For these and additional reasons, we conclude that interstate commerce is adversely affected and should be addressed at the federal level.

The Effect of Non-Competes in Consolidated Hospital/Health System Markets

There is ample evidence that the markets related to the U.S. hospital sector are broken. Over the last 30 years, a wave of hospital mergers in the U.S. have substantially increased market concentration. In fact, some calculations indicate that, at present, more than 80% of hospital markets in the U.S. are “highly concentrated,” based on criteria set out in the Department of Justice/FTC horizontal merger guidelines.¹ In addition, there has been a marked increase in the consolidation of health systems.² Hospitals and health systems are also increasingly buying physician practices—a concerning trend with the potential to further shield hospitals from competition from and among physician practices. According to a recent report by Avalere, nearly 70% of U.S. physicians are now employed by a hospital or a corporate entity.³ There is also growing concern that hospital credentialing policies are being used to promote corporate economic interests and to stifle competition instead of promoting professional standards and quality care as originally intended. Many SCAI members have been at the receiving end of these anticompetitive trends. For example, in 2010, approximately 80-85 percent of our members practiced medicine in an office-based or group practice. Now, more than a decade later, over 85 percent of SCAI members are employed by hospitals and health systems.

These restrictions on competition in the hospital and health system market have had a corresponding adverse effect on competition in the market for physician services. These anticompetitive trends are compounded by the prevalence of restrictive non-compete agreements to which a significant portion of physicians are subject. Already limited by their state licensure and hospital credentialing policies, “take it or leave it” covenants not to compete with ever-growing hospital systems have substantially limited the ability of interventional cardiologists to take positions that will allow them to provide the best quality care to their patients.

The consolidation of health systems has resulted in reduced access to care for patients in rural, underserved, and lower socio-economic status areas, a problem that is aggravated by restrictive physician non-competes, resulting in inequitable outcomes for diverse and underserved patient populations across the United States.

Regulation of Non-Competes Is Long Overdue and Supported by Substantial Evidence

The FTC has conducted an examination of non-compete clauses in January 2020, bringing the number of Administrations that have examined health care competition to four, including the first Trump Administration. For example, in March 2016, the U.S. Treasury Department issued a report entitled “Non-Compete Contracts: Economic Effects and Policy Implications,” based mostly on non-public studies, asserting pervasive misuse of non-competition agreements. In Congress, a bill titled the Workforce Mobility Act (the “Act”) was recently reintroduced in February 2025. The bill seeks to prohibit the use and enforcement of post-employment non-competition agreements. SCAI supports the enactment of this legislation.

FTC research has showed, among other things, that 45% of all physicians are under some type of non-compete clause, that about one in five of all American workers are bound by a non-compete clause that restricts them from pursuing better employment opportunities, and that non-compete clauses clearly harm the economy, harm workers, and harm patient access to the healthcare they desperately need.

Non-compete agreements prevent physicians from practicing medicine in their communities when they want or have to change jobs—de facto limiting patients’ access to their physicians, and ultimately impacting public health as a whole. In a recent study conducted on the impact of non-compete clauses on surgeons in the State of Louisiana, physicians surveyed strongly believed non-compete clauses negatively impacted patients, including forcing patients to drive long distances to maintain continuity of care (64.4%) and forcing surgeons to abandon their patients if they seek new employment (76.7%).⁵ Continuity of care was the issue cited in Statesville Medical Group v. Dickey, where a physician defendant was the only practicing endocrinologist in the area. A non-compete agreement would have prevented him from providing endocrinology services in his community, which would force existing patients to travel an additional 40 miles to see the nearest provider.⁶ The court ruled against enforcing the non-compete agreement because that distance would have impacted “the availability of a doctor at all times for an emergency.” In addition, it would have ended existing doctor-patient relationships, severing continuity of care.

Unsurprisingly, non-compete agreements can also have a detrimental impact on public health, as was the case in Iredell Digestive Disease Clinic v. Petrozza.⁷ In that litigation, enforcing a gastroenterologist’s non-compete would have left only one remaining gastroenterologist in the community. Without another gastroenterologist, patients would not only lose their continuity of care, but it would have also created a monopoly for the remaining gastroenterologist, taking the choice away from patients to decide which provider to see based on their needs and preferences. The court viewed these possible outcomes as a danger to public health and refused to enforce the non-compete stating, “if ordering [the physician] to honor his contractual obligation would create a substantial question of potential harm to the public health, then the public interests outweighs the contract interests…”

Some commenters have argued that the FTC must make an exception for non-compete agreements with physicians. There is certainly no legal basis for this claim, and the idea that non-compete clauses somehow benefit physicians or patients is defied by the facts. As shown above, non-compete clauses restrict physician job mobility and incomes and limit their ability to provide high quality treatment to their patients. An economic argument could be made in cases where an employer is seeking recoupment for reasonable resources expended in connection with their time and training of an employee. Should the FTC contemplate any exceptions in the future we want to be clear, however, that they should reasonable, limited, and not limited to physicians and nurses only. For example, “small employers” are often provided special considerations and defined to include businesses with variable numbers of full-time employees (e.g., 10-50 employees).

In summary, non-compete clauses, combined with ever-growing hospital and health system consolidations, prevent the interventional cardiology community from providing care, and importantly, restrict patients’ access to care.

¹ Federal Trade Commission and Department of Justice Horizontal Merger Guidelines, https://www.justice.gov/atr/horizontal-merger-guidelines-08192010 (Aug. 19, 2010).

² Michael Furukawa et al., Consolidation Of Providers Into Health Systems Increased Substantially, 2016–18, https://www.healthaffairs.org/doi/10.1377/hlthaff.2020.00017 (Aug. 2020).

³ COVID-19’s Impact On Acquisitions of Physician Practices and Physician Employment 2019-2020, http://www.physiciansadvocacyinstitute.org/Portals/0/assets/docs/Revised-6-8-21_PAI-Physician-Employment- Study-2021-FINAL.pdf?ver=K6dyoekRSC_c59U8QD1V-A%3d%3d (June 2021).

⁴ William F. Sherman et al., The Impact of a Non-Compete Clause on Patient Care and Orthopaedic Surgeons in the State of Louisiana: Afraid of a Little Competition?, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC9569414/ (Oct. 2022).

5 Statesville Med. Grp., P.A. v. Dickey, 106 N.C. App. 669, 671, 418 S.E.2d 256, 258 (1992).

⁶ Iredell Digestive Disease Clinic, P.A. v. Petrozza, 92 N.C.App. 21, 30, 373 S.E.2d 449, 454 (1988).