dissenting:
My disagreement with the majority is its rigid adherence to a formulation which was designed to provide some flexibility in this area of the law. See Reddy v. Community Health Foundation of Man, 171 W.Va. 368, 298 S.E.2d 906 (1982).
One needs only to read Part III of the majority’s opinion to realize how it has twisted the facts. It does not mention the critical fact that motivated Dr. Gant’s leaving Hygeia Facilities Foundation, Inc., which was his doctor’s advice to do so because his stressful working conditions caused hypertension, colitis, and weight loss. The majority grudgingly admits that Dr. Gant was bringing in far more in fees than he was being paid by Hygeia. In the last seven months, it was almost a 3-to-l ratio, i.e. $56,848 to $150,953. Moreover, Hygeia never showed any material financial loss from Dr. Gant’s departure. It did not have any extraordinary investment in Dr. Gant, as he came to its clinic without Hygeia having helped him on his medical *810school expense. Thus, Dr. Gant had rebutted the criteria established in Syllabus Point 4 of Reddy.1
Consequently, the majority is forced in Part III to invent a new hurdle, i.e., that the goodwill of the patients of Hygeia was what the covenant was designed to protect. One may search Reddy in vain to find this factor as a part of its formula.
Finally, in a case like this, there is something more involved than a mere incantation of economic and accounting terminology. There is a vital public issue at stake which is accessible health care to the citizens of our State. There is no question but that this State lacks physicians who are willing to practice in rural areas. Consequently, under these conditions, it is absurd to suggest, as does the majority, that somehow Hygeia will lose any significant amount of business by Dr. Gant’s going into practice. Indeed, Dr, Gant’s testimony is that he is involved in a limited office practice. If patients need diagnostic tests, he refers them to Hygeia.
Courts which have had occasion to discuss the question of restrictive covenants for physicians recognize that in order to uphold such a covenant, it must be demonstrated that the public will not suffer by being denied the medical services precluded by the covenant. Typical is Ellis v. McDaniel, 95 Nev. 455, 459, 596 P.2d 222, 225 (1979), where the court concluded:
“If Dr. Ellis is not permitted to practice his specialty there, patients in need of orthopedic services will be forced to travel great distances at considerable risk and expense in order to avail themselves of such services. Thus, in the instant case, the public interest in retaining the services of the specialist is greater than the interest in protecting the integrity of the contract provision to its outer limits.”
See also Odess v. Taylor, 282 Ala. 389, 211 So.2d 805 (1968); Damsey v. Mankowitz, 339 So.2d 282 (Fla.App.1976), cert. denied, 345 So.2d 421 (Fla.1977); Dick v. Geist, 107 Idaho 931, 693 P.2d 1133 (1985); Iredell Digestive Disease Clinic v. Petrozza, 92 N.C.App. 21, 373 S.E.2d 449 (1988), aff'd, 324 N.C. 327, 377 S.E.2d 750 (1989); Williams v. Hobbs, 9 Ohio App.3d 331, 460 N.E.2d 287 (1983); New Castle Orthopedic Assoc. v. Burns, 481 Pa. 460, 392 A.2d 1383 (1978).
Here, Hygeia did not demonstrate that the public would not suffer by being denied Dr. Gant’s medical services.
I am authorized to state that Justice McHUGH joins me in this dissent.
. Syllabus Point 4 of Reddy states:
"An employee may rebut the presumptive enforceability of a restrictive covenant by showing: (1) that he has no ‘trade assets’ of the employer to convert; (2) that such ‘trade assets’ as he has belong to him and not to the employer; (3) that the employer could be equally well protected by a narrowed covenant; or (4) that the employer has had time to recoup any extraordinary investment in the employee.”