Aiken v. Business and Industry Health Group, Inc.

• Decision Date: 18 May 1995
• Docket Number: No. 94-2199-JWL.,94-2199-JWL.
• Citation: 886 F. Supp. 1565
• Parties: John E. AIKEN, Plaintiff, v. The BUSINESS AND INDUSTRY HEALTH GROUP, INC. (now known as Employer Health Services, Inc., a Missouri corporation), Defendant.
• Court: U.S. District Court — District of Kansas

886 F. Supp. 1565

John E. AIKEN, Plaintiff, v. The BUSINESS AND INDUSTRY HEALTH GROUP, INC. (now known as Employer Health Services, Inc., a Missouri corporation), Defendant.

No. 94-2199-JWL.

United States District Court, D. Kansas.

May 18, 1995.

COPYRIGHT MATERIAL OMITTED

Roger D. Stanton, Daniel D. Crabtree, Stinson, Mag & Fizzell, Overland Park, KS, for plaintiff.

Nancy M. Landis, Michaela M. Warden, Spencer, Fane, Britt & Browne, Overland Park, KS, for defendant.

MEMORANDUM AND ORDER

LUNGSTRUM, District Judge.

I. INTRODUCTION

This action arises out of plaintiff's discharge from his employment with the Business and Industry Health Group (BIHG), an operating division of defendant Employer Health Services, Inc. The plaintiff, John E. Aiken, M.D., contends that the defendant wrongfully discharged him in violation of public policy and, in addition, that his termination amounted to a breach of a covenant of good faith and fair dealing implied in the parties' employment contract. This matter is currently before the court on defendant's motion for summary judgment and on plaintiff's motion for an order permitting the jury to determine the amount of punitive damages. For the reasons set forth fully below, defendant's motion for summary judgment is granted and plaintiff's motion for an order permitting the jury to determine the amount of punitive damages is denied as moot.

II. FACTS

The following facts are uncontroverted or are facts considered in the light most favorable to the plaintiff for purposes of this motion. Plaintiff, a medical doctor, was employed by BIHG from September 15, 1985 through January 31, 1994 as an occupational medicine physician.¹ Plaintiff worked at a number of defendant's clinics in Kansas until July of 1993 when he was placed on "float status" and was required to rotate through BIHG's clinics in both Kansas and Missouri.

Eugene Welter, M.D., was BIHG's Vice President of Medical Affairs from 1983 through his retirement on August 31, 1994. During his tenure, Dr. Welter was ultimately responsible for the standard of medical care practiced at BIHG's clinics, including procurement of competent physicians, their periodic review, and ultimately a recommendation for termination to the president of BIHG, if their performance was unacceptable to him. Dr. Welter had final responsibility for and review of all medical decisions pertaining to patient care.

From 1991 through his termination, Dr. Welter gave plaintiff several written memoranda regarding his performance. During the twelve-month period prior to his termination, BIHG received more than eight separate complaints regarding plaintiff.

In July of 1993, Peggy Walker, President of BIHG, and Dr. Welter sent plaintiff a memo which stated the following:

As you are aware, we have had several discussions with you regarding company complaints due to loss time.

This memo is to notify you of a move from your permanent position at the Indian Springs clinic to a float physician status.

This move is being done in response to numerous company complaints which we have discussed with you regarding excessive time off. In a recent time off report you had 313 lost time days. This is far in excess of any of our system physicians. In addition, as we have begun to discuss the move to Kansas Avenue with our key Fairfax employers many are insistent that you not be involved with their employees. Given the importance, company wide, of the new Kansas Avenue facility meeting aggressive goals, we feel we cannot jeopardize the account base. We feel the best option at this time is to move you into a float physician status.

Dr. Aiken, we urge you to review your current practices in regard to time off. As you have been counseled on numerous occasions, our clients expect quality medical service but also an understanding of their work site and ability to accommodate light duty and restrictions you may medically place on an individual.

We will continue to monitor your cases. If continued complaints are received we will have no alternative but to exercise the termination notice in your contract. We are confident you will be able to make this adjustment and offer any assistance in helping you determine the needs of our client companies.

On August 26, 1993, Dr. Welter reviewed a chart of a patient seen by plaintiff the day before. The patient did not have a new injury, but was complaining about an injury which had occurred a year earlier. Since the patient had been injured, she had been seen by a number of specialists whose reports were contained in BIHG's file. Those physicians had returned her to work with certain restrictions sometime prior to her visit with plaintiff. Plaintiff, however, had written a permanent restriction, even though this patient had no new injury. Dr. Welter instructed plaintiff to delete the permanent restriction and the medication he prescribed and counseled plaintiff about perceived problems with the approach plaintiff had taken with this particular patient. Plaintiff claims his differences with Dr. Welter over this patient were of medical judgment: he believed the patient was more disabled than Dr. Welter did.

Shortly thereafter, Dr. Welter verbally warned plaintiff that he would be terminated if BIHG continued to receive complaints regarding his performance.

On October 20, 1993, Dr. Welter talked to plaintiff about a complaint that he had received that plaintiff and another physician had left one of defendant's clinics while a patient was waiting to be seen. Plaintiff informed Dr. Welter that he believed that since he was on "float" status, it was the permanent physician's responsibility to stay and care for the patient.

On November 2, 1993, BIHG invoked the ninety-day notice provision in plaintiff's Employment Agreement.² Dr. Welter informed plaintiff that BIHG was terminating his employment effective January 31, 1994.

Plaintiff testified that he was criticized by BIHG because he refused to violate statutes, regulations and ethical rules having to do with "undue influence" on his judgment. It is his belief that defendant was forcing him to violate state statutes and regulations which indicate that a physician should be able to practice without undue influence on his or her judgment. He also stated that he felt he was being forced to violate that part of the Hippocratic Oath which states that a physician "shall fulfill this Oath to the best of his or her ability and judgment." He testified that he was not given specific criticisms in this regard, but that he was told he "put too many people off work."

Plaintiff admits that he and Dr. Welter had a disagreement, a difference of medical opinion or judgment, regarding eight of twelve school bus drivers that plaintiff had kept off work. The two physicians had discussions about the school bus drivers more than one time. Plaintiff explained to Dr. Welter that he had put these patients off work for good reason, that they were hurt, they were in pain, they were driving a public conveyance and they had a responsibility of the conveyance and all the school children on the bus. Despite the fact that Dr. Welter expressed disagreement with plaintiff, plaintiff did not alter his treatment or diagnoses of these patients.

Other than the above-mentioned discussion, plaintiff did not directly contact Dr. Welter and stand up for or further explain his belief that defendant was exerting undue influence upon him. He stated that he knew if he disagreed with Dr. Welter, there was no recourse, and that Dr. Welter would not change his mind. Plaintiff testified as follows:

I asked him what I could do, you know, for future reference in cases where I was considering putting people off work and he said, "Why John, simply mark up the ability slip with a lot of limitations on it." And he said, "No company will put anybody back to work with all those limitations because they don't have a job for them so they'll let them go home." Well it didn't work that way with some companies.

When asked whether Dr. Welter directed him not to keep people off work, plaintiff stated, "In so many words."

Plaintiff never followed any directions from Dr. Welter or anyone else at BIHG that differed from what he personally believed.

III. SUMMARY JUDGMENT STANDARD

When considering a motion for summary judgment, the court must examine all the evidence in the light most favorable to the nonmoving party. Langley v. Adams County, Colorado, 987 F.2d 1473, 1476 (10th Cir.1993). A moving party who bears the burden of proof at trial is entitled to summary judgment only when the evidence indicates that no genuine issue of material fact exists. Fed.R.Civ.P. 56(c); Anthony v. United States, 987 F.2d 670, 672 (10th Cir.1993). If the moving party does not bear the burden of proof at trial, it must show "that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986).

Once the movant meets these requirements, the burden shifts to the party resisting the motion to "set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 2514, 91 L.Ed.2d 202 (1986). The nonmovant may not merely rest on the pleadings to meet this burden. Id. Genuine factual issues must exist that "can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Id. at 250; Tersiner v. Union Pacific R.R., 740 F.Supp. 1519, 1522-23 (D.Kan.1990). More than a "disfavored procedural shortcut," summary judgment is an important procedure "designed `to secure the just, speedy and inexpensive determination of every action.' Fed. R.Civ.P. 1." Celotex, 477 U.S. at 327, 106 S.Ct. at 2555.

IV. DISCUSSION

Plaintiff asserts two claims. First, that defendant terminated him because he refused to violate a clear mandate of public policy as recognized by law and...