concurring in part and dissenting in part.
I concur with Part III of the majority opinion. However, I respectfully dissent to Parts I and II. I believe the trial court erred in granting the motions to dismiss and for summary judgment of defendants Columbine Medical Group, Inc. (CMG) and FHP of Colorado, Inc. (FHP).
I agree with plaintiff that the termination without cause provision in the physician service agreement is void as against public policy because of the strong potential for the provision to negatively impact on the physi-clan-patient relationship and on the quality and continuity of patient care, which should be determinations grounded in medical science and not bottom-line corporate economics.
Initially, I concur with the majority that, although a close question, a review of the record reveals that this issue was raised sufficiently to require us to address it on appeal. Cf. Estate of Stevenson v. Hollywood Bar, 832 P.2d 718 (Colo.1992).
Courts will not enforce contracts or contract terms that are void as contrary to public policy. A contractual provision is void "if the interest in enforcing the provision is clearly outweighed by a contrary public policy." Federal Deposit Insurance Corporation v. American Casualty Co., 843 P.2d 1285, 1290 (Colo.1992) (F.D.I.C.); Martin Marietta Corporation v. Lorenz, 828 P.2d 100 (Colo.1992); Stanley v. Creighton Co., 911 P.2d 705 (Colo.App.1996)
Public policy need not be explicitly set out in a statute in order to require the voiding of a contrary provision in a contract. Stanley v. Creighton Co., supra. It is enough if a court, in determining whether a contract provision is void as against public policy, applies the requisite balancing test, and can determine that the interest in enforcing the provision is outweighed by a contrary public policy. F.D.I.C., supra.
Section 10-16-121(2)(c), sets forth the basis for the termination without cause provision in the contract at issue here. The statute states, in pertinent part:
Nothing in subsection (1) of this section shall be construed to prohibit a carrier from:
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Terminating a contract with a provider pursuant to a contract provision that allows either party to the contract to terminate the contract without cause pursuant to specific notice requirements that are the same for both parties.
The contract at issue here complies with this and any other applicable statutes concerning notice requirements.
Based on the detailed rationale argued by plaintiff, I conclude that enforcement of the termination without cause provision here is clearly outweighed by a more important and publicly necessary policy of protecting the ability of physicians to exercise their best judgment to preserve the life and health of citizens through medical science. I further conclude that the contract provision, as applied here, injures the public, is against the public good, and is inconsistent with sound public policy. See Oliver v. Wilder, 27 Colo.App. 337, 149 P. 275 (1915).
*273The overriding public policy against which I determine the contract provision cannot stand is grounded in the tradition and practice that almost nothing should be allowed to come between a physician and his or her attempts to protect the health of a patient. It is this notion that justified establishment of a public board of medical examiners to protect the public against improper practice of medicine. See §§ 12-86-102 to 12-36-104, C.R.S.1999. .
This policy of continuity and quality of health care is at the heart of the American Medical Association's Code of Medical Ethics. See AMA, Fundamental Elements of the Patient-Physician Relationship (1994)(Fundamental Elements). This policy is also the rationale for other statutes that are designed to protect patients. See §§ 10-16-701 to 10-16-708, C.R.98.1999 (Consumer Protection Standards Act for the Operation of Managed Care Plans); § 10-16-121, C.R.S8.1999 (protecting ability of health care providers to make health care decisions without interference from health insurance carriers); § 26-4-1l17(g), C.R.S.1999 (requiring continuity of care for new enrollees who have special needs).
Because I believe that the termination without cause provision significantly impacts detrimentally on the integrity, stability, and maintenance of the patient-physician relationship, the provision is clearly outweighed by the public policy of the state to protect that relationship.
When a physician is terminated as occurred here, the patient-physician relationship may be severed completely because it may be impossible for a patient to use the de-selected physician any longer due to lack of insurance and other financial constraints. Furthermore, severance of the patient-physi-clan relationship is compelled without the consent of either party, each typically having the exclusive right to terminate their relationship. See § 18-90-107(1)(d), C.R.8.1999 (the patient-physician privilege); AMA, Fundamental Elements (1994).
Finally, I conclude that the termination without cause provision is clearly outweighed by the public policy of protecting a physician's ability to practice medicine. This policy, which is recognized in the non-competition statute, prohibits covenants not to compete that restrict the right of a physician to practice medicine. Section 8-2-113(8), C.R.S8.1999.
Deselection likely has the effect of separating physicians from their patients and, thereby, prohibiting their practice of medicine as to a large segment of their patient load. The substantial detrimental effect on the ability of deselected physicians to earn a livelihood is an important part of why the termination without cause provision is clearly outweighed by predominant public policy. See Potvin v. Metropolitan Life Insurance Co., 68 Cal. Rptr2d 202, 208-209 (Cal. cert. granted, 67 CalRptr2d 1, 941 P2d 1121 (1997) (physician must receive fair hearing before HMO can remove physician from provider network, even with termination without cause provision in provider contract, where terminating party controls "substantial economic interests" concerning the physician); see also Ambrosino v. Metropolitan Life In-swrance Co., 899 F.Supp. 488 (N.D.Cal.1995) (physician has right to fair hearing regarding termination from insurer's network); Delta Denial Plan v. Banasky, 27 Cal. App Ath 1598, 38 Cal.Rptr.2d 881 (1994) (to same effect regarding dentists viz a dental plan).
For these public policy reasons, I conclude that the trial court erred in entering summary judgment in favor of defendants. I, therefore, would reverse the summary judgment and dismissal of plaintiffs action and remand the cause for further proceedings concerning plaintiff's termination as follows: Because the termination without cause provision of the contract is void as against public policy, I would require that, on remand, plaintiff receive a fair hearing, including the meaningful opportunity to respond, and that termination may only be upheld for cause that does not, as a matter of law, violate public policy.