Productivity Bonuses, a Noncompete, and 'Specialist' Advertising at a Retail Chain

The advertisements are likely misleading. 'Board Certified' should be used only if the optometrist actually holds a certification from a recognized board, and 'Glaucoma Specialist' implies specialized credentials or practice limits that a general licensee may not have. 'Indiana Eye Specialists' can imply a multi-specialty group or a specialty practice that does not exist. Indiana Board of Optometry rules prohibit false, deceptive, or misleading advertising, and the FTC Act separately prohibits deceptive commercial statements. The optometrist should not sign an attestation that the advertising is accurate if it is not. The optometrist should demand that the chain remove or correct the claims, document the request, and consult counsel. If the chain refuses, the optometrist should consider whether continued employment requires participation in misleading advertising. The optometrist may not use the chain's advertising to imply credentials he or she does not hold. The accuracy attestation should be limited to advertising the optometrist has reviewed and verified.

A bonus tied to contact lens sales, a monthly sales quota, and a six-patient-per-hour schedule create a financial incentive to recommend products and to shorten examinations. The optometrist's duty is to the patient's clinical needs, not to the chain's sales target. If the schedule or quota causes the optometrist to omit dilation, fail to document, or prescribe lenses that are not indicated, the optometrist bears professional responsibility. A non-optometrist manager may set business terms, but the manager may not direct clinical judgment, such as which laboratory is clinically appropriate or how much examination time a condition requires. The optometrist should insist on written clinical protocols and authority to extend visits when needed. The noncompete and records-ownership clauses should be reviewed by counsel; a three-year, 25-mile restriction may be scrutinized for reasonableness, and the optometrist must still comply with patient-choice and record-transfer rules. The optometrist should not abandon patients or use records for solicitation in violation of the agreement or privacy law.

The optometrist should have the agreement reviewed by Indiana employment counsel before signing. The review should focus on the noncompete's duration and geography, the records-ownership clause, termination provisions, malpractice insurance, and whether the chain controls clinical judgment. The optometrist should negotiate written protections: authority to schedule adequate time, freedom to recommend lenses based on clinical findings, access to records for continuity of care, and a process for correcting misleading advertising. The optometrist should request copies of all advertisements and verify every claim. The attestation should be revised to state only what the optometrist has personally reviewed and can verify. The optometrist should document concerns in writing and keep copies. If the chain will not correct false advertising or permit independent clinical judgment, the optometrist should decline the position or the attestation. The governing principle is that business arrangements may not override the optometrist's independent professional obligation to the patient.