Lawsuit: NCH Healthcare System 'poached' doctors from competitor

Physicians Regional Healthcare System has filed a federal lawsuit alleging competitor NCH Healthcare System poached physicians.

In the June 11 complaint, Physicians Regional says seven doctors it recruited and established in practices were poached by NCH starting in late 2014.

The doctors had employment contracts with Physicians Regional Medical Group that contained noncompete terms. The noncompete clauses prohibited them from becoming employed by NCH or other local competitors for one year after leaving Physicians Regional.

The complaint said NCH would negotiate with the doctors while they were still employed by Physicians Regional. NCH would refer the doctors to an attorney who would tell them their noncompete clauses are not enforceable.

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NCH’s position about noncompete clauses is based on a “contrived theory of corporate ownership that was and is contrary to Florida law,” according to the complaint.

NCH has caused significant harm to Physicians Regional, including loss of patients, good will and confidential business information, the complaint states. Physicians Regional seeks damages in excess of $75,000 under Florida’s Deceptive and Unfair Trade Practices Act.

The complaint said NCH’s “deceptive misinformation” about the unenforceability of noncompete terms is part of a recruitment pitch to Physicians Regional doctors to breach their contracts. Although they are not named as defendants, Dr. Allen Weiss, president and chief executive of NCH, and Kevin Cooper, chief of staff, knowingly supported the practice, the complaint states.

NCH would tell the doctors that it would defend them against any action Physicians Regional would take.

Prior to the June 11 lawsuit, Physicians Regional pursued injunctions in 2014 and 2015 against several physicians who left for employment at NCH. A trial court entered a summary judgment in favor of the doctors.

Physicians Regional appealed. The Second District Court of Appeal reversed the trial court decision and remanded the cases back to the trial court, records with the appellate court show.

NCH spokeswoman Debbie Curry said that in the nine months since the appellate court reversed the trial court decision and sent the cases back, Physicians Regional has done nothing.

“Now that the statute of limitations is about to expire, Physicians Regional has initiated a new case seeking damages which is essentially a sequel to their failed prior attempt to try to stop these physicians from working at NCH,” Curry said in a statement. “NCH believes that the case for money damages lacks merit, and intends to defend it to the fullest.”

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Noncompete terms are common in physicians' contracts and are intended to prevent a departing physician from competing with the employer in the immediate geographic area, usually defined by a set number of miles away,  and for a set length of time.

The clauses are enforced in Florida courts, but it is not black and white, said Donna Ballman, a Fort Lauderdale attorney who specializes in employee advocacy. An argument of competition may not be enough, she said.

“These cases are very fact-specific,” Ballman said. “It is very difficult to predict how a judge will come down.”

The June 11 complaint says Physicians Regional started recruiting the seven doctors in 2012 and helped them establish practices. The seven doctors are listed in the complaint but are not named defendants.

They are Drs. Bryan Murphey and Joseph Stafford, internists who practice at 11181 Health Park Blvd. in North Naples; Drs. Brian and Monica Menichello, family doctors who practice at 15420 Collier Blvd. in East Naples; Drs. Natasha Choyah and Paul Rubinton, family doctors whose last known practice location was 3302 Bonita Beach Road in Bonita Springs; and Dr. Carlos Portu, an internist who practices at 8360 Sierra Meadows Blvd. in East Naples.

The nation is experiencing a shortage of primary-care physicians, and recruiting them to relocate is challenging to physician groups and hospitals.

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Physicians Regional’s medical group has 42 doctors in 18 medical specialties; all are board-certified or board-eligible in their specialties. Owned by Franklin, Tennessee-based Community Health Systems, Physicians Regional operates two hospitals in Collier with a combined 201 beds. The NCH system operates two hospitals in Collier with a combined 716 beds.

Physicians Regional’s contracts are typically for three years, and the noncompete clauses are for 12 months after a doctor leaves or the contract expires. The terms say the doctors will have no financial relationship, including employment, with NCH, Lee Health or Millennium Physician Group. None of the individual contracts with any of the seven doctors was included in the complaint.

NCH waited until Physicians Regional spent time and resources for the physicians’ practices to mature, according to the complaint, and NCH would conduct financial analyses and projections for patient volumes and referrals the doctors could provide to NCH’s doctor group and hospitals.