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Community Hospital Group4/5/2005
mount strong arguments in favor of their respective positions. We recognize the importance of patient choice in the initial selection and continuation of the relationship with a physician. We also agree that the similarities between the attorney-client and physician-patient relationships are substantial. Notwithstanding those considerations, on the record before us we find insufficient justification to overrule Karlin and adopt a per se rule invalidating restrictive covenants between physicians or between a physician and a hospital.
The medical profession has accommodated the Karlin test for more than twenty-five years. The relationships among individual physicians, medical practice groups, and hospitals in delivering healthcare are complex. An established rule that has governed those relationships for several decades should not be discarded unless we are reasonably certain that we have a problem in need of a cure. Further, the Karlin analysis includes a public interest component that we today emphasize. So long as the public interest takes precedence over private or parochial concerns, the plaintiff's arguments in support of a per se rule voiding restrictive covenants are less persuasive. On the current record, we cannot conclude that prohibiting restrictive covenants among physicians and hospitals will in fact advance the public interest.
Except for attorneys, see Jacob v. Norris, McLaughlin & Marcus, 128 N.J. 10, 27 (1992), and more recently, psychologists, see Comprehensive Psychology System, P.C. v. Prince, supra, 2005 WL 275822 (App. Div. 2005), our courts have consistently utilized a reasonableness test to determine the enforceability of restrictive covenants. Contrary to Dr. More's and Somerset's contention, we find no logical justification to treat a hospital-employer differently from a physician-employer. If either the hospital-employer or the physician-employer cannot establish that it has a legitimate business interest and, most important, that enforcement of the restriction will not be injurious to patient care, then enforcement of the restriction should be denied.
C.
We recognize that several commentators have criticized the distinction our law makes between physicians and attorneys in respect of restrictive covenants. See Paula Berg, Judicial Enforcement of Covenants Not to Compete Between Physicians: Protecting Doctors' Interests at Patients' Expense, 45 Rutgers L. Rev. 1, 36-37 (1992) ("The inconsistent judicial treatment of restrictive covenants between [attorneys and physicians] cannot be justified. Indeed, the philosophical and public policy underpinnings of the per se rule apply with greater force to restrictive covenants between physicians than to restrictive covenants between attorneys"); Serena L. Kafker, Golden Handcuffs: Enforceability of Non-competition Clauses in Professional Partnership Agreements of Accountants, Physicians, and Attorneys, 31 Am. Bus. L.J. 31, 56 (1993) ("The special trust patients place in their physicians merits as much if not more protection than that of the lawyer's client."); Arthur S. Di Dio, The Legal Implications of Non-competition Agreements in Physician Contracts, 20 J. Legal Med. 457, 473 (1999) ("The public policy concern with restrictive covenants between attorneys is grounded in the sanctity of the attorney-client relationship. It is curious, if not completely illogical, that the same concern does not apply as forcefully to the physician patient relationship and render restrictive covenants between physicians per se invalid as well.") Despite that criticism, we continue to rely on this Court's power to govern the ethical standards of the legal profession as justification for our decision to treat attorneys an
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