In the recent case of Cristina Tranatola, M.D. v. William B. Henghold, M.D., P.A., 42 Fla. L. Weekly D543 (Fla. 1st DCA March 7, 2017), the court ordered the trial court to limit the scope of an injunction based upon a “participle phrase.” There, the restrictive language prohibited the doctor from “directly or indirectly rendering medical services that include performing Mohs surgery in any capacity for Employee’s own account or for others.” The trial court prohibited the doctor from performing all dermatologic medicine, including Mohs surgery. The appellate court, however, found that the doctor was allowed to practice dermatology but could not perform the Mohs-related procedures. The court found that the “participle phrase, ‘including Mohs surgery’” was not one of limitation and that, therefore, the restrictive covenant should only cover Mohs-related medicine. If the medical practice wanted to limit the employee from performing all dermatologic procedures, it could have stated “ all dermatologic medicine.” From the standpoint of non-compete drafting, as this case illustrates, grammar is important.
This article does not constitute legal advice or the formation of an attorney-client relationship, and is not for re-publication without express permission of the author.