Whether or not you practice within a jurisdiction that already prohibits covenants not to compete, and no matter what your thoughts are on their propriety, medical groups have a valid interest in, and its leaders a fiduciary duty to protect, the continued viability of the group’s business, including its business relationships.
In the past, many groups relied solely on covenants not to compete to protect against competition. But protecting one’s business interests isn’t limited to action on a single plane. Your business exists and interfaces on multiple planes and, therefore, the far smarter approach is to explore and adopt protection on each.
You can visualize this as a porcupine. In other words, lots of spikes pointing outward to deter one’s competitive opponents. Just because one spike, i.e., covenants not to compete, might get, or might have already been, clipped, doesn’t mean that there aren’t other spikes remaining.
The process starts with a 360° analysis of your current group structure and business relationships. It moves from there to explore the boundaries of current prohibitions. It identifies opportunities for the application of other strategies, some as permissible proxies for what is otherwise prohibited, and some as first-order strategies. Then, over time, implementation begins.
For most medical groups, the business (i.e., its personnel) walks out the door every night at closing time. Take steps to best ensure that it will return in the morning. The best time to start the process was years ago. The next best time to start is now.
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