Hennessey v. Mid-Michigan Ear, Nose & Throat, P.C.
| Docket Number | 1:21-cv-301 |
| Decision Date | 21 July 2023 |
| Parties | PATRICK HENNESSEY, Plaintiff, v. MID-MICHIGAN EAR, NOSE AND THROAT P.C., Defendant. |
| Court | U.S. District Court — Western District of Michigan |
Plaintiff Dr. Patrick Hennessey brings this action against Defendant Mid-Michigan Ear, Nose and Throat P.C. (“MMENT”). Hennessey alleges that MMENT breached an employment agreement and shareholder agreement between the two parties. He further alleges that it retaliated against him in violation of the False Claims Act (“FCA”). Before the Court is MMENT's motion for partial summary judgment (ECF No. 114) on a “notice-pled” disability retaliation claim as well as MMENT's motion for partial summary judgment (ECF No. 123) on the FCA retaliation claim. For the reasons stated below, the Court will deny both motions, the latter without prejudice.
MMENT is a physician-owned private practice of otolaryngologists and audiologists in the Lansing, Michigan area. From May 2013 until January 2021, Hennessey practiced as an otolaryngologist at MMENT pursuant to a written employment agreement (“the Employment Agreement”). (Emp Agreement, ECF No. 114-10, PageID.2049.) The Employment Agreement includes, among other things, addendums outlining Hennessey's compensation schedule, severance benefits and a definition of total disability. (See id. PageID.2059-2063.) Hennessey became a fully vested shareholder in the practice in accordance with Section 20 of the Employment Agreement as well as a stock purchase agreement. (Id., PageID.2097, 2113-2115.)[1]
A. Hennessey's History at MMENT
According to MMENT, Hennessey has a history of being unaccommodating and treating other medical practitioners inappropriately. MMENT has documented a series of incidents including, but not limited to, the following: in November 2014, a physician at Sparrow Hospital stated that Hennessey was “not cooperative” and declined to operate on a patient despite being the “physician covering ENT” at the time. (11/25/2014 Email from Sparrow Re: Hennessey, ECF No. 114-1, PageID.2003.)
In November 2019, while Hennessey was the on-call provider for McLaren Hospital, he received a phone call regarding a hearing aide dome that could not be removed by the emergency department staff. Hennessey believed that the patient's situation was not an emergency. Hennessey emailed the Chief Medical Officer at McLaren stating that he is “at the end of [his] rope” and “want[s] these calls to stop.” (11/27/2019 Email from Hennessey to McLaren, ECF No.114-4, PageID.2017.) He further stated that he would “no longer accept calls from residents or midlevel providers.” (Id.)
In May 2020, the Medical Director of McLaren's Emergency Department emailed Dr. Ahmed Sufyan, another MMENT physician, outlining her concerns with Hennessey and his dealings with the McLaren emergency department. She wrote that when Hennessey is on-call, “most of our providers are altering treatment plans or trying to arrange care elsewhere so they can avoid calling Dr. Hennessey on the phone” because “[h]e is condescending and insulting to our ED team with each and every call.” (5/27/2020 Email from McLaren Re: Hennessey, ECF No. 114-5, PageID.2024 (emphasis in original).) She also revisited the November 2019 incident regarding the patient with a hearing aide dome and noted that Hennessey told the patient that the emergency department inappropriately treated the condition and caused damage to the ear. This “provided inappropriate ammunition for litigation” and resulted in the patient “expecting financial compensation.” (Id.)
B. Hennessey's Previous Concerns About In-Office Balloon Sinuplasty Procedures
Physicians at MMENT perform a procedure in the office called a balloon sinuplasty. According to the American Academy of Otolaryngology - Head and Neck Surgery (“AAO-HNS”), a balloon sinuplasty procedure is an appropriate “first line” surgical alternative for patients with sinusitis, particularly Chronic Rhinosinusitis (“CRS”) and Recurrent Acute Rhinosinusitis (“RAR”). (Casiano Rep., ECF No. 131-4, PageID.2735-2736; see also Shermetaro Rep., ECF No. 132-1, PageID.2950; Shermetaro Dep. 62, ECF No. 131-5.)
For such procedures, “[t]here is a higher reimbursement rate in-office versus . . . doing balloons in the operating room.” (Shermetaro Dep. 56-57; see also Casiano Rep., PageID.2737.) Because these procedures may be separately billed to Medicare for reimbursement, there is “some concern within the industry over [its] potential inappropriate use.” (Shermetaro Dep. 67.) But the procedure is still widely used across the nation. For example, one of Hennessey's experts testified that the five ENTs in his office each perform two or three balloon sinuplasty procedures per week, so approximately 100 to 150 per year. (Casiano Dep. 24-25, ECF No. 123-20.)[2]
In November 2017, Hennessey grew concerned with the use of the balloon sinuplasty procedure at MMENT. Hennessey avers that a MMENT medical assistant sparked his concern by asking him why he was not performing a balloon sinuplasty on a patient without CRS or RARS, since the assistant had recently observed another MMENT physician performing the procedure on a patient with a similar CT scan. (Hennessey Decl. ¶¶ 13-14, ECF No. 131-10.)
Hennessey acted on his concern by looking into the patient files of other MMENT physicians to determine whether the balloon sinuplasties performed were medically necessary. In an email to Dr. Mark Lebeda, a fellow physician and the President of MMENT, Hennessey called his actions “a mistake” and clarified that he was “not saying anyone [was] doing anything unethical” but thought “that MMENT's recent history should lead [them] to be hypervigilant to prevent even the appearance of impropriety.” (11/16/2017 Email Exchange Between Hennessey & Lebeda, ECF No. 123-4, PageID.2464.) Hennessey also testified that Lebeda “put[] [him] on the spot unexpectedly” at the next shareholder meeting by calling attention to his actions. (Hennessey Dep. 151.) In an email to Hennessey after the meeting, Lebeda noted that approximately three to five in-office balloon sinuplasty procedures had been done at that point and that “performing these procedures from this time forward [would] be heavily scrutinized.” (11/16/2017 Email Exchange Between Hennessey & Lebeda, PageID.2465.)
Hennessey's concerns over the in-office balloon sinuplasty procedure resurfaced in 2020. Hennessey alleges that, in July 2020, MMENT's office manager Pam Trgina told him that Sufyan was performing the procedure without a properly documented justification. (Hennessey Dep. 154, ECF No. 131-9.)[3] Trgina testified that the conversation concerned the documentation procedures of all MMENT physicians, not just Sufyan. (Trgina Dep. 83-84, ECF No. 131-11.)[4] Hennessey then asked Trgina if he could propose a bi-annual audit process of each physician's patient charts at the next shareholder meeting. (Trgina Dep. 80-81; Hennessey Dep. 197.) But Trgina testified that Hennessey's proposal related to cerumen removal, not in-office balloon sinuplasty procedures. (Trgina Dep. 82.) At the shareholder meeting on August 18, 2020, Hennessey began to discuss MMENT's exposure to penalties from Medicare and private payers if MMENT sought payment for in-office balloon sinuplasty procedures that lacked the proper documentation, but Lebeda cut him off. (Hennessey Dep. 198-99; Hennessey Decl. ¶¶ 32-33.)
MMENT also acquired a TruDi surgical navigation system from Acclarent, Inc. in 2020. According to Hennessey, the TruDi system makes balloon sinuplasty procedures easier and faster to perform. (Hennessey Decl. ¶ 39.) Pursuant to a written agreement with Acclarent, MMENT would pay for the TruDi system by purchasing at least six sinuplasty balloons per month from Acclarent. (Acclarent Contract, ECF No. 131-12, PageID.2805.) Hennessey was concerned that this arrangement would improperly incentivize MMENT to perform unnecessary balloon sinuplasty procedures. (See Hennessey Decl. ¶ 42.)
C. Hennessey's Injury
In November 2020, Hennessey suffered a shoulder injury while caring for his two-year-old son. (Hennessey Dep. 259.) Hennessey informed MMENT of his injury on November 9, 2020. (11/9/2020 Hennessey Email, ECF No. 114-6.) Some MMENT physicians responded by offering to cover his on-call shifts.
In the coming months, Hennessey provided updates to the MMENT physicians on his injury. On November 24, 2020, Hennessey told them that he would offer telehealth visits to those patients already scheduled with him and continue to check his messages in Allscripts. (11/24/2020 Hennessey Email, ECF No. 114-8.) On December 18, 2020, Hennessey informed the MMENT physicians that he would have shoulder surgery on January 4, 2021, and that it could be up to six months before he returned to work. (12/18/2020 Hennessey Email, ECF No. 114-9.)
Hennessey also proposed that he limit his obligations to MMENT during his recovery. In 2017, Hennessey argued that another MMENT physician, Dr. Danielle Gainor, should still be responsible for paying her overhead while on maternity leave. (10/16/2017 Hennessey Email, ECF No. 114-11; Gainor Dep., ECF No. 114-22, PageID.2202-2203.) Despite this, in a December 22, 2020, email, Hennessey indicated that he did not want to pay overhead costs during his recovery. (12/22/2020 Hennessey Email, ECF No. 114-13.) He also noted that he believed his injury qualified as a disability under the employment contract, but that he was not requesting disability payments. (Id.)
With respect to call coverage, Hennessey indicated that Dr. Brian Peshek, another MMENT physician who does not take calls pursuant to his...
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