Updated April 8, 2020
One concern raised by the COVID-19 pandemic is whether physicians could provide care outside of a non-compete agreement or restrictive covenant. For example, when patients from a physician’s former practice seek advice or appointments. As a legal matter, in normal circumstances this would violate the agreement. As a question of ethics, the answer is not so straightforward.
In the best of all possible worlds, physicians would have negotiated amendments to a contract that unduly restricted their ability to practice (Opinion 11.2.3, “Contracts to Deliver Health Care Services”), perhaps even a clear exemption for emergencies or disaster. When that is not the case, the AMA Code of Medical Ethics provides guidance.
Opinion 220.127.116.11, “Restrictive Covenants,” notes that “covenants-not-to-compete restrict competition, can disrupt continuity of care, and may limit access to care.” Opinion 18.104.22.168 further provides that physicians should not enter into covenants that “unreasonably restrict the right to practice medicine,” and “do not make reasonable accommodation for patients’ choice of physician.” Such covenants may thwart physicians’ general obligation to support access to care for all (Principle IX, AMA Principles of Medical Ethics).
More important, in situations of pandemic they can undermine physicians’ specific ethical commitment to public health to provide urgent medical care (Opinion 8.3, “Physicians’ Responsibilities in Disaster Response and Preparedness”). The ethical obligation for physicians to respond and provide care in the face of disaster is fundamental and exists independent of any contractual duty. Under Principle III, physicians have an ethical responsibility to seek changes in legal provisions “which are contrary to the best interest of the patient.”
As a matter of law, in a crisis such as a pandemic, any contractual obligation that would thwart the treatment of patients during such an emergency would likely be deemed unenforceable as violating public policy.
Additional ethics guidance in a pandemic
- AMA Code of Medical Ethics: Guidance in a pandemic
- Graduating early to join the physician workforce
- Prescribing medications responsibly in a pandemic
- Providing patient care remotely in a pandemic
- Fair access to limited critical care resources
- Clinical research versus patient care: Conducting clinical trials
- Caring for patients at the end of life
- Clinical research versus patient care: Access experimental treatment
- Crisis standards of care: Guidance from the AMA Code of Medical Ethics
- Obligations to protect health care professionals
- Access and health equity during a pandemic
- Speaking out on issues adversely affecting patient safety in a pandemic
- Protecting public health & vulnerable populations in a pandemic
- Use of patient registries during public health emergencies
- Research ethics in a public health crisis
- Physicians in the media: Responsibilities to the public and the profession
- Vaccine trials & healthy volunteers
- Ethical practice in isolation, quarantine & contact tracing
- Prioritizing the rest of health care in a public health crisis
- DNR orders in a public health crisis
- AMA Declaration of Professional Responsibility