Mail Call

ACR legal counsel responds to questions from residents and fellows.

HiRes

January 2015

An old saying emphasizes that man is a social animal. That fits most lawyers — the social part, that is — and we're no exception!

We enjoy meeting with ACR members who visit the Reston headquarters, particularly members-in-training participating in various ACR fellowships. Our visiting fellows get an overview of what the ACR Legal Office does for them and all ACR members. The meetings also enable us to learn from a broad range of individuals about their varied experiences and the special challenges that come early in a radiologist's career.

The following are questions that the Legal Office periodically receives from residents and fellows:

Q: I've interviewed with several groups. Most of them have a noncompete provision in their employment contract. Is that legal? What are my options?

A: A noncompete clause prohibits an employee from accepting employment with another entity for a specific time period within a designated geographic distance of the employer's practice location. An employer like a physician group practice wants to protect its business interests, especially if the employee leaves the practice but stays in the same community and competes for the same referring physician or patient base. Whether the clause is legal generally depends on how long and how far from the practice site(s) it extends.

Contract questions may vary based on a particular state's statutory or case law. Many state courts apply a "rule of reason" test that balances the employer's interests in enforcing a noncompete provision against the employee's desires to seek other opportunities. Provisions that have short duration (1–2 years) and limited distance (5–10 miles in a semi-rural setting) likely will be enforceable — but some courts have upheld noncompetes of up to 3–5 years within a 25-mile radius.

Since noncompetes are so fact-specific, have an attorney review the provision (and the entire contract) before signing it. Expect that the employing practice may hold you to the provision or require you to pay money to release you from it.

Q: During my residency and fellowship, I had professional liability coverage through my institution. I am moving to a practice across the country. What type of insurance coverage should I have?

A: Read the contract! Read the insurance policy! You will have to abide by the policy at your new practice and are entitled to know at least the basic terms. If you cannot obtain the entire policy, ask for a copy of the endorsement page, which indicates what the policy will and will not cover.

Understand the difference between an "occurrence" policy and a "claims-made" policy. An occurrence policy covers any legal action that may result from an incident that occurred when the policy was in effect, regardless of when that action is brought. Claims-made policies only cover legal actions brought during the time period in which the policies are in effect.1 If your future employer provides malpractice coverage and has a group claims-made policy, you will need "tail" coverage to protect against prior claims if and when you leave the practice. The only problems you might encounter in trying to obtain tail coverage would be if you had a contract dispute with the employer or failed to disclose an incident that might trigger a claim.2

For legal reasons, ACR cannot recommend specific liability policies or coverage limits. However, the Legal Office can help you obtain information on available coverage in certain states.

ACR Legal Resources

The Legal Office is here to support members and serve as a first step for members seeking legal counsel.
• If you're looking for an attorney in your area, the Legal Office maintains a national attorney referral list at http://bit.ly/ACRreferral.
• Members are welcome to visit or call the Legal Office anytime. We are happy to discuss the diverse medical-legal challenges our members face. Although ACR attorneys cannot act as members' personal legal counsel, we can discuss national and state trends on topics such as medical staff bylaws and state licensure requirements. We can be reached at 800-227-5463, ext. 4044 or This email address is being protected from spambots. You need JavaScript enabled to view it.. Our attorneys are also available at the ACR Annual Meeting and at the ACR Booth at RSNA.

 


By Bill Shields, JD, LLM, CAE, and Tom Hoffman, JD, CAE

Endnotes
1. ACR Medical Legal Committee, Medical-Legal Issues in Radiology, 3rd Edition, p. 25, n. 6 (2005).
2. Personal communication with L. Bartholomew, Physician Insurers Association of America.
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