Emerging Issues in ASC Litigation
The panel focused on three main areas of litigation — antitrust and unfair competition, healthcare contracts and government investigations.
Ms. Egan talked about how ASCs should react to a government subpoena. Act quickly and take it seriously, she said. For document subpoenas, put a company-wide hold in place to ensure employees to do delete or destroy anything that could be requested. This shows the surgery center is taking the request seriously and protects it from possible obstruction charges.
Mr. Russo discussed antitrust litigation and the renewed focus of government officials to enforce the Sherman Act. Antitrust compliance or lack thereof can be hard to prove with physicians issues, he said. This litigation is also extremely expensive and time consuming.
"Never go into [an antitrust lawsuit] looking to make a profit," he said. "The laws protect competition, not competitors."
Mr. Clark discussed non-compete clauses in physician contracts and considerations for drafting. Non-compete clauses are fantastic in concept, he said, but there is no guarantee on the enforceability. He recommends going in to contract drafting with "eyes wide open."
Take into consideration state laws and your surgery center's market. Some states have required language to be able to enforce. In order to defend a non-compete in court, you must have put logical thought and analysis into the draft; do not just use wording from another center's clause.
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