Graham, M.D., v. Cirocco, M.D.

69 P.3d 194 (2003)

Facts

P, a colorectal surgeon, recruited D to join his practice. D moved from New York to do so. There were then six colorectal surgeons in the metropolitan Kansas City area, including the parties; four had offices on the Missouri side of the border, and P had his office on the Kansas side. P required D to sign a noncompetition agreement if he left employment with P. It was for 2 years. It required that D could not solicit patients within 150 miles of P's offices. D could not open an office within 25 miles of any of the hospital listed. D was allowed to accept patients who requested D's services in writing. D tendered his resignation on May 24, 2000, but continued to work until June 30, 2000. D opened his own new office for the practice of colorectal surgery next door to P 3 days later; this location was within 25 miles of the listed hospitals. D also began soliciting patients and referral sources of P's shortly before he left their joint practice. Despite these tactics, P's schedule remained full. Some patients had to wait three to four weeks for an appointment. Moreover, D had to remain on call 24 hours a day, 7 days a week, and he was again considering adding another surgeon to his practice to help with the workload. P sued to enjoin D. D argued that the covenant was unenforceable as against public policy because it suppressed ordinary competition by protecting interests in patient and referral contacts and would leave northeast Kansas with a shortage of colorectal surgeons. D presented expert testimony that northeast Kansas would be underserved if it had only one colorectal surgeon. The district court also heard testimony that patients requiring colorectal surgery whose surgeries were performed by general surgeons rather than members of the colorectal subspecialty have higher death rates than patients treated by colorectal surgeons. The court ruled that the covenant was reasonable in scope and duration and should be enforced in its entirety. The court granted a permanent injunction for 2 years, beginning March 1, 2001, pursuant to the duration term of the agreement. D appealed.