(dissenting). I would hold that the restrictive covenant in question contained in the employment agreement between two medical doctors is per se invalid as against public policy. Accordingly, I would affirm the ruling of the trial judge who granted a summary judgment in favor of defendant on this issue.
The parties to this suit are medical doctors specializing in the practice of dermatology. Defendant entered into plaintiffs employ in Denville, ET. J. on July 1, 1978 for a one-year period. The written contract of employment contains this provision:
(b) Upon the termination of Dr. Weinberg’s employment hereunder for any reason whatsoever, he shall not, for a period of five years thereafter, except with the written consent of Dr. Karlin, engage in the practice of dermatology within a 10 mile radius of 60 Broadway, Denville, New Jersey.
Upon expiration of the employment agreement the parties continued their association under an oral partnership arrangement, the terms of which are disputed but not essential to resolution of this controversy. I assume for present purposes that it was intended that Dr. Weinberg was to remain subject to the restrictive covenant even after commencement of the partnership. In January 1976, as a result of a falling out between the two doctors, defendant notified plaintiff that he was withdrawing from the partnership and intended to open his own office in Denville. This suit followed.
The art of healing the sick and the infirm is affected with a public interest. The restrictive covenant, which the Court is upholding in principle, does violence to the concept of the physician-patient relationship. A person requiring medi*426cal treatment and advice goes to the doctor of his or her choice. This is an important consideration because confidence in the doctor, although intangible, is a significant factor in providing effective medical care. Often, diagnosis and treatment require disclosure by the patient of personal and confidential information to the doctor, as well as thorough familiarity with the patient’s past medical history. The law, recognizing the special nature of this relationship, has privileged communications between patient and physician. N. J. 8. A. 2A:84A-22.2.
The relationship is so personal and so sensitive, and the right of a patient to consult the physician of one’s own choice so fundamental, that a restrictive covenant which substantially intrudes on that relationship and interferes with that fundamental right should be held to be contrary to public policy. This policy does not exist for the benefit of the physician consulted, but rather to protect the patient’s right to seek medical treatment from the doctor whom the patient believes is best able to treat him.
It is to be noted that when defendant opened his own office, approximately 50% of his patients were persons he had previously treated during his association with plaintiff. As to these persons, defendant had an established physician-patient relationship (knowingly fostered by plaintiff), which the patients are entitled to have protected. As to those patients, enforcement of the covenant would require that they travel substantial distances if defendant is to continue treating them. The other patients came to defendant in response to a newspaper advertisement announcing the opening of his new office, or were referred to him by other physicians. These patients have the right to consult with the doctor of their choice without undue inconvenience to themselves.
In Dwyer v. Jung, 133 N. J. Super. 343 (Ch. Div. 1975), aff’d o. b. 137 N. J. Super. 135 (App. Div. 1975), it was held that a restrictive covenant contained in a law partner*427ship agreement was void as against public policy. The reasons given in that case are highly analogous to those I have discussed above as warranting striking down the same kind of restrictive covenant in an employment agreement between physicians.
I do not read Dwyer as invalidating the restrictive covenant merely because it would result in a violation of DR2-108(A) of the Disciplinary Rules of the Gode of Professional Responsibility of the American Bar Association (as amended by this Court). Rather, the trial judge said that a client is always entitled to be represented by counsel of his own choosing; that the attorney-client relationship is consensual, highly fiduciary on the part of counsel, and that the attorney may do nothing which restricts the right of the client to repose confidence in any counsel of his choice. He then held that a restrictive covenant between attorneys was contrary to public policy because it was in violation of these principles. DR2-108(A) was cited as an indication of the strength of that public policy.
The majority opinion herein, while it approves the Dwyer holding, would distinguish between the attorney-client situation and the physician-patient relationship, and would not extend the Dwyer rationale to the latter. I see no essential difference in principle. Both relationships are consensual, highly fiduciary and peculiarly dependent on the patient’s or client’s trust and confidence in the physician consulted or attorney retained.
The majority opinion refers to efforts, both past and present, in the Legislature of this State to have restrictive covenants between physicians declared to be void and unenforceable. While I agree that these efforts do not demonstrate legislative intent, they do indicate the controversial nature of this type of restrictive covenant.
I vote to affirm the judgment of the trial judge which held that the restrictive covenant in question was per se void as against public policy.
*428Justice Pashman and Judge Confobd join in this dissent.
For affirmance — Chief Justice Hughes and Justices Clif-fobd, Schkeibek and Handler — 4.
For reversal — Justices Sullivan and Pashman and Judge Confoed — -3.