Brovont v. KS-I Med. Servs., P.A., WD 82544

• Court: Court of Appeal of Missouri (US)
• Writing for the Court: Gary D. Witt, Judge
• Citation: 622 S.W.3d 671
• Parties: Raymond BROVONT, M.D., Appellant-Respondent, v. KS-I MEDICAL SERVICES, P.A. and MO-I Medical Services, LLC, Respondent-Appellants.
• Decision Date: 13 October 2020
• Docket Number: WD 82544,C/w WD 82552

622 S.W.3d 671

Raymond BROVONT, M.D., Appellant-Respondent,
v.
KS-I MEDICAL SERVICES, P.A. and MO-I Medical Services, LLC, Respondent-Appellants.

WD 82544
C/w WD 82552

Missouri Court of Appeals, Western District.

OPINION FILED: October 13, 2020
Motion for Rehearing and/or Transfer to Supreme Court Denied November 24, 2020
Application for Transfer Denied March 2, 2021

Michael S. Ketchmark and Scott A. McCreight, Leawood, KS, for appellant-respondent.

Kyle B. Russell, Overland Park, KS and William E. Quirk, Kansas City, MO, for respondent-appellants.

Before Division Three: Gary D. Witt, Presiding Judge, Lisa White Hardwick, Judge and Thomas N. Chapman, Judge

Gary D. Witt, Judge

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KS-I Medical Services, P.A. ("KS-I"), a Kansas corporation, and MO-I Medical Services, LLC ("MO-I"), a Missouri limited liability company, appeal from the October 5, 2018 judgment entered by the Circuit Court of Jackson County, Missouri ("trial court"),¹ after a jury verdict in favor of Raymond Brovont, M.D. ("Dr. Brovont") on his claim for damages for wrongful discharge in violation of public policy. Dr. Brovont timely cross-appealed from the trial court's judgment. This court consolidated the two appeals under case number WD82544, and for purposes of Rule 84.04(i),² Dr. Brovont, the plaintiff below, was deemed the appellant, and KS-I and MO-I, the defendants below, were deemed the respondents. The trial court's judgment is affirmed in part, reversed in part, and modified according to this court's rulings pursuant to Rule 84.14.

Factual and Procedural History³

HCA, Inc. ("HCA") contracted with EmCare Holdings, Inc. ("EmCare") to provide physician staffing at hospitals that HCA owned and operated in the Kansas City area, in both Missouri and Kansas. EmCare, publicly traded on the NYSE, is the nation's largest physician management company, with nearly 16,000 clinicians providing patient care in more than 4,600 hospitals and other healthcare facilities nationwide.

Because regulations prohibit publicly traded companies or for-profit corporations from owning physician practice groups, EmCare's business model is to create a separate subsidiary legal entity for each state and in some circumstances for each location at which it supplies physicians to provide emergency medical services. KS-I and MO-I are examples of such subsidiary legal entities. EmCare then makes a physician the owner of these subsidiaries to comply with the regulations, which prohibit a publicly traded company from providing medical services. Dr. Brovont was, at the relevant times of this lawsuit, employed by two of these subsidiaries, KS-I and MO-I.

EmCare has hundreds, if not thousands, of such subsidiaries across the United States. Gregory Byrne, M.D., a Dallas-based physician employed by EmCare, is the sole owner of KS-I. At any given period of time he also owns between 275 and 300 other EmCare subsidiaries in at least 20 different states. The exact number of EmCare subsidiaries he owns changes every month, and he does not keep track of them or take any management role in any of them. The number does not matter to him because all the profits of the subsidiaries flow to EmCare. The owners of the subsidiaries are simply paid a salary by EmCare. The payroll, human resources,

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legal, physician recruiting, and operation of each subsidiary was controlled by EmCare, and they would forward operational documents for the physician "owner" of the subsidiary to sign.

Though EmCare is careful to maintain corporate formalities between itself and its various subsidiaries, the subsidiaries are managed and operated by persons who are agents of the subsidiaries but who are also directly connected to the parent corporation, EmCare. Dr. Patrick McHugh ("Dr. McHugh") was, at all relevant times, both the Executive Vice President of EmCare and directly responsible for all hospital subsidiary contracts in the Kansas City metropolitan area on both sides of the state line, including MO-I and KS-I. Dr. McHugh, as an agent of both companies, had complete authority to hire or terminate a physician and directly influence the ability of any such physician to work for MO-I or KS-I or any other hospitals in the Kansas City area that had contracts with one of EmCare's subsidiaries.

Dr. Brovont specialized in the practice of emergency medicine. In 2010, when he came to the Kansas City area, he signed a contract with MO-I to work in the emergency department at Centerpoint Medical Center in Independence, Missouri ("Centerpoint"). In 2012, Dr. Brovont was asked if he would be willing to transfer to Overland Park Regional Medical Center in Overland Park, Kansas ("Overland Park"). Dr. Brovont agreed and signed a contract with KS-I to work as Medical Director of Overland Park's emergency department, in charge of the twenty-two physicians who worked in the emergency department at Overland Park as well as all of the emergency department's support staff. One of his duties as Medical Director was to act as the physician liaison between the emergency medicine staff and the rest of the hospital system. He retained his privileges to practice at Centerpoint and also kept his medical license active in Missouri as well as a medical malpractice insurance policy for his work in Missouri. He continued to cover as many clinical shifts at Centerpoint working under the MO-I contract as he could, given his schedule, because he enjoyed working there and supporting that hospital. He also wanted to make sure that if he ever wanted to come back to Centerpoint for any reason he would have that option.

Since 1993, Overland Park had a policy in place setting forth the guidelines for the initiation, management, and evaluation of a Code Blue procedure and for treatment of the patient. At Overland Park, a Code Blue was an urgent distress call, when staff discovered a patient who had stopped breathing or whose heart had stopped functioning, to bring necessary assets to the location to help resuscitate the patient. While Dr. Brovont was the Medical Director of the emergency department at Overland Park, the only doctor assigned to the Code Blue team under the policy was the emergency room doctor. However, for eighteen hours out of each day, Overland Park normally only had one doctor in the emergency room. Between the hours of 3:00 p.m. and 5:00 p.m. and then between 9:00 p.m. and 1:00 a.m. there would usually be two physicians covering the emergency department. All other times of the day there was only one doctor in that department, although there was ancillary help from the nursing staff and physician assistants.

During 2013 and 2014, Overland Park developed a $120 million extensive expansion project that essentially doubled the size of the hospital, tripled the size of the footprint of the emergency department, increased the number of beds in the emergency department from approximately 12 to 24, and added 105 beds to the hospital

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for a total of 343 licensed beds. The hospital also added a new pediatric emergency room separate from the traditional emergency room.

One of Dr. Brovont's responsibilities as the Medical Director was to review the Code Blue policies and determine their appropriateness. The emergency room physicians expressed concerns to Dr. Brovont that the increased number of patients in the hospital as a whole, the increased size of the emergency department specifically, and the number of patients requiring emergent treatment, all combined with the requirement that doctors leave the emergency department for Code Blue calls in other parts of the hospital to result in the endangerment of patients. Because there was single coverage in the emergency department eighteen hours of each day, whenever the covering physician had to leave for Code Blues in other parts of the hospital, which occurred quite frequently, the emergency room was left unstaffed by a physician. Dr. Brovont represented other physicians in the group, who came to him with their concerns about the requirement that they leave the emergency department for Code Blues, which essentially required them to physically be in potentially three places—in the main emergency room, somewhere else in the 343-bed hospital, and in the pediatric emergency room—leaving the emergency department unattended by a doctor. The physicians felt the Code Blue practice needed to change, particularly in light of the hospital expansion. Dr. Brovont brought these concerns to the attention of the hospital administration and KS-1, expressing concerns for patient safety with the current Code Blue policy.

In December 2015, Dr. McHugh asked Dr. Brovont if he would be willing to consider the site Medical Director position at Centerpoint because of his great success with the team-building experience at Overland Park, accomplished while opening up two freestanding emergency departments and transitioning to a much larger footprint in the new emergency department at the main campus. Dr. Brovont declined the Centerpoint opportunity, wanting to continue developing his position at Overland Park and building team momentum, as well as dealing with the Code Blue policy concerns at Overland Park. The issue regarding emergency department physician staffing did not exist at Centerpoint, since under the Centerpoint...