Asturi was a newly graduated dentist who worked as an associate dentist with Richards at Richards' dental office. Richards had been a dentist for nearly twenty years and had a large patient base. Asturi was responsible for attracting new patients to the practice. Richards did not pay Asturi a salary, rather, Asturi paid a percentage of his gross billings to the practice's management company.
Asturi felt that he was paying over too much of his profit and decided to leave the arrangement with Richards and set up his own office. He did not give Richards any notice before he left to open his own practice directly across the street. Asturi also photocopied his patients' records and sent them announcements of his new location.
Richards was very upset by Asturi's actions and decided to take legal action. He claimed that Asturi was not entitled to set up a competing dental practice in such close proximity to his own and that Asturi had no right to solicit patients or to misappropriate patient records. Discuss the rights and liabilities of the parties involved and render a decision.
C.C.E.L. 160.
The initial thrust of this case is to determine whether Asturi is an employee or an independent contractor. His responsibilities toward Richards will be vastly different depending on the outcome of that determination.
After applying the fourfold and organization tests to this arrangement the outcome is not absolutely clear. However, it resembles more the independent practitioner than employee. The control over Asturi by Richards appears to be limited. The ownership of tools is unclear, however the chance of profit and risk of loss seem to lie squarely with Asturi. As he is not paid a salary as an employee would be, he bears considerable risk for both profit and loss as an independent practitioner would. His work does not exactly resemble that of an independent contractor in that his services are not accessory to the business of Richards although the initiative to do the work and the manner in which it is done are largely within Asturi's control.
Concluding then that Asturi in not an employee, he does not owe that same duty of care to Richards. He has his own practice which he is entitled to locate where he wishes. There is no evidence of a restrictive covenant in any contract which may exist between Asturi and Richards. Asturi is also entitled to take his patients with him and to copy their records. However, whether Asturi is an employee or an independent practitioner does not relieve him of the obligation to provide sufficient and reasonable notice to Richards of his intention to leave the arrangement and set up his own practice elsewhere.
At trial the leaving dentist was found not to be an employee and was free to set up the separate practice in close proximity and to take his patients with him. He was found liable for damages for failing to give reasonable notice which was determined by the court as six weeks.

Question

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The Answer of Asturi was a newly graduated dentist who worked as an associate dentist with Richards at Richards' dental office. Richards had been a dentist for nearly twenty years and had a large patient base. Asturi was responsible for attracting new patients to the practice. Richards did not pay Asturi a salary, rather, Asturi paid a percentage of his gross billings to the practice's management company.
Asturi felt that he was paying over too much of his profit and decided to leave the arrangement with Richards and set up his own office. He did not give Richards any notice before he left to open his own practice directly across the street. Asturi also photocopied his patients' records and sent them announcements of his new location.
Richards was very upset by Asturi's actions and decided to take legal action. He claimed that Asturi was not entitled to set up a competing dental practice in such close proximity to his own and that Asturi had no right to solicit patients or to misappropriate patient records. Discuss the rights and liabilities of the parties involved and render a decision.
C.C.E.L. 160.
The initial thrust of this case is to determine whether Asturi is an employee or an independent contractor. His responsibilities toward Richards will be vastly different depending on the outcome of that determination.
After applying the fourfold and organization tests to this arrangement the outcome is not absolutely clear. However, it resembles more the independent practitioner than employee. The control over Asturi by Richards appears to be limited. The ownership of tools is unclear, however the chance of profit and risk of loss seem to lie squarely with Asturi. As he is not paid a salary as an employee would be, he bears considerable risk for both profit and loss as an independent practitioner would. His work does not exactly resemble that of an independent contractor in that his services are not accessory to the business of Richards although the initiative to do the work and the manner in which it is done are largely within Asturi's control.
Concluding then that Asturi in not an employee, he does not owe that same duty of care to Richards. He has his own practice which he is entitled to locate where he wishes. There is no evidence of a restrictive covenant in any contract which may exist between Asturi and Richards. Asturi is also entitled to take his patients with him and to copy their records. However, whether Asturi is an employee or an independent practitioner does not relieve him of the obligation to provide sufficient and reasonable notice to Richards of his intention to leave the arrangement and set up his own practice elsewhere.
At trial the leaving dentist was found not to be an employee and was free to set up the separate practice in close proximity and to take his patients with him. He was found liable for damages for failing to give reasonable notice which was determined by the court as six weeks.

Asturi Was a Newly Graduated Dentist Who Worked as an Associate