Harper v. Vohra Wound Physicians of NY, PLLC, 031720 NCCA, COA18-355

Docket Nº:COA18-355
Opinion Judge:MURPHY, JUDGE
Party Name:JAMES GARRETT HARPER, M.D., Plaintiff, v. VOHRA WOUND PHYSICIANS OF NY, PLLC; VOHRA WOUND PHYSICIANS MANAGEMENT, LLC; VOHRA HEALTH SERVICES, PA; JAPA VOLCHOK, D.O.; and AMEET VOHRA, M.D., Defendants.
Attorney:Brown, Faucher, Peraldo & Benson, PLLC, by Drew Brown, for plaintiff-appellee. Smith Moore Leatherwood LLP, by Matthew Nis Leerberg, Robert H. Edmunds, Jr., and Kip D. Nelson, for defendants-appellants.
Judge Panel:Judges STROUD and DIETZ concur.
Case Date:March 17, 2020
Court:Court of Appeals of North Carolina
 
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JAMES GARRETT HARPER, M.D., Plaintiff,

v.

VOHRA WOUND PHYSICIANS OF NY, PLLC; VOHRA WOUND PHYSICIANS MANAGEMENT, LLC; VOHRA HEALTH SERVICES, PA; JAPA VOLCHOK, D.O.; and AMEET VOHRA, M.D., Defendants.

No. COA18-355

Court of Appeals of North Carolina

March 17, 2020

Heard in the Court of Appeals 28 November 2018.

Appeal by Defendants from Order and Judgment entered 22 June 2017 and Order Denying Defendants' Post-Judgment Motions entered 18 July 2017 by Judge Eric L. Levinson in Mecklenburg County No. 15CVS22885 Superior Court.

Brown, Faucher, Peraldo & Benson, PLLC, by Drew Brown, for plaintiff-appellee.

Smith Moore Leatherwood LLP, by Matthew Nis Leerberg, Robert H. Edmunds, Jr., and Kip D. Nelson, for defendants-appellants.

MURPHY, JUDGE

On appeal, Defendant contends the trial court erred by: (1) denying its motion for judgment notwithstanding the verdict on its breach of contract counterclaim; (2) permitting Plaintiff to file an untimely reply to Defendant's amended counterclaims; and (3) awarding liquidated damages based on gross pay rather than net pay. For the reasons discussed below, we disagree and affirm.

BACKGROUND

Dr. James Garrett Harper ("Dr. Harper") began practicing medicine as a plastic surgeon in Charlotte in 2012. The practice that employed Dr. Harper did not accept Medicare or Medicaid due to the effect on "billing and reimbursements from other insurance companies" and its ability to "get paid more for a [given] surgery" if Medicaid and Medicare were not accepted. As an employee of the practice, Dr. Harper completed a "Medicare Opt-Out Affidavit." The Opt-Out Affidavit allowed Dr. Harper to "provide services to Medicare beneficiaries only through private contracts that meet the criteria of §40.8 for services that, but for their provision under a private contract, would have been Medicare-covered services." However, the Opt-Out Affidavit prevented Dr. Harper from submitting "a claim to Medicare for any service furnished to a Medicare beneficiary during the opt-out period" and receiving "direct or indirect Medicare payment for services . . . furnish[ed] to Medicare beneficiaries with whom [Dr. Harper] privately contracted[.]" Dr. Harper completed his most recent Opt-Out Affidavit in 2014, and the opt-out period was two years.

Dr. Harper ended his employment with this practice in 2015. While litigating the enforceability of his non-compete agreement with the practice, Dr. Harper decided to apply for a position with Vohra Wound Physicians of NY ("Vohra") until he could return to the field of plastic surgery. Vohra provides wound management services primarily to elderly patients in nursing homes in various states, including North Carolina. In his role with Vohra, Dr. Harper would travel around the state, primarily to "understaffed and undermanned" nursing care facilities.

On his application to Vohra, Dr. Harper was asked to "[d]escribe any past/pending disciplinary/restriction in relation to Medicare/Medicaid." Dr. Harper answered, "None, but I did not accept Medicaid/Medicare at my last job." After multiple subsequent rounds of interviews, Dr. Harper was offered the physician position with Vohra, and the parties entered into an "Employment Agreement" in June 2015. Under "Article II: Duties and Responsibilities" of the employment agreement, the parties agreed to the following provision: 2.5 General Professional Qualifications and Obligations. At all times during the term of this Agreement, EMPLOYEE:

(b) shall be qualified to participate and shall participate in Medicare, Medicaid and other state medical assistance and federal programs, and not be under current exclusion, debarment or sanction by any state or federal health care program, including Medicare and Medicaid;

At the start of his employment, Dr. Harper completed a "Medicare Enrollment Application" and "Reassignment of Medicare Benefits" to Vohra and made Vohra his surrogate for the Medicare enrollment process. Yet, approximately twelve days later, Vohra was informed that Dr. Harper's Medicare enrollment application was denied. The denial cited Dr. Harper's 2014 Medicare Opt-Out Affidavit, stating: "The provider has an active opt-out affidavit effective until 07/23/2016. The provider cannot enroll in Medicare until after this date." The Opt-Out Affidavit could not be withdrawn.

The Vice-President of Vohra Wound Physicians Management, LLC called Dr. Harper upon learning of his ineligibility. Dr. Harper "stated that in his previous job there was no Medicare that was accepted by the practice, they had opted out of Medicare." Dr. Harper stopped seeing patients, and Vohra decided to "stop all processes related to Dr. Harper[, ]" and withhold a portion of Dr. Harper's October 2015 wages for several weeks while it was "doing an investigation[.]" On 30 November 2015, Vohra terminated Dr. Harper's employment[1] and requested that Dr. Harper reimburse the practice for $88, 133.43 it claimed the practice incurred "[a]s a result of [Dr. Harper's] failure to disclose this critical information[.]"

Dr. Harper filed suit against Vohra2, alleging, among other claims, a violation of the North Carolina Wage and Hour Act.3 Vohra subsequently asserted counterclaims for fraud and breach of contract. After a trial in Mecklenburg County Superior Court, the jury returned a verdict finding that $29, 035.50 in wages was owed to Dr. Harper. Regarding Vohra's counterclaims, the jury found that Dr. Harper had not breached his contract and that Vohra was not damaged by any fraud of Dr. Harper. Vohra filed post-judgment motions requesting that the trial court enter a directed verdict on its breach of contract counterclaim and amend the damages award. The trial court denied these motions. Vohra timely appeals.

ANALYSIS

A. Breach of Contract Counterclaim

Vohra first argues the trial court erred in denying its motion for judgment notwithstanding the verdict on the breach of contract counterclaim. We disagree.

We have described our review of trial court rulings on motions for judgment notwithstanding the verdict: A motion for a judgment notwithstanding the verdict is, fundamentally, the renewal of an earlier motion for a directed verdict. When a motion for judgment notwithstanding the verdict is brought, the issue is whether the evidence is sufficient to take the case to the jury and to support a verdict for the non-moving party. The evidence is to be considered in the light most favorable to the non-moving party, and the non-moving party is entitled to all reasonable inferences that can be drawn from that evidence.

Ridley v. Wendel, 251 N.C.App. 452, 458, 795 S.E.2d 807, 812-13 (2016) (citations, alterations, and internal quotation marks omitted). This is a high standard for the party moving for judgment notwithstanding the verdict, and the trial court is required to deny the motion where the verdict for the non-moving party is supported by "more than a scintilla of evidence . . . ." Shelton v...

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