. So always look at your contract as if you’re an adversarial party to the employer. And like, they’re going to try to take you for all you’re worth and you need to advocate for yourself. And in that scenario, what do you want the terms of the agreement to say, I’m curious in terms of the testing, the border of reasonability, what your experience has been, have you worked with people who may be challenged and non-compete that they thought was unreasonable and the court said, Oh no, this is fine. Or vice versa. And how have you seen that kind of play out?


Barb Molargik-Fitch, JD (15:12):
Really good question. So so in Indiana Indiana generally doesn’t necessarily favor non-competes, but courts will enforce them at the reasonable. So of course it’s really going to dig into the facts of the case. So for example, a few years ago we had a case very interesting and involved two CRNs they worked for a medical service provider and that provider provided anesthesia services at a hospital. Well, they then left, went to work for another provider who then provided services at the hospital. And that case, the court actually determined that the, the employer in that case did not have a protectable business interests to enforce the noncompete. And so there, but there were some really unique circumstances in that case. One was the, the first employer actually turn it its relationship with the hospital. And so courts often look at fairness, what’s fair, what’s reasonable.


Barb Molargik-Fitch, JD (16:10):
And so it wasn’t really fair. Okay, we’re going to terminate this relationship with the hospital VCR days leave. And then another provider is going to provide services at the hospital, say, no, you can’t provide service at the hospital. When they, when they terminated the relationship anyways also this core, the court of appeals in this case pointed out an interesting observation from the trial court that, that noted that patients in this case do not make a choice about medical care on the basis of a CRN. And so that’s an interesting point with certain types of healthcare workers and doctors like a radiologist and an emergency room, physician, Nancy physiologists. A lot of times they might work with a patient once and then, and then not again. So the patient doesn’t necessarily build that relationship with the doctor to then if they leave, follow them. So if the patients aren’t going to are going to leave, then what is the protectable business interest is? You know, and it’s an interesting question that really needs to be.


Justin (17:11):
So what you’re saying is precisely what we were describing before that dynamic, the courts recognize that and said, because of that, they found in favor of the employee who was trying to leave.


Barb Molargik-Fitch, JD (17:23):
Yep. And there are cases where core has found that a certain restriction is reasonable, like a three County restriction or one County restriction one year restriction to your restriction, especially if the doctor was involved with like re recruiting, building the business maybe an owner in the business and the doctor could take business away. Of course it’s going to be more likely to enforce that, but if, if it’s an employee who has nothing to do with the business, they, if they leave, they’re not going to take any business away. A court may or may not find that to be as reasonable as the first scenario.


Justin (18:00):
I think that’s an important distinction and I want to zoom in on it real quick. So the partner of a business and owner, a shareholder who has significant sway, maybe they’re an anesthesiologist and, and they might be in some ways, Oh, the anesthesiologist shouldn’t be subject to an onerous noncompete, but if the value that they bring to the business, isn’t primarily through their actual clinical practice, but it’s more from a strategic business decision. You know, that leadership type of role then in that case, the facts of the case may be that th the non-compete would be more, I guess, enforceable compared to somebody who’s just an employee.


Barb Molargik-Fitch, JD (18:41):
Yep, absolutely. I think, and in a lot of different States if you have a business interest, an ownership interest in the business, and then you leave or you sell the interest, I feel like the non-compete is going to be, have a better chance of getting an enforced. If you’re just an employee, you have nothing. You’re not taking any business away, and there’s not a protectable business interest there, but where you have ownership and you’re a leader, I think that you could do more damage to the business than just an employee. So, yeah, I do think that courts do give way and have given weight to owners of a business by arguing. My argument would be that should be built into other restrictive covenants. So that’s not really your non-compete to practice anesthesia. And so that, that’s a big problem that I’ve had with a lot of these non-competes is you know, build that into a separate restrictive covenants. You can’t go somewhere else and use this knowledge to build another business based on this knowledge, as opposed to you can’t go across the street and practice anesthesia. So


Justin (19:43):
I agree. Can you elaborate on that, Brian, what other restrictive covenants are in play that could also be protective in this type of context?


Barb Molargik-Fitch, JD (19:49):
Oh, well, I’ll, I’ll try and then I’ll kick it to bar, but certainly there’s confidentiality agreements. So, you know, you can’t take any confidential information and use that to either build your own business or harm the previous business. There’s solicit non-solicitation clauses, which is you can’t leave and then try to take all of our employees with you. Barb I’ll kick it to you. Those are, those are pretty good. So some States that don’t like the non-compete, some of them, they will enforce the non-solicitation. So they’re basically saying, okay, we’re not going to limit you from your job. But you can’t take our patients with you. You can’t take our employees with you. And so I think courts are, are a lot more likely to enforce those non-solicitation provisions, even in the States that don’t like the non-competes. So the non-solicitation the confidentiality. I think those provisions are going to be very likely to be upheld in a court than in some States that don’t like the non-compete. I think that


Justin (20:48):
Makes perfect sense. And I think it’s, this is precisely, I guess this is precisely what I’m saying is that the non-solicit creates all of the protection that is needed in order to preserve the business interest of the owner. And so the non-compete, it just, it has no real utility in my opinion, except to be kind of onerous for the employee. Who’s just trying to get a job. That’s my opinion.


Barb Molargik-Fitch, JD (21:14):
And especially in healthcare because doctors that have to leave the community that affects the patients and the community, especially with, with more specialized doctors, like a surgeon, you can’t just go hire a surgeon off the street. I mean, it, it could take a year to replace that surgeon. And so then how many surgeries have to get pushed back because that surgeon had to leave the state or leave that the three County area. And so I do think with, you know, doctors, especially that affects the community. I think one thing to bring up, and this is this is sort of applicable to Barb and I in Indiana. As of July 1st, I can’t remember it’s 19 or 2020 last year. The the state of Indiana now requires physician non-competes to include some sort of reasonable way to purchase your way out of a noncompete. And so I think that’s a, I think it’s a step in the right direction. I, I mean, I don’t think it goes far enough, but I think it’s a step in the right direction to allow physicians to say, okay, I signed this non-compete and maybe I shouldn’t have signed this non-compete, but at least there’s a financial way to get out of this non-compete and go on with my life. And so I think there are a few States that do that, and I, I can’t remember which ones, but


Justin (22:30):
Liquidated damages is that what that’s called or one of the mechanisms by which that’s achieved.


Barb Molargik-Fitch, JD (22:36):
So, yeah, send me in a law requires there are several components now that has to be in a physician non-compete agreement for it to be valid after July 1st does and 20. And one is when Brian’s talking about it, as it says, there has to be a provision providing the physician an option to purchase a release from the terms of the enforceable physician, non compete agreement at a reasonable price. So sometimes it’s called a buy-out the, the issue with reasonable price is not defined. And so what does that mean to an employer? Maybe that means a million dollars is reasonable, but to the employee, maybe that’s $50,000. So our practice pointer is for our physicians negotiating these non-competes ask, you know, define what reasonable price means in your contracts. If you can get a number of worked out in advance, then now, you know, when it’s going to cost to buy out of your non-compete, if you just go with the reasonable price language, then once you go to try to leave your employment, you’re going to be surprised with this number that we don’t know what Indiana court is going to consider to be reasonable.


Barb Molargik-Fitch, JD (23:38):
So another practice point, or just try to negotiate that, to get that to be as, as clear as possible. So, you know, what you’re yourself into, but I agree with Brian, I think that we were headed in a right direction with this in Indiana.


Justin (23:51):
And I would say, furthermore, on the negotiating side, you can negotiate it from both ends. So if you know where you’re going to land and you know what the outclause says, if it’s a $50,000 buyout say, Hey, practice X, Y, Z, I’d love to come work for you, but it’s going to cost me $50,000 to extract myself from my current arrangement. Maybe you can help me out here.


Barb Molargik-Fitch, JD (24:08):
Yeah, exactly. Do you know what it’s going to be? That happens a lot. Yeah. Yeah. But if it’s a million dollars, well then that’s, that’s not always reasonable for, for some physicians, especially like newer doctors. Right. I, you know, a few years out of med school


Justin (24:23):
And hopefully a court would agree.


Barb Molargik-Fitch, JD (24:25):
Yes. Hopefully, hopefully we’ll get some case law on that at some point. I’m sure it’s going to get adjudicated fairly quickly. I know a lot of the private practice groups were really struggling with this, at least in Indiana. So I, I think I imagine it’ll take probably three to five years and we’ll get some, some more clarity on what that number is going to end up being.


Justin (24:45):
Can you talk a little bit Barbara about the difference between case law and statutory law and sort of how those ideas interact?


Barb Molargik-Fitch, JD (24:52):
Yeah, absolutely. So the, the statutory law that’s going to be law passed by the state legislator. So that’s going to be our codified law. So we can go to that, look at that, read the provisions. And then we kind of know what it says to try to rely on that law and kind of predict, you know, whether a non-compete is enforceable or not. If it’s in compliance with the law, or if it’s not in compliance with the law case, law is going to be law that is reviewed by a court. And so a judge is going to hear a case, both sides of the story, and the judge is going to render a ruling. And in India we have the trial court level, the court will issue a ruling, and then that can be appealed to the pellet court level at the Indiana court of appeals. Which is the case I had referred to earlier that was Indiana court of appeals case. They’re going to issue an opinion which then becomes law that is binding and that the entire state and then in Indiana, you can appeal it to the Supreme court level. And then there’s their state court and there’s federal courts. There’s different, different types of core systems that issue case law.


Justin (25:55):
So if I’m a you know, an employee trying to extract myself from what I deem to be an onerous noncompete, how should I think of it? You know, if I say, Oh, there’s precedent at the appellate court level, the 25 mile radius from one site was deemed to be unreasonable and it was shrank to 15. Is it, is it appropriate? Can I look at that and say, I think that this is worth appealing or worth getting counseled because there’s a job 17 miles away that I really want. And it’s sort of in that range, is that a way to think about it? Or how would you counsel somebody?


Barb Molargik-Fitch, JD (26:27):
Yeah. Yeah. So before you make a move like that, I have doctors come to me all the time saying, Hey, I work here. I here’s my agreement. I have this restriction. I want to work here. Can you look on my agreement and tell me if this is outside of my non-compete, is this going to get me into trouble? So what I do is I at the specific language of the agreement and knock a P and I break it all down and analyze it all the different, the components, the duration, the geography, the extent is there a protectable business interest here? What is the definition of competitor? Usually they’ll say the scope of activities. So if you were practicing as a, a surgeon general surgery here, then you can’t go practice general surgery for competitor or sometimes it’s even broader than that. So it would take a look at all of that.


Barb Molargik-Fitch, JD (27:11):
Then what I do is I look at the Indiana case law, and sometimes you can find it, it might be able to find a case with similar effects to yours, and then you can see how a court looked at that non-compete and how it ruled. And so if you can find that, then you can say, okay, we have precedent here. And so my case is like this case over here, where the court determined that the non-compete was invalid. If you, but sometimes you don’t have that. That’s not out there. And so then sometimes you have to make a good faith kind of argument and guests of how that would go. And then there’s, there’s some risks there you think, okay, this non-compete it’s overly broad and duration, overly abroad and geographic scope. There’s not a legitimate business interest. Okay. I don’t think that this non-compete is valid.


Barb Molargik-Fitch, JD (27:55):
We go to court, I think I might win, but there’s a risk that you could lose. So you have to kind of balance that risk when you’re trying to determine, okay. If I leave am I going to get in trouble here? Is it a vial I’m in violating this contract? I think no, but my employer might think yes. And so you just have to kind of balance that, do a cost benefit analysis and then kind of decide, okay, what’s my appetite for risk here. Do I want to take this risk or do I not


Justin (28:22):
Makes sense? So if I am a physician interested in trying to get out of a non-compete, can you give us a sense in terms of like working with an attorney to get a qualified opinion on this stuff? Like, what does it cost us to say? Here’s what I think, and here’s what I think we should do versus if we go to trial, here’s what it’ll look like.


Barb Molargik-Fitch, JD (28:38):
Yeah, really good question. So often a trays for contract review will charge an hourly rate. So I mean, in Indiana that, you know, might be cheaper than California. So it might be like, you know, two or $300 or two to three 50 or whatever for, you know, three to five to 10 hours of analysis, depending on the complexity of the agreements, how many agreements there are, are you an owner or is it just an employment agreement? And then are you looking at another employment agreement? Whereas if you go to court and litigate, I mean, that could be many thousands in attorney’s fees. That could be 50,000 in attorney’s fees. And then depending on your agreement, depending on what it says you could be responsible if you lose four, the other side’s attorney’s fees. So you really got to pay close attention to that issue in your contract. When you’re considering, do I want to chance this and fight this in court? Because you could be on the hook for double attorney’s fees. So that 50,000 attorney’s fees could turn into a hundred thousand in attorney’s fees. So you really have to assess all of that very carefully. When you’re deciding what your next move is going to be


Dr. Brian Schmutzler (29:45):
Point of you from a practical point of view, what I would say is get an attorney to look at your agreement, figure out where you stand. If you think you’ve got a halfway decent case, and you think that your employer is somewhat reasonable, go to the employer and say, listen, I don’t think this is fully enforceable. Let’s work something out. I mean, that’s that’s, and that’s not legal advice. That’s just my own practical business advice to try to try to get it figured out, try to get it settled without having to get, get into court or into lawsuits or anything like that. So,


Barb Molargik-Fitch, JD (30:17):
Yep. And some employers will, will take, you know, that and your honesty and your sincerity, and some of them will work with you to get a, you know, let you out of the non-compete or maybe they decide that where you’re going, it’s outside. They’re not going to be, or it’s not a competitor. So so sometimes that approach does work. Sometimes you have to be careful though, because if you go in and say that you want to leave, then that can make your employment difficult. So you just got to kind of really assess your work environment, assess the contract and just kind of consider everything, all the factors.


Justin (30:49):
Totally. And I think that’s just, it warrants repeating at this point that so much of the so much of the controllables is just clarity in expectation and in terminology, because if it’s very clearly outlined, even if you think it’s unreasonable, at least you’re going to know, well, is it 25 miles from here or from the, this cluster of sites or, and then you’ll at least have a little bit more information to say, is it worth paying a lawyer two to 4k to look at this contract to tell me if I should then continue to raise the stakes? Yeah, absolutely. Brian, from your standpoint, are there any other sort of you know, if, if a doc comes to you and is asking advice, any other practical considerations, or as we take these legal principles and apply them to the real world of the practice of anesthesia, anything else that you think is worth keeping in mind?


Dr. Brian Schmutzler (31:37):
Yeah, I mean, I would just, I would just be sure that when you sign that non-compete, you know, what your next step is going to be, you and I talk about this all the time. You know, I’ll always being one step ahead. No, no, what you’re going to do next. So if you know that your next step is going to be a place that’s 10 miles away and your non-compete has a 20 mile radius, you know, maybe that’s not the right job or, or maybe you talk to them and say, Hey, let’s make it a 10 mile non-compete East and not West. You know, where I am in Northern Indiana you know, a couple miles from the Michigan border. So maybe for me, if I say, Hey, you know, my ultimate dream job is in Michigan, just across the border. Hey, I’ll sign a non-compete for 10 miles within the state of Indiana. So, but then I can still go, go up to Michigan. So I think you just gotta be a little bit creative with it and know what your next step is, know what your next step is going to be.


Barb Molargik-Fitch, JD (32:32):
Absolutely. Yep. And some employers will work with you and they might carve out some limited exceptions for you. Sometimes you won’t know though, unless you ask


Justin (32:44):
As we wrap up here Barbara, is there anything else that we haven’t covered or other key concepts or considerations that are worth keeping in mind?


Barb Molargik-Fitch, JD (32:52):
Mean, so just some final practice pointers, of course, before you sign any agreement just in life in general, make sure you review it carefully. And of course my advice is to have it reviewed by an experienced contract attorney. Cause some of the language can just get very tricky and you just want to be really, really careful for non-competes trying to go shooting the non-compete as narrowly as possible before signing, you know, for the duration, if they’re giving you a three year, no, maybe try to negotiate that down to a one year. If it’s a three County restriction, maybe you can try to negotiate that down to a one County restriction. If, if there’s your state requires a buyout, you know, what is reasonable, maybe you can come up with a number, just try to negotiate that contract as best as possible to make it as clear as possible so that if you do leave, then you have options.


Justin (33:41):
It makes perfect sense. I think that’s a great note to end on Dr. Brian, Schmutzler Barb, Malartic Fitch. It’s been a pleasure speaking with both of you today. I really appreciate your time and your expertise. Thanks for joining us on APM success. Thanks for having us. Thanks. If you liked what you heard this week, head on over to APM success.com, where you can find more content and free resources to help you build a successful career in anesthesia and pain management. If you want it to leave a review in iTunes, I’d also really appreciate it. Thanks for using some of your valuable time to join me today on APM success.

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