Mountain Comprehensive Health Corporation (MCHC) is appealing a judge’s ruling that prevents the company from enforcing a contractual provision that would keep Physician’s Assistant Crystal Gibson from working in much of southeastern Kentucky and parts of southwest Virginia for at least a year from her last day of employment with MCHC.
MCHC filed notice of the appeal on February 25, about three weeks after Special Letcher Circuit Judge Stephen D. Combs ruled the company could not enforce the provision, known as a “restricted covenant,” against Gibson, of Isom.
Combs, a Pike Circuit judge who was assigned the case after Letcher Circuit Judge Sam Wright stepped aside, ruled February 6 the “restricted covenant” cannot be enforced because the agreement is “no longer in force and effect” and because MCHC has in the past declined to enforce similar contract restrictions against other medical providers who have left the company.
Gibson, who began working for MCHC in January 2004, left the Whitesburg Medical Clinic April 2, 2012, six months after informing the company she would not be renewing the three-year contract she signed in April 2009. She had asked to be allowed to stay on the job until fall 2012, but MCHC officials enforced a contract termination date of March 30, 2012. Gibson then went to work helping to set up a private obstetrics and gynecology practice for Dr. N. Wade Baker, who had announced some time earlier that he would be leaving MCHC in September 2012 to open a private obstetrics and gynecology practice now known as the Whitesburg Women’s Center.
The three-year “Physician Assistant Employment Agreement” between Gibson and MCHC contains a clause barring Gibson from working with a 50-air mile radius of any of MCHC’s not-for-profit clinics located in Letcher, Harlan, Perry and Owsley counties for one year from the date her contract ended.
However, argued Gibson’s attorney, the contract also contains a “force majeure” clause that permitted Gibson, whose field of specialty is OB/GYN, to leave MCHC when Dr. Baker announced he was leaving the company. Gibson had worked with Baker since joining MCHC.
Noting that MCHC didn’t have a replacement OB/GYN physician in place when Gibson was forced to make her decision on whether to stay with MCHC or leave to work with Dr. Baker, Judge Combs said “the fact that Dr. Baker would not be continuing his employment with (MCHC) and planned to open and did open his own medical office was outside of (Gibson’s) control and could not have been prevented by her with any amount of diligence, let alone reasonable diligence.
“… The fact that Dr. Baker and (MCHC) did not come to terms left (Gibson) in a position of such that she was an OB/GYN physician’s assistant in a clinic that would soon have no OB/GYN.”
Judge Combs also ruled the restricted covenant cannot be enforced because it “contains an unreasonable geographic restriction” of 50 air miles within any (MCHC) clinic.
“The enforcement of the restricted covenant would create issues of continuity of care for numerous OB/GYN patients in and around Letcher County,” Judge Combs wrote.
The 12-month restrictive covenant in Gibson’s contract is now scheduled to expire in 13 days (April 2).
The notice of appeal Gibson is being represented in the case by Whitesburg attorney Daniel F. Dotson. Attorney Gene Smallwood Jr., also of Whitesburg, is representing MCHC.
The February 25 notice filed on behalf of MCHC begins the appeal process. The next step is the scheduling of a “prehearing conference” that will be scheduled after a statement is filed on behalf of MCHC within 25 days of February 25 and a response is filed on behalf of Gibson within another 10 days.