Non-compete clauses (NCCs), also called restrictive covenants, impose geographic and time-based restrictions on employees so as to prevent them from working for competitors, starting their own practices, or practicing in specific regions. Despite the prevalence of NCCs in almost every contract signed by neurosurgeons and spine surgeons, there has been no empirical data on the legal enforceability of such provisions. A retrospective review of cases involving litigation centered on NCCs was conducted in the Westlaw Edge and LexisNexis databases using the terms (noncompete OR non-compete OR "restrictive covenant") and (neurosurgeon OR neurosurgery OR "spine surgeon" OR "spine surgery"). Two reviewers (L.S., S.S.) screened cases, with discrepancies resolved by K.S.B./T.A.M. Data included the characteristics of plaintiff and defendants (eg, hospital, physician or private practice), location, outcomes, and damages (adjusted to 2024 dollars through Consumer Price Index). Descriptive statistics identified frequencies and percentages for categorical parameters. Eighteen NCCs cases involving neurosurgeons or spine surgeons were identified, with 11 involving hospitals and 7 involving private practices. Hospitals were plaintiffs in 6 cases (ie, the case was brought against the physician) and defendants in 5 (ie, the case was brought by the physician), whereas private practices were plaintiffs in 6 and defendants in 1. Appeals occurred in 9 cases. Of the 18 cases, 72% upheld NCCs, generally favoring employers. The duration of NCCs averaged 21.7 months, with hospitals averaging 18.9 months and private practices 25 months. Seven cases involved non-profit hospitals or clinics. Key factors influencing the enforceability of NCCs included public interest, physician-shareholder roles, solicitation clauses, and state law variability. These findings suggest that most non-compete agreements against neurosurgeons and spine surgeons are at least partially upheld in litigation. Although the 2024 Federal Trade Commission's rule banning NCCs ultimately failed to outlaw NCCs, there is still a strong argument that NCCs in healthcare significantly impair the free-market dynamics and, due to the imbalance of power between large hospitals and individual employees, substantially burden neurosurgeons and spine surgeons, especially those at the beginning of their professional careers.
Keywords: Contract law; Neurosurgery; Noncompete; Physician contracts.
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