In this episode, hosts Brad and Michael sit down with Dr. Nirav Patel, a board-certified plastic surgeon and founder of Patel Plastic Surgery. Dr. Patel shares how signing a two-year, 15 mile non-compete agreement led to unexpected challenges when he decided to open his own practice. Tune in to understand the long-term impacts of non-competes, how minor restrictions can lead to major business consequences, and how physicians can protect their autonomy.
Listen to the full episode using the player below, or by visiting one of the links below. Contact ByrdAdatto if you have any questions or would like to learn more.
Transcript
*The below transcript has been edited for readability.
Intro: [00:00:00] Welcome to Legal 123s with ByrdAdatto. Legal issues simplified through real client stories and real world experiences, creating simplicity in 3, 2, 1.
Brad: Welcome back to another episode of Legal 123s with ByrdAdatto. I’m your host, Brad Adatto, with my co-host, Michael Byrd.
Michael: As a business and health care law firm, we meet a lot of interesting people and learn their amazing stories. This season’s theme is Unintended Consequences. Brad, we sometimes find ourselves in a situation that can be traced back to a seemingly inconsequential or unrelated decision.
Brad: Yes. And today I’m really excited about bringing on the guests we have. We had the pleasure of actually speaking with them on panels over the years, but Michael, did you know what I find very interesting about him?
Michael: That, like you and me, he comes from a family of doctors? Yes.
Brad: That’s correct. But wait, there’s more. What I was thinking about was the fact that he is a professional classically trained [00:01:00] musician. Yes, that’s correct, people. He is cellist having soloed multiple times with the Atlanta Musicians Orchestra, served as the assistant principal cellist for the Georgia Symphony Orchestra, and won their position of the principal cellist for the Georgia Philharmonic. I mean, I can’t even pronounce half that stuff. And he’s doing it.
Michael: I was just about to give you a standing ovation for saying all those words.
Brad: But audience members, that sounds pretty impressive, except understand this, this is all while being an active surgeon with his own practice.
Michael: And an attorney.
Brad: Oh, yeah, that too.
Michael: Yeah. Well, this actually makes me think you really need to step up your game, Brad.
Brad: The sad part, Michael, is I thought I’d stepped it up and I had to get him on our podcast. So our guest who he’s joining us, and it made me think, have you ever played a musical instrument? I mean, you have that mad typing skills and everything, but have you been able to translate that into music?
Michael: [00:02:00] No, Brad, other than, and you know this, because you’ve heard me talk about this before; when my oldest son, who’s 28, got Guitar Hero for his game system many years ago, I oddly was very good at that because it’s like typing. And so, I felt like a rockstar in that little segment of life where I just kept going to the next level. I don’t know. How about you, Brad? I’m picturing you playing a trumpet maybe?
Brad: No, actually not a trumpet. I actually played saxophone for the school band from fifth grade all the way to my junior year of high school. So actually, and I was in a small little jazz band, so that was my claim to fame at one moment. But I was thinking about our guest, he’s playing professionally in addition to running his own practice. Why can’t we?
Michael: Because we’re tone deaf.
Brad: Well, I’m mostly tone deaf. You’re really tone deaf. Well, if you could play any instrument today on a professional level, what would it be, Michael?
Michael: [00:03:00] Whichever is the easiest to learn – because I don’t like learning new things because I don’t like being bad at things. And so, I need to be able to get good at it really fast for me to continue with it. I’m feeling very hesitant to turn it back to you. What instrument would you play and no, Brad, the kazoo does not count.
Brad: Okay. Honestly, as a true resident rockstar of the firm, clearly guitar and not Guitar Hero, like you, like the real guitar. But unlike you, I’d be really nervous. I’d have to like, practice by myself in a back closet so no one could hear how bad I was. But before our guests can realize that he can leave, why don’t we bring him on and get him going before he’s going to go click off of this.
Michael: That’s a really good idea. Let’s bring him on. So joining us today is Dr. Nirav Patel. We go way back, been on panels together, as you mentioned. He is the founder/owner [00:04:00] of Patel Plastic Surgery in the greater Atlanta, Georgia region. He’s a board certified plastic surgeon, plastic reconstructive aesthetic and oculoplastic. That’s a big word there, Brad. He has a bachelor’s degree in economics from Princeton University. A J.D., yes, a lawyer from Brooklyn Law School. He’s licensed in New York. And then if that weren’t enough as a bridge to medical school, he has a master’s degree in biology at New York University and a medical degree from University of Rochester. And of course, as we just talked about, he continues to perform and be involved with classical music at a professional level. Nirav, thank you for being here today.
Nirav: Thanks so much for having me on board. My ears are burning with all the music talk. Had rehearsal last night, so it’s a lot of fun.
Brad: Awesome. Well, that leads us actually to our first question that we want to know, and the audience probably wants to [00:05:00] know. Where’s the most famous place you’ve ever played, and can you play any pop culture or top 100 hits on your cello?
Nirav: Yes and yes. So, I’ve played at the Fox Theater – if people have heard of that in Atlanta. I’ve played at other kind of halls that more classical nerds would know about. But I’ve been to Europe, I’ve been to Spain, I’ve been to United Kingdom, played Durham Cathedral – people have ever been there in England, so those are just a couple of examples. Yeah, pop songs people like or y’all have kids as well. The TV show, Wednesday, Netflix, I have the sheet music for it. I couldn’t play it from memory, but I can play that. And there’s other things that play a lot. Like, Master and Commander had a famous Bach piece that plays on a lot of TV commercials and stuff. And that one we all learn, it’s like a Bach suite, so I once did that for a podcast during Covid.
Michael: Oh, wow.
Nirav: Those are a couple examples. And I love doing pop and rock shows. We just did a Sonic the Hedgehog video game concert at [00:06:00] Cobb Energy Center here in Atlanta in January. I hadn’t seen so many screaming fans for like headbanger music, and I’m playing the cello with a headset like this, trying to keep count because it was so loud.
Brad: That’s awesome. That’s super cool. Yeah, he’s crushing us right now, Michael.
Michael: Yes. Yes. Well, let’s get a little bit more into your story, your background and the stuff we haven’t covered. Just introduce yourself to our audience and help us help them kind of connect to you and your background.
Nirav: Yeah, absolutely. So for those of you who are Yankees, like me, I’m a New Yorker, born and bred there. My dad actually is a physician as well, colorectal surgeon. Immigrated from India and did his residency there. But then we were raised upstate after he settled in his own solo private practice, which my mom managed, the same way. My wife Erica managed my current practice. So those of you who have like mom and pop [00:07:00] kind of solo entrepreneurship roles, this is for you. My brother actually is a surgeon too. My older brother’s the chief of trauma and critical care at Vanderbilt, so I have a whole nuclear family of people in surgery and medicine. And being an Indian American kid, if those of you know this story or Asian-American, it’s kind of like you’re asked when I was growing up, not even what kind of doctor you want to be, but what kind of surgeon you want to be. And so, I went with that wholeheartedly, and I can’t speak for myself now, but I was a pretty whip smart kid as a teenager. I went to college at 16. I recommend that my kids are not going to do that, but I was able to accelerate to that point.
I went to college having doubts about the whole pre-med thing I’d been thinking about ever since I was five. So I tested out other waters, I was interested in music, as you guys know, and I still do. I like social sciences, which is probably what had me study econ and then later law, [00:08:00] so I was a bit lost. A lot of college kids have doubts and try different things. And so, I worked for a lawyer’s office in New Jersey. I loved it. And I said, Hey, maybe I could help society in that capacity. So I jumped ship on the college plan for pre-med, and I switched to pre-law kind of midstream. And then my conservative kind of Indian parents were supportive of it because it was some kind of grad school leading to some kind of white collar professional job, so it kind of checked both boxes and it intrigued my interest. And so I went to Brooklyn. It was the best school I thought I could get into in the New York City area, and I had little scholarship to whet my appetite. I love the neighborhood I was in. It was in downtown Brooklyn. Lots of courthouses, lots of things going on, Brooklyn Bridge, all that – and I was single. So I went to Brooklyn Law and then lo and behold, 9/11 happened. So that was a shock to everybody’s system. Everybody’s got, got a 9/11 story, whether you were in New York or not.
My wife, we were not dating at the time, but we [00:09:00] were both there, and had another career epiphany. And I didn’t want to have any regrets about leaving a childhood passion of mine being medicine. So I switched again and I called my pre-med office up with my record and they laughed me off and said, good luck buddy, maybe try another health profession. And I’m a stubborn stick to it kind of person, and I appreciate Michael’s comment about doing things well enough to be good at it, and so I always wanted to do things full till. And so anyways, I said, this is a challenge. I’m going to overcome it. And so I did my master’s to get my marks up and worked in a research lab, applied to med school a couple times, met my wife Erica, who was sitting next to me along the way. So it all kind of worked out. I wouldn’t have had the life I have now if I hadn’t made those mistakes or tried these different things, but I’m not a quitter. So I finished law school when I took the bar exam, passed it surprising on the first try being the kind of, I was not like the strongest student [00:10:00] or most interested student once I became pre-med again.
But anyways, I did that and I kept the certification and I actually do touching upon maybe later stuff. I do consulting work with a lot of attorneys and I get to speak with great folks like y’all once in a while about legal issues when they intersect with medicine. So I’ve always found how connections happened were fascinating with me across disciplines. So anyways, we were sick and tired in New York at that point. I was there for about seven years, my wife for almost a decade. And so, I applied to medical schools and I thought the best one I got into was up in Rochester, New York, a couple hours from where I actually was raised in Binghamton, for most of my life, so that appealed to the family in general. It’s a great med school, it’s a top tier med school. What got me interested in plastics was it’s a creative field. You have a left brain side to it and a right brain side to it. You got to take a repertoire just like you’re being a cellist and apply it creatively. So there’s a bit of science and there’s a bit of art [00:11:00] to plastics as people in lay public may know because the result’s very visual if there’s a challenge in doing that.
I had a lot of family members who had reconstructive surgery done to themselves. My nephew had a cleft lip done. My grandmother had flap surgery done for cancer to fill a defect, et cetera, and Rochester had a plastics program. And so, I give advice to young folks all the time interested in surgery; always best to go to a med school that has like every pathway you can sample because you need those letters to get your career going. And so I did that. I got the letters, I got the record. I was pretty serious. My son was born then, so then you really, y’all probably realize you really buckle down and you get serious about your life. So just like those of you like baseball like we do here in Georgia, you get drafted into your surgical specialty. So I got drafted, opened my draft day. Actually, I already knew because my program director accidentally called me the day before, which was [00:12:00] technically not kosher. My wife is still mad. I told her I ended up in California and I was like, thrilled because we have to move 3000 miles. You’d pack up all these boxes. So actually the only person surprise on match day for me was my son. My 2-year-old son opened the letter. He is like, yay. He tore it up.
So we ended up in California. It was combined general and plastic, six years. And then when I meet my faculty, I was considered a star resident. I took it really seriously and secured an aesthetic fellowship that was pretty coveted in Birmingham with James Grotting who used to be very involved with our societies and still very involved speaking and things like that. So, full range of aesthetic surgery training with him. And then we liked the southeast; my folks got a place in Hilton Head. They ended up retiring down here. My brother’s in Nashville. We got sick and tired of 30 years of snow in upstate New York. So I did a second fellowship in ocular plastics or eyelid surgery with Mark Codner [00:13:00] God rest his soul. He passed away, but he trained me, and that got me geared up for my group private practice, which I did for two years. And we’re going to get into talking about contracts and things like that. And then during covid again during disasters, I suppose I get career epiphanies. And then I decided, you know what, I really want the autonomy of being able to hang my own shingle and be my own boss. And so, I have been since ’21, and my wife’s my manager, and we run our practice as a plastic surgery practice, very similar to how my dad and mom ran their practice for 40 years in upstate New York doing the colorectal practice.
Brad: That’s an amazing journey. And for our audience members to keeping up; I mean, what a weaving way of going through life right now. I love this story so far. Now, let’s pivot a little bit now that you said you had your next epiphany. Tell everyone about, you’re at Patel plastic surgery right now.
Nirav: Sure. So just like me playing cello, I’ll do pop music, I’ll do classical. I love to play all sorts of things. Repertoire wise, [00:14:00] I like the broad range that plastic surgery offers and that’s why I went into it. There’s cosmetic, there’s reconstructive, you can do muscle flaps, you can be drilling somebody’s skull, doing bone repair or what have you. And so, I’m not a hand surgeon anymore. We used to do a lot of that in Sacramento in my training. But other than that, and microvascular is something folks do as well for certain kinds of things like breast reconstruction. I still offer everything else that a plastic surgeon’s trained to do, so that’s very rewarding to me. Case in point, I help our local colorectal surgeon when they have patients with abnormal connections after their surgery, they get fistulas and they can create all sorts of havoc down below. They need muscle to fix those holes, and so I’m the flap surgeon for them.
And so, I get to tell my dad, “Hey, I got to help your people.” With these kind of cases, it may not be life or death, but it’s very quality of life improving, which can be almost as important, if not more in some cases. I do a lot of facial [00:15:00] trauma call for my local hospital as well, which it’s good and it’s bad, but it helps with the overhead and it keeps my skills up. And lining up with that, with my law background, I do expert witness consulting and that as you guys may know from colleagues, it’s very much a word of mouth business. And so I get cases all over the country, both plaintiff and defendant, and I’ve learned there’s merits to both sides of these cases, so that was an interesting, even as a trained lawyer, an eye-opening window into how that kind of industry works. And I feel like I can articulate myself fairly well, I hope. And so, I think I’m good at it. And that’s been growing a lot.
I kind of have a hybrid practice between the consulting work and the clinical work. And then I just do music on the side. And I joke that being a professional cellist, you have a $50,000 cello, maybe not that expensive, but you’re driving a $5,000 car and you drive 500 miles and get paid for a gig, 50 bucks. And so, I joke with people that doing [00:16:00] the work that I do, paid work, helps fund my lifestyle as a musician. But I think being a musician makes me a better surgeon. Being a surgeon very disciplined and being time cognizant, being a business person helps me being a better musician. So, I think I’m at a point in my life where I’m starting to realize how I can keep things together and connections and have it all make sense at the same time.
Michael: That’s amazing. And also, they don’t teach you in law school how to give a deposition, so you may have some awareness, but learning that discipline is a learned experience for sure. No doubt.
Nirav: Advice to doctors out there. Just answer the question asked and wait until it’s your turn to speak. Podcasts are actually good prep for that because otherwise you’re talking over each other all the time.
Michael: For sure. Well, let’s get into – we’ve had the pleasure of being on stage with you several times, multiple times over the years, and so we know a little bit about kind of your journey [00:17:00] on the business side. This season our theme is Unexpected Consequences, and would love to get into kind of your personal experience that you’ve shared about non-compete and just kind of help educate our audience on that front. Do you mind kind of sharing that story?
Nirav: Absolutely. And just tying to the theme of Unintended Consequences, I think a lot of folks in business, in medical business had realized these unintended consequences during the pandemic. For example, there’s an Emory Aesthetic Surgery Center here that went belly up and they had to restructure because they were still paying people salary what I heard, half million a month kind of overhead. That, you’ll quickly go under if you don’t have any ins to go with your outs. So one factor I think played a role in me wanting to set up a shingle too, was I had to go salary less [00:18:00] during that furlough period. And raising young family, having a home mortgage, I mean, these are all lifestyle factors that can really make you scratch your head and say, hey, is this sustainable? Or is this the way I want my life to go where I’m not in control? And a lot of surgeons are control freaks like me, so I think that resonates, especially in plastic surgery.
Yeah, so I took a gamble on myself and opened up shop, and it was awkward when you have people you respect who are friends, but business can make things grittier or awkward on the way out when you exit. And so, I counsel a lot of younger folks going into this process based off my own lessons, even mistakes that I made. So, I did have a restrictive covenant with my group practice. It’s pretty standard here in Georgia. It’s interesting. I used to talk about this stuff with y’all and even independently as a resident in California, and people would come up to podium there and say, “Hey, well there’s no non-competes in [00:19:00] California.” That’s all well and good, but if you’re in training or you may opt to go to another jurisdiction, it’s good to know what the individual rules and nuances are.
And so in Georgia, pretty standard to have a restrictive covenant, in my case was 15 miles from both locations that they had for two years. And so, we’ve spoken to this at meetings about reasonableness of these restrictions and scope, right? And so it’s easy, even in my shoes, being a trained lawyer and having gone through all this crazy education I have to just be eager to please and be a yes man and not get in the way of things. And so, it was the best group practice opportunity I had and I looked all over the country and it was landing on my feet right here in Atlanta. I wasn’t going to have to move that far to get to my new job. It clicked a lot of buttons for the family, good schools, and so there’s a lot of impetus and pressure to just say yeah, and not push too hard on it.
And [00:20:00] I did bring it up actually during negotiations. I did have an attorney who helped the previous guy who was in my slot, who left the practice for different reasons, but counsel me on how to negotiate this myself. So I didn’t go unprepared. I knew what questions to ask. But it’s tough. It’s a tough dynamic when you’re working with three other older surgeons who’ve been around and they’re the owners and you’re not, and you’re trying to keep people happy and do a good job and set a good tone as a doctor. So that’s a tough balance to strike because it’s a business thing and it’s a doctor thing. It’s a little different than a more traditional brick and mortar business.
So anyways, one thing I had not considered negotiating harder was the duration of it. Two years didn’t seem like a long time considering how much training I had done. And 15 miles didn’t seem all that crazy either because Georgia is a big place. Atlanta’s a huge place. It’s a major market. What’s a big deal of setting up shop further down the – [00:21:00] not down the street so to speak, but a couple towns over? Well, when I ended up deciding to go solo; that became an issue because even a hospital I was interested in taking paid call for and doing reconstruction, the one that I’ve told you some of these cases that I do was about 14 and a half miles, and my home is kind of in between where my old job is and that hospital is. And so, I was lucky enough to kind of negotiate an exception to my non-compete on the way out. And I used a lawyer friend of mine actually met him through the orchestra board and he helped me out.
So I was able to create a little erode, a little bit of that non-compete, but hard to fight something like that legally with the expense and manage the overhead and startup expense of a new business, so you have to pick your battles. So, I set up shop about 20 miles in a community called Johns Creek, where my parents ended up retiring. There’s an Emory Affiliate Hospital there, and that was a setup that worked [00:22:00] well for me for those two years. And the tricky part is, and this is where I still am kicking myself is, during covid a lot of people, y’all may even know this in your communities about commercial real estate.
Lots of people are now remote working still people are being asked to return to work and they don’t want to. Medicine’s one of those fields where you kind of have to touch patients and pull drains and sutures out. But that made the medical space challenging because people were wanting to do more telehealth. So these commercial medical building places really wanted longer term commitments. There’s a lot of uncertainty. So what used to be a traditional five year kind of deal became seven. Take it or leave it, or even eight. So I took a seven year lease thinking, okay, I’ll just ride this seven years out. But when you got kids, I have a high schooler now, I have a middle schooler now and extra-curricular and unless you can pay for a nanny and all these other things, my wife or myself [00:23:00] is chauffeuring them around after school.
We still structure the schedule nine to four every day around their schedule. It’s very hard when you’re dealing with Atlanta traffic for an hour just to travel those 15 or 20 miles. It’s a gauntlet. No way to cut it. You take a beltway highway, you take local roads. So my wife and I, after two years, she was really getting at me and I agreed that lifestyle-wise, we should try to sublease this. So we struggled a lot, almost a full year to finally get a doc to sublease our place. Sounds like a happy story. Figured it out, and then I got a eight year lease here close to home, and now my commute’s nothing. But now I’m a landlord. I’m an intermediate landlord and I get squeezed a lot between my real landlord, the medical office building, and my subtenant who sometimes wants to follow things differently in the Black-letter contract than maybe we interpret.
And so we had disputes, we almost got to [00:24:00] small claims and we walked off that ledge with some negotiating, but that’s all stressful. You’re trying to take care of patients and run your own business and now all of a sudden you’re a pseudo landlord and you’re getting squeezed from your real landlord. So those are kind of the unintended consequences that I didn’t realize can snowball like butterfly effects from as simple a thing as a, why not sign up for a two year 15 mile restrictive covenant? And I think what really got me to is the 15 mile from both locations. It wasn’t like an average location based off the map. I did the GPS map thing, and when I was picking where to go I was like, which is the richest community for a plastic surgeon that won’t have me boxed out of north Atlanta or the Atlanta region.
And so, it is a kind of process elimination. Also, you’re entering another viper’s pit of competition. Atlanta’s no exception to LA or Chicago or Dallas or New York. So I think those are some of the hit points I think that I’ve learned [00:25:00] the hard way. It’s made me a tougher businessman for sure. And I have an econ degree, but I can tell you, whatever they teach you in theory that helps you get that job, McKinsey Consulting job or Goldman Sachs job and spreadsheets is a lot different than boots on the ground, running a mom and pop entrepreneurship with all that comes with it.
Michael: I don’t think there’s a better example of unintended consequence than if you sign a non-compete you’ll become a landlord.
Brad: Well, I mean, we’re almost out of time, but I want to get one more question for you. Basically, if there’s one big takeaway that you would have our audience think about from your story, what is some guidance that you can give them in this last minute that we have together?
Nirav: Yeah. The one obvious one is don’t sign one if you can get them to back off. Or at the very least, if you’re in a community or jurisdiction, y’all can talk about it better than I can, at least back down the restraints. Maybe the mileage, maybe the timeframe. And your best negotiating [00:26:00] position, especially for new docs who haven’t gotten their first job yet, is just walk. I mean, everybody’s super well trained and qualified to get this far, you can always just get another job. Or if you have the so-called
“Cojones” to do it or finances to do it or support to do it, maybe just hang the shingle upright. But the trick was getting your board certification when you have a lower volume solo practice building all that up, that’s stressing out a lot of colleagues that take longer to get to that point. So I think in hindsight, joining a group was good because it got me boarded as quickly as I human possibly could. Family support – I had the finances to be able to do this, and I have marital support as well, so I’m lucky in that regard. But you’re going to hit some landmines and just, you have to roll with the punches and strategize a way around it. But if you can just, prevention is cure in medicine, we say that a lot. This is one of those prevention is cure. Just don’t sign one if you can help it and have a better opportunity as leverage.
Michael: As always. I love hearing your story. It’s so insightful and [00:27:00] I think will be helpful to our audience. Thank you for joining us on the Legal 123s with ByrdAdatto. We’re grateful for our relationship with you. And what we’ll do next is we’ll go to break, and then Brad and I’ll come back for a super quick wrap up. Appreciate you joining us.
Nirav: Thanks y’all for having me once again. It’s great to see you guys.
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Brad: Welcome back to Legal123s with ByrdAdatto. I’m your host, Brad Adatto, with my co-host, Michael Bird. Now Michael, this season our [00:28:00] theme is Unintended Consequences, and we just had a great conversation with Dr. Nirav Patel who owns his own plastic surgery and he’s actually attorney and he had a great story, and maybe you can give like one big takeaway you had from today’s conversations.
Michael: We’ve talked about non-competes in several episodes over the years. One of the things he said that I don’t think we’ve focused on before is that he was able to negotiate terms when he left to get an exception so that he could operate at that hospital. A lot of people look at a non-compete situation as a binary thing. I’m either going to move outside the non-compete or I’m going to dare them to come after me and I’m going to violate it. And there is an opportunity oftentimes to negotiate, but as you often say, the way you leave really impacts the ability to do that.
Brad: [00:29:00] It’s true. Well, Michael, that’s all the time we have today, but next Wednesday we’ll continue this journey on Unintended Consequences when we have a series regular, Jay Reyero returns, the story involving hot topic right now, which is weight loss. Thanks again for joining us today. And remember, if you like this episode, please subscribe, make sure to give us a five star rating and share with your friends.
Michael: You can also sign up for the ByrdAdatto newsletter by going to our website at byrdadatto.com.
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