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Community Hospital Group4/5/2005
e qualified neurosurgeons, "enforcement of the covenant would not restrict the public's access to other qualified neurosurgeons within that area." Cmty. Hosp., supra, 365 N.J. Super. at 108-10. The panel reasoned that the burden on patients having to travel an increased distance did not automatically prevent Dr. More's patients from seeking treatment from him. Id. at 109.
Unfortunately, the panel failed to focus on the adverse impact the geographic restriction would have on neurological patients seeking treatment at Somerset's emergency room. Without Dr. More, Somerset's ability to provide necessary neurological treatment to an emergency room patient could be compromised. Moreover, the panel appeared to consider only patients who had the ability to travel beyond the restrictive area to visit Dr. More, and did not address those patients needing emergency neurological care in the area of Somerset or those patients who might not have the ability to travel beyond the large restricted area.
The evidence was overwhelming that prohibiting Dr. More from attending to neurological patients in Somerset's emergency room would be injurious to the public interest. A number of out-of-state-cases have found that similar evidence invalidated a restrictive covenant. See, e.g., Duneland Emergency Physician's Med. Group v. Brunk, 723 N.E.2d 963, 966-67 (Ind. Ct. App. 2000)(finding restrictive covenant unenforceable if it prevents physician from providing care to emergency room patients); Premier Health Care Services, Inc. v. Schneiderman, 2001 WL 1658167 at *11 (Oh. Ct. App. Dec. 28, 2001) (finding former employer's interest substantially outweighed by upheaval in medical care in hospital's emergency centers and therefore public interest weighs against granting of injunction); Emergicare Sys. Corp. v. Bourdon, 942 S.W.2d 201, 204 (Tex. Ct. App. 1997)(finding restrictive covenant unenforceable because it prevented doctor from continuing to serve public as emergency doctor). Because the geographic restricted area encompassed an area plagued with a shortage of neurosurgeons, the Appellate Division should have decreased the geographical limitation of the covenant. When it is reasonable to do so, courts should not hesitate to partially enforce a restrictive covenant. Karlin, supra, 77 N.J. at 420 n.4.
Somerset is located approximately thirteen miles from JFK and therefore is included in the restricted area. We are satisfied that if the covenant were limited to a distance less than thirteen miles so that Somerset was not within the restricted area, the covenant would not have the same adverse impact on the public that it presently has. A remand is necessary for the Chancery Division to determine the precise limits of the geographic area of the restriction, but in no event should it exceed thirteen miles or include Somerset.
Our dissenting colleague points to the language of the restrictive covenant in which the parties agree that the terms are "reasonable." Because Dr. More"voluntarily signed" three separate covenants containing that language, the dissent concludes that the doctor's actions "deserve our condemnation." Post at ___ (slip op. at 2) Although acknowledging that "equitable considerations are paramount," (post at ___ (slip op. at 3)) when the validity of a restrictive covenant is at issue, the dissent disregards that principle, and instead, chastises Dr. More. We are satisfied that the interests of patients at Somerset who need emergent neurological care come first, and should not be put aside because Dr. More disregarded the terms of his agreement with JFK.
V.
Finally, we note that under JFK's interpretation of the agreement the two-year period for the term
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