concurring in part and dissenting in part:
The appellate court upheld the physician restrictive covenants in the present case, and this court affirms. In so doing, my colleagues in the majority give short shrift to the essential issue of patient care. I write separately because fuller consideration of the issue of patient care is crucial to an enlightened resolution of the parties’ contentions.
The issue of patient care is fraught with opposing public policy considerations. Further, the issue of patient care is so intertwined with the enforceability of physician restrictive covenants that a blanket prohibition thereof must come from the legislature and not the courts. Therefore, I agree with my colleagues’ conclusion on this point. Nevertheless, because consideration of patient care is so important in enforcing individual physician restrictive covenants, including not only the patient’s freedom to choose a physician but also the patient’s interests in maintaining an established physician-patient relationship, I believe that the prevailing analysis is inadequate. In my view, the court today lets pass the opportunity to revisit this important issue and modify our analysis.
Accordingly, I propose a modified analysis that more appropriately considers the fundamental element of patient care. The record before us does not contain sufficient evidence to establish this crucial consideration. Therefore, I cannot uphold these restrictive covenants. Rather, I would reverse the judgments below and remand the cause to the circuit court for additional fact-finding.
I. BACKGROUND
A physician restrictive covenant is a clause typically found in employment agreements between physicians and their employers. Usually, employers require physicians to sign such covenants prior to beginning their practice. The contractual clauses obligate physicians to refrain from engaging in or establishing a competitive medical practice within a specified geographic region for a specified period of time subsequent to the conclusion or termination of the physician’s employment. The restrictive covenant typically will also prohibit a physician from treating patients at hospitals within the same geographic region. S. Malloy, Physician Restrictive Covenants: The Neglect of Incumbent Patient Interests, 41 Wake Forest L. Rev. 189, 189-90 (2006); accord D. Loeser, The Legal, Ethical, and Practical Implications of Noncompetition Clauses: What Physicians Should Know Before They Sign, 31 J.L. Med. & Ethics 283, 283-84 (2003); E Berg, Judicial Enforcement of Covenants Not To Compete Between Physicians: Protecting Doctors’ Interests At Patients’ Expense, 45 Rutgers L. Rev. 1, 2-3 (1992). Terms such as “restrictive covenant,” “noncompete agreement,” and “covenant not to compete” are synonymous and used interchangeably. 41 Wake Forest L. Rev. at 189 n.2; 45 Rutgers L. Rev. at 2 n.9. In the present case, the appellate court, inter alia: (1) found that plaintiffs’ post-employment restrictive covenants were reasonable (358 Ill. App. 3d 902, 906-09), and (2) rejected plaintiffs’ contention that physician postemployment restrictive covenants in Illinois are void as against public policy. 358 Ill. App. 3d at 911.
II. ANALYSIS
The purpose of a preliminary injunction is to preserve the status quo pending a decision on the merits of a cause. A preliminary injunction is an extreme remedy that a court should employ only in situations where an emergency exists and serious harm would result if the injunction is not issued. Callis, Papa, Jackstadt & Halloran, P.C. v. Norfolk & Western Ry. Co., 195 Ill. 2d 356, 365 (2001). As my colleagues in the majority observe, a party seeking a preliminary injunction must establish that: (1) a clearly ascertained right in need of protection exists; (2) irreparable harm will occur without the injunction; (3) there is no adequate remedy at law for the injury; and (4) there is a likelihood of success on the merits. 225 Ill. 2d at 62; Callis, 195 Ill. 2d at 365-66. The decision to grant or deny a preliminary injunction rests within the sound discretion of the circuit court, whose decision will not be disturbed on review absent an abuse of discretion. Callis, 195 Ill. 2d at 366.
In this case: “The sole issue is whether defendants, who were seeking the preliminary injunction, made a fair showing that the restrictive covenants were valid and enforceable and that they were therefore likely to succeed on the merits of their claim against plaintiffs.” 225 Ill. 2d at 80-81 (Karmeier, J., specially concurring, joined by Garman, J.). Whether a restrictive covenant is valid and enforceable depends on the reasonableness of its terms, which is a question of law for the court to determine. Tarr v. Stearman, 264 Ill. 110, 118-19 (1914); Lanzit v. J.W. Sefton Manufacturing Co., 184 Ill. 326, 330 (1900); see McRand, Inc. v. van Beelen, 138 Ill. App. 3d 1045, 1051 (1985); Image Supplies, Inc. v. Hilmert, 71 Ill. App. 3d 710, 712 (1979). Accordingly, our review is de novo. Woods v. Cole, 181 Ill. 2d 512, 516 (1998).
A. Prohibition of All Physician Restrictive Covenants Plaintiffs ask this court to hold that all physician restrictive covenants are void in Illinois as against public policy. Of course, physicians enjoy the freedom of contract. 225 Ill. 2d at 64. However, these agreements are not immune from state regulation.
“It is too well settled to require discussion at this day that the police power of the States extends to the regulation of certain trades and callings, particularly those which closely concern the public health. There is perhaps no profession more properly open to such regulation than that which embraces the practitioners of medicine.” Watson v. Maryland, 218 U.S. 173, 176, 54 L. Ed. 987, 989, 30 S. Ct. 644, 646 (1910).
It is elementary that “a state has broad power to establish and enforce standards of conduct within its borders relative to the health of everyone there. It is a vital part of a state’s police power. The state’s discretion in that field extends naturally to the regulation of all professions concerned with health.” Barsky v. Board of Regents of the University of the State of New York, 347 U.S. 442, 449, 98 L. Ed. 829, 838, 74 S. Ct. 650, 654 (1954). The state’s police power in the area of health is broad and “is sufficient to justify, in proper circumstances, uncompensated deprivation of personal liberty as well as deprivation of property. [Citation.] The States have wide regulatory power with respect to the practice of health care professions.” Methodist Medical Center of Illinois v. Ingram, 82 Ill. 2d 511, 522-23 (1980) (and cases cited therein).
In support of this contention, plaintiffs present several considerations relating to patient care. However, instead of discussing the impact of physician restrictive covenants on the essential issue of health care, my colleagues in the majority curtly recite plaintiffs’ patient-care considerations and unduly discount them simply as a “laundry list.” 225 Ill. 2d at 65-66. Indeed, without any discussion of plaintiffs’ patient-care considerations, the court ultimately concludes that plaintiffs have not “shown that these covenants are manifestly injurious to the public welfare.” 225 Ill. 2d at 69. I respectfully disagree.
Based on the essential nature of health care in our society, I request the patience of my colleagues in the majority, as I look beyond what they characterize as a “laundry list” to more fully discuss the crucial relation between physician restrictive covenants and patient care. I am of the opinion that a strong case exists for abolishing all physician restrictive covenants as being against public policy. However, I agree that this decision is for the General Assembly to make.
The enforcement of physician restrictive covenants impedes the delivery of quality medical care in several ways. The essential ingredients of quality medical primary care include continuity of care, interpersonal communications, longitudinality of the physician-patient relationship, patients’ preference to see their regular physician, and the accumulation of physician knowledge about the patient. When physician restrictive covenants are enforced, they ultimately result in the severing of physician-patient relationships. Studies have addressed the involuntary termination of those relationships and the concomitant impact of forced discontinuity of care. These studies reveal that the disruption caused by enforcing physician restrictive covenants results in increased costs of care, decreased quality of care, and decreased patient satisfaction. A. Di Dio, The Legal Implications of Noncompetition Agreements in Physician Contracts, 20 J. Legal Med. 457, 475 (1999).
As a result of the forced severing of the physician-patient relationship due to the enforcement of a physician restrictive covenant, the patient must search for a new physician to tend to the patient’s medical needs. Of course, this new physician must now learn about the patient to provide effective treatment. Physicians who know less about their patients will more likely order laboratory tests. In turn, decreased patient comfort levels with new physicians impede interpersonal communications and the new physicians’ accumulation of knowledge. For patients who see multiple physicians for multiple medical problems, coordination of care is paramount. When these patients are compelled to change physicians, coordination of care decreases. Forced discontinuity of patient care results in: more frequent physician visits, laboratory tests, hospitalizations, and surgical procedures; increased utilization of speciality services and hospital emergency rooms; and increased emergency hospital admissions and longer hospital stays. 20 J. Legal Med. at 475-76. All of this results in increased healthcare costs and decreased patient satisfaction.
Further, the enforcement of physician restrictive covenants “is contrary to medical research that demonstrates that continuity in the doctor-patient relationship fosters the delivery of quality health care and that the involuntary termination of this relationship may have lasting, negative effects on patients.” 45 Rutgers L. Rev. at 31. Long-term, continuous relationships, between physicians and patients impact positively on many aspects of health care. A long-standing, trusting physician-patient relationship often improves a physician’s diagnostic abilities and increases the likelihood that the patient will comply with prescribed therapy. Providing continuity is particularly important to the treatment of certain patients such as children and the elderly, and for certain medical conditions such as psychiatric disorders. Patients having such relationships with primary-care physicians are less likely to seek treatment in hospital emergency rooms than patients who have no such relationship. Also, patients who have ongoing relationships with their physicians have considerably shorter hospitalizations and intensive-care unit stays than patients who lack such relationships. 45 Rutgers L. Rev. at 31-34.
Further, it cannot be ignored that this country suffers from a shortage of primary-care physicians, which is obviously an additional threat to a patient’s receiving adequate health care. Some communities are truly endangered by the shortage of available physicians caused by the enforcement of physician restrictive covenants. 41 Wake Forest L. Rev. at 212-13.
The enforcement of physician restrictive covenants harms not only patients. “While forced discontinuity of care may have detrimental effects for the patient when it occurs because of a restrictive covenant, it is equally troublesome for the physician.” 41 Wake Forest L. Rev. at 207. The enforcement of physician restrictive covenants denies patients the right to choose their own physicians. This patient care consideration implicates a physician’s ethical obligations.
In 1933, the American Medical Association (AMA) first addressed the issue of physician restrictive covenants. The AMA declared that contractual provisions that prevented the free choice of a physician were unethical. However, in 1960, the AMA Judicial Council, which is responsible for interpreting and recommending changes to the AMA constitution, bylaws, and ethical principles (45 Rutgers L. Rev. at 6 n.23), retreated from this position. The 1960 opinion stated that there was no ethical proscription against a reasonable restrictive covenant, if knowingly made and understood. In 1971, the AMA adopted a resolution that echoed the position of the 1960 opinion. 45 Rutgers L. Rev. at 6-7.
Subsequent to 1960, official statements of the AMA have repeatedly criticized physician restrictive covenants as being antagonistic to quality health care, yet have expressed toleration of reasonable noncompetition agreements. In 1971, the Judicial Council recommended barring physician restrictive covenants in all but exceptional circumstances. The Council explained that it
“recognizes social and professional conditions have changed over the years. While there may once have been some need for restrictive covenants in agreements between physicians, the Council believes that existing socioeconomic conditions leave little or no justification for restrictive covenant arrangements. In the opinion of the Council, the use of restrictive covenants in an agreement between or among physicians should be entered into only under the most unusual circumstances and then only after those circumstances have been found by the local medical society to require the adoption of such a provision in order to protect the public and the profession in the particular situation.” 45 Rutgers L. Rev. at 8, citing AMA, Proceedings of the House of Delegates, Report of Judicial Council 124 (1972).
The Judicial Council has also opined:
“ ‘Free choice of physicians is the right of every individual. One may select and change, at will, one’s physicians, or may chose a medical care plan such as that provided by a closed panel or group practice or health maintenance or service organization. The individual’s freedom to select a preferred system of health care and free competition among physicians and alternative systems of care are prerequisites of ethical practice and optimal patient care.’ ” 31 J.L. Med. & Ethics at 286, quoting AMA Council on Ethical and Judicial Affairs, Op. E — 9.06 (1977).
In 1980, the AMA declared that physician restrictive covenants, while not unethical, are not “in the public interest.” 45 Rutgers L. Rev. at 9.
Further, in 1993, the Judicial Council recognized the consensual and highly personal nature of the physician-patient relationship.
“ ‘The patient has the right to continuity of health care. The physician has an obligation to cooperate in the coordination of medically indicated care with other health care providers treating the patient. The physician may not discontinue treatment of a patient as long as further treatment is medically indicated, without giving the patient reasonable assistance and sufficient opportunity to make alternative arrangements for care.’ ” 31 J.L. Med. & Ethics at 286, quoting AMA Council on Ethical and Judicial Affairs, Op. E — 10.01 (1993).
The AMA continues to be concerned with continuity of patient care and its disruption by enforcement of physician restrictive covenants.
The Judicial Council’s current opinion on physician restrictive covenants states:
“ ‘Covenants not to compete restrict competition, disrupt continuity of care, and potentially deprive the public of medical services. The Council on Ethical and Judicial Affairs discourages any agreement which restricts the right of a physician to practice medicine for a specified period of time or in a specified area upon termination of an employment, partnership or corporate agreement. Restrictive covenants are unethical if they are excessive in geographic scope or duration in the circumstances presented, or if they fail to make reasonable accommodation of patients’ choice of physician.’ ”31 J.L. Med. & Ethics at 287, quoting AMA Council on Ethical and Judicial Affairs, Op. E — 9.02 (1998).
Although the AMA currently accepts reasonable physician restrictive covenants, the AMA remains critical of them.
These AMA-recognized ethical obligations of physicians, as they relate to patients’ freedom of choice, do not result in a virtual involuntary servitude for physicians. After all, a physician may voluntarily retire or move from a community. However, the AMA has recently spoken directly to physicians’ higher obligations to patients versus themselves or other groups:
“ ‘The practice of medicine, and its embodiment in the clinical encounter between a patient and a physician, is fundamentally a moral activity that arises from the imperative to care for patients and alleviate suffering. The relationship between patient and physician is based on trust and gives rise to physicians’ ethical obligations to place patients’ welfare above their own self-interest and above obligations to other groups, and to advocate for their patients’ welfare.’ ” 31 J.L. Med. & Ethics at 286-87, quoting AMA Council on Ethical and Judicial Affairs, Report 1 — A—01 (2001).
To state the obvious: the physician-patient relationship is unlike most other business relationships. Therefore, it should not be treated in an identical manner. See, e.g., York, 222 Ill. 2d at 185-201 (recognizing uniqueness of physician-patient relationship, court treated element of reliance in apparent agency analysis differently in healthcare context than in other contexts). When a physician must terminate his or her relationship with a patient, the patient may suffer the consequences physically. In most other cases, the client who is denied the services of the professional is harmed only financially. 41 Wake Forest L. Rev. at 208.
The antagonism between physician restrictive covenants and the ethical obligations of physicians is recognized:
“[AMA] Official Guidelines state that once a physician-patient relationship is formed, the physician has a legal and ethical duty to continue providing care as long as the patient needs it. When a physician must terminate the patient relationship due to a restrictive covenant, she must simultaneously fulfill this ethical obligation. Doing so requires that the physician give reasonable notice of termination, as well as sufficient opportunity to find an alternative provider. The AMA provides steps that a physician should follow in terminating the relationship, including providing the patient with a reason for terminating the relationship, continuing to provide treatment while the patient attempts to locate a new provider, recommending a new provider at the patient’s request, and transferring the patient’s files to another physician only with the patient’s permission. Many physicians are prohibited from contacting their former patients under restrictive covenants and are therefore unable to fulfill these legal and ethical obligations.” 41 Wake Forest L. Rev. at 207-08.
Physicians have an ethical duty to put the welfare of their patients above their own. A physician restrictive covenant undermines those ethics when it places the employers’ financial interests above patients’ interests. 41 Wake Forest L. Rev. at 208.
Rather than discuss the patient-care considerations as they relate to physician restrictive covenants, the court offers its own justification for such agreements: “Restrictive covenants protect the business interests of established physicians and, in this way, encourage them to take on younger, inexperienced doctors.” 225 Ill. 2d at 69. However: “No empirical evidence exists that restrictive covenants are needed to protect physician/employers’ economic interests. Indeed, one medical commentator has concluded that these provisions are usually not economically justified. Richard P. Bergen, Practical Considerations on Restrictive Covenants, 203 JAMA 197, 198 (1968).” 45 Rutgers L. Rev. at 31 n.137. Another commentator recently opined that, ordinarily, the revenue generated by the physician-employee should substantially exceed the cost to the employer of employing the physician. Thus, the employer is usually well compensated for the benefits it provides to the physician during the employment. Arguably the employer also profits from the long-term benefits provided to the physician. “As the physician gains knowledge, and enhances his or her personal reputation, the employer benefits by association. Those benefits do not just disappear when the physician departs; the community may continue to associate positive experiences or outcomes with the employer, and, hence, the value of the employer’s goodwill remains enhanced.” 31 J.L. Med. & Ethics at 190.
Notwithstanding the above, I am not unsympathetic to the legitimate business interests that employers such as defendants wish to protect. I note, however, that other means exist to protect these interests, which do not negatively impact or unduly burden patient care or the ethical obligations of physicians. For example, many physician restrictive covenants give the contracting physician the option of paying liquidated damages in the alternative to abiding by the activity, geographic, and temporal restrictions of the covenant. Some commentators argue that these damages are less harmful to physicians and the physician-patient relationship than the enforcement of the restrictive covenant through injunctive relief. 41 Wake Forest L. Rev. at 219. Moreover, the solitary suggestion that my colleagues in the majority offer to justify physician restrictive covenants focuses on “business interests” and lacks any consideration of physicians’ ethical obligations to patients.
A strong case exists for a blanket abolition of all physician restrictive covenants in Illinois as being void against public policy. However, I agree that such a decision is properly left to the General Assembly. 225 Ill. 2d at 70.
In the exercise of the police power, the State has the right to regulate any and all occupations for the protection of the lives and health of the people. All measures and regulations for the public health that do not infringe upon constitutional rights are within the scope of the police power. Within constitutional limitations, the General Assembly is the sole judge of what laws shall be enacted for the protection of the public health, and so long as such laws do not invade inherent or constitutional rights, the determination of the General Assembly is conclusive. People v. Witte, 315 Ill. 282, 285 (1924); People v. Kane, 288 Ill. 235, 237-38 (1919).
Despite the long-established recognition that measures regulating health-care professionals must ultimately issue from the General Assembly, plaintiffs contend that this court should prohibit physician restrictive covenants in Illinois for the same reasons that this court prohibited attorney restrictive covenants in this state. In Dowd & Dowd, Ltd. v. Gleason, 181 Ill. 2d 460 (1998), this court held that attorney restrictive covenants were void as against the public policy underlying Rule 5.6(a) of the Illinois Rules of Professional Conduct (134 Ill. 2d R. 5.6(a)). The rule provides that a lawyer shall not participate in offering or making a partnership or employment agreement that restricts the rights of a lawyer to practice after termination of the relationship. 134 Ill. 2d R. 5.6(a). This court observed that Rule 5.6(a) “is designed both to afford clients greater freedom in choosing counsel and to protect lawyers from onerous conditions that would unduly limit their mobility.” Dowd, 181 Ill. 2d at 481. Plaintiffs argue that physician restrictive covenants, like attorney restrictive covenants, limit both patients’ freedom in choosing physicians and physicians’ professional autonomy.
This comparison fails for at least two reasons. First, Dowd implicated this court’s unique and inherent responsibility for regulating the conduct of attorneys. This court has the sole and inherent power to define and regulate the practice of law in this state. Further, the power to prescribe rules governing attorney conduct rests solely in this court. Consistent with this exclusive power, this court has adopted the Rules of Professional Conduct (134 Ill. 2d Rules, art. VIII). These rules regulate the practice of law and the conduct of lawyers, and are intended to safeguard the public and assure the integrity of our legal system. These regulatory provisions assure that lawyers practice law ethically and with competence. Ford Motor Credit Co. v. Sperry, 214 Ill. 2d 371, 382-83 (2005); People ex rel. Brazen v. Finley, 119 Ill. 2d 485, 492-94 (1988). However, the legislature may enact statutes that are in aid of, and do not supersede or detract from, the power of this court to control the practice of law. People ex rel. Chicago Bar Ass’n v. Goodman, 366 Ill. 346, 349 (1937); see, e.g., 705 ILCS 205/0.01 et seq. (West 2004) (Attorney Act).
In contrast, regulations governing physicians do not contain any restrictions similar to Rule 5.6(a) of the Illinois Rules of Professional Conduct. Neither Illinois statutes, nor the regulations of the Illinois Department of Professional Regulation, in any way prohibit physician restrictive covenants. See Karlin v. Weinberg, 77 N.J. 408, 420-21, 390 A.2d 1161, 1167-68 (1978) (applying this reasoning to New Jersey law). I “recognize that several commentators have criticized the distinction our law makes between physicians and attorneys in respect of restrictive covenants.” Community Hospital Group, Inc. v. More, 183 N.J. 36, 55-56, 869 A.2d 884, 895-96 (2005) (collecting commentary). Despite this criticism, I nevertheless rely on this court’s power to govern the ethical standards of the legal profession as justification for treating attorneys and physicians differently. See Community Hospital Group, 183 N.J. at 56, 869 A.2d at 896 (applying New Jersey law); Intermountain Eye & Laser Centers, P.L.L.C. v. Miller, 142 Idaho 218, 229, 127 P.3d 121, 132 (2005) (applying Idaho law).
Second, the attorney-client relationship differs markedly from the physician-patient relationship. Technology has enabled attorneys to establish and maintain professional relationships with their clients through, e.g., conference calls and faxes. In contrast, the physician-patient relationship is highly personal, and necessarily requires face-to-face contact between physicians and patients. The unique and highly personal nature of the physician-patient relationship cautions this court to defer consideration of a blanket prohibition of physician restrictive covenants to the legislature.
The General Assembly possesses wide regulatory power with respect to the health-care professions and, further, it is within the broad discretion of the legislature to determine not only what the public interest and welfare require, but also to determine the measures needed to secure such interest. Burger v. Lutheran General Hospital, 198 Ill. 2d 21, 40-41 (2001), quoting Chicago National League Ball Club, Inc. v. Thompson, 108 Ill. 2d 357, 364 (1985). Indeed:
“The primary expression of Illinois public and social policy should emanate from the legislature. This is especially true regarding issues like the present one, where there is disagreement on whether a new rule is warranted. The members of our General Assembly, elected to their offices by the citizenry of this State, are best able to determine whether a change in the law is desirable and workable.
*** The General Assembly, by its very nature, has a superior ability to gather and synthesize data pertinent to the issue. It is free to solicit information and advice from the many public and private organizations that may be impacted. Moreover, it is the only entity with the power to weigh and properly balance the many competing societal, economic, and policy considerations involved.” Charles v. Seigfried, 165 Ill. 2d 482, 493 (1995).
I urge the General Assembly to consider the efficacy of physician restrictive covenants, and I recommend that the legislature prohibit such noncompetition agreements between physicians.
B. Reasonableness of These Physician Restrictive Covenants
This court properly holds that a blanket prohibition of all physician restrictive covenants should emanate from the legislature. However, my colleagues in the majority hold that the restrictive covenants presented in this case are reasonable. I cannot agree. The court improperly relies on a general analysis that ignores the unique nature of the physician-patient relationship.
The general analysis is as follows. Courts usually hold that contracts in total restraint of trade are illegal and void. Bauer v. Sawyer, 8 Ill. 2d 351, 354-55 (1956); Hursen v. Gavin, 162 Ill. 377, 379-80 (1896). However, the validity of a partial restraint of trade, e.g., a noncom-petition agreement, is determined by its reasonableness in terms of its effect on the parties and the public. Under the rule of reason, a noncompetition agreement is reasonable and, therefore, enforceable, if it: (1) is no broader than necessary to protect a legitimate interest of the employer; (2) does not unduly burden the employee; and (3) does not harm the public. House of Vision, Inc. v. Hiyane, 37 Ill. 2d 32, 37 (1967); Bauer, 8 Ill. 2d at 355; Restatement (Second) of Contracts §188 (1981). In relation to the employer’s interest, the restraint must be reasonable as to activity, geographic area, and time. Hursen, 162 Ill. at 380-82; Restatement (Second) of Contracts §188, Comment d, at 43 (1981).
However, in my view, when a restrictive covenant deals with physicians, our traditional analysis should be applied in a manner which explicitly and specifically references the injury to the public in terms of patient care. Other states have so recognized. For example, in Statesville Medical Group v. Dickey, 106 N.C. App. 669, 673, 418 S.E.2d 256, 259 (1992), the court referenced the injury to the public as follows:
“To determine the risk of substantial harm to the public this Court has considered the following factors: the shortage of specialists in the field in the restricted area, the impact of plaintiff establishing a monopoly *** in the area, including the impact on fees in the future and the availability of a doctor at all times for emergencies, and the public interest in having a choice in the selection of a physician.”
Accord Valley Medical Specialists v. Farber, 194 Ariz. 363, 371, 982 P.2d 1277, 1285 (1999) (concluding that patients’ right to see the physician of their choice is entitled to substantial protection); Community Hospital Group, 183 N.J. at 60, 869 A.2d at 898, quoting Karlin, 77 N.J. at 424, 390 A.2d at 1169-70 (holding that court must evaluate several factors, including extent to which enforcing restrictive covenant would foreclose patients from seeing the departing physician if they desired to do so); Intermountain Eye, 142 Idaho at 229, 127 P.3d at 132 (“We adopt the view expressed by the supreme courts of Arizona and New Jersey”). Such realistic consideration of patient care recognizes human dignity and the importance of health care, rather than viewing human beings as a commodity to be considered only in the context of the employer and the employee.
I observe that I am not suggesting a departure from our traditional common law analysis of restrictive covenants with its identified elements. Rather, in agreement with the above-cited enlightened courts, I consider patient care to be included in, or a subset of, the element of public harm. York v. Rush-Presbyterian-St. Luke’s Medical Center, 222 Ill. 2d 147 (2006), is a recent example of this court recognizing the uniqueness of the physician-patient relationship in the context of another general analysis. York involved a medical malpractice action claiming that a hospital was vicariously liable for the negligence of an independent-contractor physician under the doctrine of apparent agency. This court unanimously held that, in the context of health care, it would treat the element of reliance in the apparent agency analysis differently than in other contexts. The court explained that the relationship between a patient and health-care providers “presents a matrix of unique interactions that finds no ready parallel to other relationships.” York, 222 Ill. 2d at 192. In the present case, I am disappointed that my colleagues in the majority fail to consider the uniqueness of physician restrictive covenants, as they recently did in York, but rather, treat all restrictive covenants alike.
One might assume that this court would give particularized treatment to physician restrictive covenants in light of the unique considerations they present. Unfortunately, the majority of courts, including this court, currently view the physician-patient relationship as analogous to a simple merchant-customer relationship, thus comparing a very complex relationship to a relationship that is more routine. These courts do not analyze physician restrictive covenants any differently than they analyze covenants-not-to-compete between commercial parties. 41 Wake Forest L. Rev. at 192; accord 45 Rutgers L. Rev. at 4 (“Courts do not analyze noncompetition agreements between physicians any differently than comparable provisions between commercial parties”).
The court today concludes that the general analysis applicable to all commercial restrictive covenants so completely takes into account patient-care considerations and the ethical obligations of physicians to patients that the court sees no difference in the two contexts. 225 Ill. 2d at 67. I respectfully disagree. A profound “disconnection” exists between the prevailing physician restrictive covenant analysis and patient care.
In applying the prevailing analysis to determine the reasonableness of a physician restrictive covenant, this court has held that “the interest of the public is in having adequate medical protection.” Bauer, 8 Ill. 2d at 355. In Bauer, for example, this court reasoned that the reduction by one of 70 physicians serving a community would not “cause such injury to the public” as to justify refusing to enforce the restrictive covenant. Bauer, 8 Ill. 2d at 355. This dated view of the public interest promotes the attitude that patients are widgets — nondescript objects that anyone has the right to service. Absent is any consideration of what effect enforcing the restrictive covenant would have on the interests of third parties, i.e., patient care or the ethical obligations of physicians.
Further, this court has even misapplied this flawed numerical test. In a case where the physician argued that a scarcity of physicians would affect the public interest, this court reasoned:
“Nor is the contract injurious to any legitimate interest of the public. Defendant can be as useful to the public at some other place in the State as he can in Rockford, and the health of persons elsewhere is just as important. It cannot be said that the public interest is adversely affected if a physician decides to move from one community to another, nor does it become so if the move results from some agreement made in advance. If a severe shortage exists in any particular place young doctors will tend to move there, thus alleviating the shortage.” Canfield v. Spear, 44 Ill. 2d 49, 52 (1969).
Accord Bauer, 8 Ill. 2d at 355 (“In any case, there is no reason why Dr. Sawyer cannot serve the public interest equally well by practicing in another community”); 358 Ill. App. 3d at 909 (applying this reasoning in the present case).
Canfield, decided nearly 40 years ago, was the last time this court was presented with determining the reasonableness of a physician restrictive covenant (as opposed to a noncompetition agreement between veterinarians, Cockerill v. Wilson, 51 Ill. 2d 179 (1972)). Commentators have long condemned the above-quoted reasoning. First, it completely ignores the interests of patients who lose their physician due to enforcement of the restrictive covenant. Those patients “will presumably find little comfort in knowing that patients in some other area can now benefit from their doctor’s services.” 45 Rutgers L. Rev. at 30 n.136 (describing this analysis as “peculiar”). Second, “the notion that the benefit of adding a new doctor to a to-be-announced location equals the cost to incumbent patients caused by losing their doctor is ridiculous. The incumbent patients suffer in the short term a great deal more than the potential new patients gain.” 41 Wake Forest L. Rev. at 203-04; see Restatement (Second) of Contracts §188, Illustration 14, at 48 (1981) (focusing analysis on shortage of doctors in the affected area). Indeed, in examining the temporal restrictions in these physician restrictive covenants, my colleagues in the majority observe: “The measure of the potential harm to the public caused by the restriction is whether there exists a sufficient number of cardiologists in the area to meet patient needs.” (Emphasis in original.) 225 Ill. 2d at 79. Based on the current recognition of patient-care considerations and ethical obligations of physicians, I am disappointed that this court does not take the opportunity this case presents to expressly repudiate the flawed reasoning expressed in Canfield.
Applying my proposed physician restrictive covenant analysis to the present case, I conclude that the record contains insufficient evidence to determine whether enforcement of these restrictive covenants is injurious to the public. To be sure, the record does not indicate a scarcity of physicians within the two-mile and five-mile geographic areas affected by the covenants. Further, the restricted hospitals in the geographic area are St. Mary of Nazareth Hospital, Norwegian American Hospital, St. Elizabeth Hospital, and Sacred Heart Hospital. The record contains evidence that there were more than a sufficient number of qualified cardiologists ready and willing to take care of plaintiffs’ patients. For example, Norwegian American Hospital has five cardiologists serving a maximum of 100 patients, when only two or three cardiologists are necessary for a hospital of that size.
However, and more importantly, the record contains insufficient evidence regarding the level of hardship that enforcement of these physician restrictive covenants would impose on plaintiffs’ incumbent patients, if they wished to maintain their relationships with plaintiffs. For example, plaintiffs’ employer argued that there was “no basis in the record for an assumption that restrictive covenants among physicians will hinder patient care.” In support, the employer asserted that plaintiffs “were quickly granted privileges at a number of hospitals in the immediate area, including Weiss Memorial Hospital, Lincoln Park Hospital, Gottlieb Hospital, Westlake Hospital, Lincoln Park Hospital [sic] and Illinois Masonic Hospital.”
This argument misses the mark. The record does not disclose the addresses of these hospitals, or any evidence of the relative distances between these hospitals and those within the affected geographic areas. While this court could properly take judicial notice of the distances between locations (see, e.g., Dawdy v. Union Pacific R.R. Co., 207 Ill. 2d 167, 177-78 (2003)), still absent would be evidence of the hardship, if any, this data would impose on plaintiffs’ incumbent patients.7 Based on this lack of essential evidence of record, I would reverse the judgments below and remand the cause to the circuit court for additional fact-finding.
IV CONCLUSION
For the foregoing reasons, I concur in part and dissent in part.
If I were to take judicial notice of these relative distances, some would appear to demonstrate hardship to those of plaintiffs’ incumbent patients who wish to maintain their relationship with plaintiffs. For example, if one of plaintiffs’ patients received hospital services at Sacred Heart Hospital, located at 3240 W. Franklin Boulevard in Chicago, through a Health Maintenance Organization (HMO) or a Paid Provider Organization (PPO), that patient would have to travel approximately eight miles to see either plaintiff at Louis A. Weiss Memorial Hospital, located at 4646 N. Marine Drive. That same patient would have to travel approximately 11 miles to see either plaintiff at Gottlieb Memorial Hospital, located at 701 W. North Avenue, in Melrose Park, a suburb of Chicago. Of course, this assumes that either Weiss or Gottlieb were a recognized provider under the patient’s health insurer or HMO.