Dentists and Non-Competition Agreements in Illinois: Is Yours Worth the Paper It’s Printed On?
Jordan Uditsky • October 15, 2019
There are over 4,800 dentists currently practicing in Illinois, according to the Bureau of Labor Statistics. Only four states have more dentists than the Land of Lincoln. That number makes for a competitive market, as well as one that provides a rich environment for dental professionals to find and seize new opportunities, either by joining another practice or starting their own.
As attorneys for the dental profession, we often receive questions about what limitations, if any, dentists can face from or impose on colleagues with whom they currently practice. Specifically, many dentists have signed or will be asked to sign non-competition or non-solicitation agreements, either as stand-alone documents or as part of an employment agreement.
But just because something is in writing doesn’t mean its worth the paper it's written on. Illinois courts will not enforce non-competition provisions that are unreasonably and unjustifiably broad or those unsupported by consideration. Poorly drafted – and thus unenforceable - agreements can give an employer a false sense of security, or cause a dentist to unnecessarily reject job offers or other opportunities.
This is not to say that all non-competition agreements in Illinois are invalid – those that meet the law’s requirements can be enforced. Therefore, it is important that dentists understand precisely what the law permits and what it doesn’t, no matter what side of a proposed agreement you may be on.
Non-Competition vs. Non-Solicitation
People often use the term “non-compete” as a catch-all for two related, but distinct,
limitations on future employment. But non-competition clauses and non-solicitation provisions are very much different, and the law treats them as such.
Typically, a non-competition agreement will purport to limit an employee’s ability to engage in their current profession or occupation within a specified geographic area for a set time. For dentists, this can mean that they agree not to treat any patients in the identified area until the end of that period.
Non-solicitation agreements, on the other hand, only limit an employee’s ability to actively seek the business of the employer’s current patients/clients/customers for a given period, though they are free to set up shop and do business.
Typically, courts will look at non-solicitation agreements less skeptically than they will non-competition agreements, as they are more limited in scope and more tailored to protect a business’ legitimate business interest in their existing clients. Dentists and physicians, however, can’t ethically stop a current patient from going to a former dental associate for treatment on their own volition if the dentist did not affirmatively solicit them.
Reasonableness
Every year, employees and employers file scores of lawsuits in Illinois seeking to enforce or strike down non-competition agreements. This has given Illinois courts ample opportunity to opine on these contracts and develop the contours of what is and what is not permitted. These contours have evolved over the years, generally in the direction of limiting the ability of employers to keep their former associates from making a living how, where, and when they choose.
The two primary factors that a court will consider when evaluating a non-competition agreement are its reasonableness and whether it is supported by sufficient consideration. Specifically, for a non-compete to be enforceable:
• Its geographic and temporal limitations must be no greater than needed to protect a legitimate business interest;
• Its restrictions must not impose an undue hardship on the employee; and
• Its restrictions must not be detrimental to the public.
This evaluation is very fact-specific. For a dental practice, what may be considered a reasonable geographic restriction in Arlington Heights, where ample opportunities to practice exist and hundreds of thousands of patients live nearby, may be significantly different than what would be reasonable in the 383 square miles of downstate Bond County, population 16,948.
Consideration
In terms of consideration, a necessary element in any enforceable contract, the promise of continued employment used to be seen as sufficient consideration for a non-competition provision. It still may be, but courts have begun to look at the totality of the circumstances in each individual case to make the determination. A promise of continued employment for an at-will employee has been found to be adequate consideration to render a restrictive covenant enforceable, but only if the employment lasted at least two years after the agreement was signed.
Where there is no additional compensation, such as a raise or special benefits, given to the employee in exchange for signing the non-compete, and the employee leaves less than two years after executing the restrictive covenant, courts have determined that the consideration is insufficient and the restrictive covenant is unenforceable.
Proposed or existing dental non-competition agreements can’t be evaluated in a vacuum; they must be drafted carefully and in the context of the specific practice and the market in which its provisions would be enforced. Any dentist wishing to or asked to enter into a non-competition agreement should consult with an experienced attorney who can help them make informed decisions about their rights.
You Focus On Your Patients. We’ll Focus On You.
At Grogan, Hesse & Uditsky, P.C., we focus a substantial part of our practice on providing exceptional legal services for dentists and dental practices, as well as orthodontists, periodontists, endodontists, pediatric dentists, and oral surgeons. We bring unique insights and deep commitment to protecting the interests of dental professionals and their practices and welcome the opportunity to work with you.
Please call us at (630) 833-5533 or contact us online to arrange for your free initial consultation.
Jordan Uditsky, an accomplished businessman and seasoned attorney, combines his experience as a legal counselor and successful entrepreneur to advise dentists and other business owners in the Chicago area. Jordan grew up in a dental family, with his father, grandfather, and sister each owning their own dental practices, and this blend of legal, business, and personal experience provides Jordan with unique insight into his clients’ needs, concerns, and goals.
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Most relationships, whether personal or professional, start with a certain level of mutual trust and respect, compatibility, and shared goals and priorities. But those characteristics don’t always last, and a once-promising partnership can devolve into disputes, distrust, or outright hostility. The dentist-patient relationship is not immune to such deterioration. There may come a day when the differences between a dentist and their patient make continued treatment undesirable or impractical. A patient, of course, is free to call it quits with their dentist at any time, or the patient and dentist can mutually agree to part ways. But when a dentist wants to stop treating a problematic or disruptive patient and terminate the relationship, things can be a bit stickier. It is crucial that a dentist handles the break-up carefully and in accordance with the law and ethical standards so as to avoid claims of patient abandonment that could threaten their professional license or expose them to liability. Are you interested in speaking with one of our attorneys? Click here to contact us now. Dentists Have a Right To Unilaterally Dismiss a Patient For Reasonable Cause As a preliminary matter, dentists may choose to responsibly end their relationship with a patient for any reasonable, legally permissible cause. As the American Dental Association (ADA) guidelines put it: The dentist has the right to dismiss a patient in situations where it is impossible to resolve differences or if the dentist cannot abide the patient’s behavior within the practice, as long as the dismissal is not for a legally impermissible discriminatory reason. Accordingly, a dentist may not end a patient relationship because of the patient’s race, religion, gender, color, age, national origin, disability, or other characteristics protected by federal and state anti-discrimination laws. Notably, political opinions are not a protected characteristic under the law. Common reasons a dentist may justifiably terminate a patient include: Hostility or abusive behavior toward the dentist, staff, or other patients Harassment or sexual abuse of dentist, staff, or other patients Repeatedly missing appointments Refusal to undergo recommended testing or treatment Lack of trust or confidence in the dentist’s abilities or recommendations Consistent failure to follow office policies Showing up to appointments under the influence of alcohol or drugs Refusing to adhere to infection-control precautions and policies, such as masking Nonpayment Patient Dismissal vs. Patient Abandonment A dentist who chooses to dismiss a patient can’t simply show them the door, send them a break-up text, or refuse to answer their calls. Dentists must end the relationship such that they avoid any claim that they have abandoned their patient. According to the ADA’s Principles of Ethics and Code of Professional Conduct Section 2.F.: Once a dentist has undertaken a course of treatment, the dentist should not discontinue that treatment without giving the patient adequate notice and the opportunity to obtain the services of another dentist. Care should be taken that the patient’s oral health is not jeopardized in the process. Patient abandonment is a serious ethical violation. For example, the Illinois Dental Practice Act lists “abandonment of a patient” as one of the many reasons the Illinois Department of Financial and Professional Regulation may revoke, suspend, refuse to issue or renew, reprimand, or take other disciplinary or non-disciplinary action against a dentist. A dentist also exposes themself to a malpractice claim if injuries result from their termination of the patient at the wrong time during the course of treatment or without proper notice. Best Practices For Terminating a Patient Relationship As noted, adequate notice, providing the patient an opportunity to find alternative care, and facilitating continuity of ongoing care are the keys to responsibly ending the dentist-patient relationship and avoiding a claim of abandonment. We suggest that dentists take the following steps to minimize the likelihood of any disputes or claims arising from the termination of the relationship: provide written notice to the patient, preferably by certified mail; provide the patient with the reasons for terminating the relationship; offer to continue treatment and access to services for a reasonable period (such as 30 days) to allow the patient to secure another dentist’s services; state that you will provide emergency services for a designated period; help the patient locate another dentist; and offer to transfer the patient’s records to a new dentist and/or advise the patient of their right to obtain a copy of their records for a fee. Additionally, a dentist experiencing issues with a patient should contemporaneously document all communications, incidents, statements, or behavior suggesting a breakdown in the relationship. Of course, while a dentist can control how they handle the end of a patient relationship, they can’t control how the patient will react to being “dumped.” Even when the dentist acts professionally and cordially, as they should, there is no guarantee that the patient will do the same. If a patient responds with hostility or anger, tread carefully and do not respond in kind. Contact Us With Any Questions or Concerns If you have any questions or concerns about ending a patient relationship, please give us a call. At Grogan, Hesse & Uditsky, P.C., we focus a substantial part of our practice on providing exceptional legal services for dentists and dental practices, as well as orthodontists, periodontists, endodontists, pediatric dentists, and oral surgeons. We bring unique insights and deep commitment to protecting the interests of dental professionals and their practices and welcome the opportunity to work with you. Please call us at (630) 833-5533 or contact us online to arrange for your free initial consultation. Jordan Uditsky, an accomplished businessman and seasoned attorney, combines his experience as a legal counselor and successful entrepreneur to advise dentists and other business owners in the Chicago area. Jordan grew up in a dental family, with his father, grandfather, and sister each owning their own dental practices, and this blend of legal, business, and personal experience provides Jordan with unique insight into his clients’ needs, concerns, and goals.
How Defining Your Goals Will Shape Your Dental Practice’s Business Succession Plan
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Most relationships, whether personal or professional, start with a certain level of mutual trust and respect, compatibility, and shared goals and priorities. But those characteristics don’t always last, and a once-promising partnership can devolve into disputes, distrust, or outright hostility. The dentist-patient relationship is not immune to such deterioration. There may come a day when the differences between a dentist and their patient make continued treatment undesirable or impractical. A patient, of course, is free to call it quits with their dentist at any time, or the patient and dentist can mutually agree to part ways. But when a dentist wants to stop treating a problematic or disruptive patient and terminate the relationship, things can be a bit stickier. It is crucial that a dentist handles the break-up carefully and in accordance with the law and ethical standards so as to avoid claims of patient abandonment that could threaten their professional license or expose them to liability. Are you interested in speaking with one of our attorneys? Click here to contact us now. Dentists Have a Right To Unilaterally Dismiss a Patient For Reasonable Cause As a preliminary matter, dentists may choose to responsibly end their relationship with a patient for any reasonable, legally permissible cause. As the American Dental Association (ADA) guidelines put it: The dentist has the right to dismiss a patient in situations where it is impossible to resolve differences or if the dentist cannot abide the patient’s behavior within the practice, as long as the dismissal is not for a legally impermissible discriminatory reason. Accordingly, a dentist may not end a patient relationship because of the patient’s race, religion, gender, color, age, national origin, disability, or other characteristics protected by federal and state anti-discrimination laws. Notably, political opinions are not a protected characteristic under the law. Common reasons a dentist may justifiably terminate a patient include: Hostility or abusive behavior toward the dentist, staff, or other patients Harassment or sexual abuse of dentist, staff, or other patients Repeatedly missing appointments Refusal to undergo recommended testing or treatment Lack of trust or confidence in the dentist’s abilities or recommendations Consistent failure to follow office policies Showing up to appointments under the influence of alcohol or drugs Refusing to adhere to infection-control precautions and policies, such as masking Nonpayment Patient Dismissal vs. Patient Abandonment A dentist who chooses to dismiss a patient can’t simply show them the door, send them a break-up text, or refuse to answer their calls. Dentists must end the relationship such that they avoid any claim that they have abandoned their patient. According to the ADA’s Principles of Ethics and Code of Professional Conduct Section 2.F.: Once a dentist has undertaken a course of treatment, the dentist should not discontinue that treatment without giving the patient adequate notice and the opportunity to obtain the services of another dentist. Care should be taken that the patient’s oral health is not jeopardized in the process. Patient abandonment is a serious ethical violation. For example, the Illinois Dental Practice Act lists “abandonment of a patient” as one of the many reasons the Illinois Department of Financial and Professional Regulation may revoke, suspend, refuse to issue or renew, reprimand, or take other disciplinary or non-disciplinary action against a dentist. A dentist also exposes themself to a malpractice claim if injuries result from their termination of the patient at the wrong time during the course of treatment or without proper notice. Best Practices For Terminating a Patient Relationship As noted, adequate notice, providing the patient an opportunity to find alternative care, and facilitating continuity of ongoing care are the keys to responsibly ending the dentist-patient relationship and avoiding a claim of abandonment. We suggest that dentists take the following steps to minimize the likelihood of any disputes or claims arising from the termination of the relationship: provide written notice to the patient, preferably by certified mail; provide the patient with the reasons for terminating the relationship; offer to continue treatment and access to services for a reasonable period (such as 30 days) to allow the patient to secure another dentist’s services; state that you will provide emergency services for a designated period; help the patient locate another dentist; and offer to transfer the patient’s records to a new dentist and/or advise the patient of their right to obtain a copy of their records for a fee. Additionally, a dentist experiencing issues with a patient should contemporaneously document all communications, incidents, statements, or behavior suggesting a breakdown in the relationship. Of course, while a dentist can control how they handle the end of a patient relationship, they can’t control how the patient will react to being “dumped.” Even when the dentist acts professionally and cordially, as they should, there is no guarantee that the patient will do the same. If a patient responds with hostility or anger, tread carefully and do not respond in kind. Contact Us With Any Questions or Concerns If you have any questions or concerns about ending a patient relationship, please give us a call. At Grogan, Hesse & Uditsky, P.C., we focus a substantial part of our practice on providing exceptional legal services for dentists and dental practices, as well as orthodontists, periodontists, endodontists, pediatric dentists, and oral surgeons. We bring unique insights and deep commitment to protecting the interests of dental professionals and their practices and welcome the opportunity to work with you. Please call us at (630) 833-5533 or contact us online to arrange for your free initial consultation. Jordan Uditsky, an accomplished businessman and seasoned attorney, combines his experience as a legal counselor and successful entrepreneur to advise dentists and other business owners in the Chicago area. Jordan grew up in a dental family, with his father, grandfather, and sister each owning their own dental practices, and this blend of legal, business, and personal experience provides Jordan with unique insight into his clients’ needs, concerns, and goals.
