St. James Healthcare v. Cole

• Decision Date: 12 February 2008
• Docket Number: No. DA 07-0084.,DA 07-0084.
• Parties: ST. JAMES HEALTHCARE, Plaintiff and Appellee, v. Jesse A. COLE, M.D., Defendant and Appellant.
• Court: Montana Supreme Court

178 P.3d 696

2008 MT 44

341 Mont. 368

ST. JAMES HEALTHCARE, Plaintiff and Appellee, v. Jesse A. COLE, M.D., Defendant and Appellant.

No. DA 07-0084.

Supreme Court of Montana.

Submitted on Briefs October 24, 2007.

Decided February 12, 2008.

Rehearing Denied March 5, 2008.

For Appellant: C. Richard Anderson, Michael J. McKeon, McKeon & Anderson, P.C., Butte, Montana, Mark A. Vucurovich, Henningson, Richardson & Vucurovich, P.C., Butte, Montana.

For Appellee: A. Clifford Edwards, Roberta Anner-Hughes, Edwards, Frickle, Anner-Hughes & Culver, Billings, MT.

For Amici: James P. Molloy, Molloy Law Firm, Helena, Montana.

Justice PATRICIA O. COTTER delivered the Opinion of the Court.

¶ 1 Appellant Jesse A. Cole, M.D., appeals the issuance of an injunction in the Second Judicial District, Silver Bow County. We affirm in part, reverse in part, and remand for further proceedings consistent with this Opinion.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 2 Dr. Cole is a licensed physician in the State of Montana who practices radiology in Butte, Montana. He was the head of radiology at St. James Healthcare (St. James) beginning in 1999, and had an exclusive contract with St. James to provide radiology services there. In January 2005 St. James terminated this exclusive contract. St. James stated it took this action because it had received a number of complaints about Dr. Cole's billing practices, alleging that he had been billing patients in excess of the allowances provided for by Blue Cross/Blue Shield. This practice was problematic for St. James because it wished to expand its radiology services and employ physicians who would accept and work with Blue Cross/Blue Shield. However, in spite of the termination of his exclusive contract, Dr. Cole continued to provide the vast majority of radiology services for St. James.

¶ 3 By October 2006 St. James was in negotiations with Dr. Anna Chacko, a radiologist and vice chair of Radiology at Boston University Medical Center in Boston, Massachusetts, to provide radiology services for St. James. Dr. Chacko was negotiating with James Kiser, the CEO of St. James, and Scott Steinfelt of Southwest Montana Radiology (SWMR) to expand radiology services provided at St. James under the aegis of Boston University. Dr. Chacko was to serve as a contact person among St. James, SWMR and Boston University in developing this relationship.

¶ 4 In late October 2006 Dr. Chacko visited Butte to negotiate directly with St. James. When she returned to Boston University she discovered that Dr. Cole had left her an email message, dated October 23, 2006, in which he requested the opportunity to speak with her. Prior to this email, Dr. Chacko had never had any contact with Dr. Cole. This email read, in part, as follows:

Dear Dr. Chacko,

My name is Jesse Cole. I am one of the radiologists who is currently practicing at St. James Healthcare in Butte.

. . . .

The reason I am writing you is because I would like to speak with you, preferably in person before you leave Butte. I think there are some things you should know about this situation. . . .

This situation is fairly difficult, and I will tell you that essentially this is a predatory situation and I know from speaking to other people who have come through here that they have not had things fully explained. Don't think I am dissuading your [sic] from coming here or trying to interfere with your business relationships in any way by writing this to you.

Thanks, I look forward to hearing from you soon.

Sincerely,

Jesse Cole

¶ 5 After receiving this email, Dr. Chacko contacted James Kiser for his approval to speak with Dr. Cole. Dr. Chacko called Dr. Cole after receiving this permission. At the beginning of this call, Dr. Cole informed Dr. Chacko that the call had to be teleconferenced with other some other doctors who practice radiology at St. James. Dr. Chacko insisted that she have her lawyer present if other parties were on the line. According to Dr. Chacko, Dr. Cole's voice and manner changed irrationally at that point and he became very angry and "he seemed to be sputtering with rage." Dr. Cole then informed Dr. Chacko that he would be calling, among others, the chairman of her department, the dean of the medical school, the American College of Graduate Medical Education, the American Board of Radiology, and the American College of Radiology.

¶ 6 According to Dr. Chacko, Dr. Cole then told her that "bad things can happen to you." Dr. Chacko informed Dr. Cole that their conversation was over and hung up the phone. After this interaction, Dr. Chacko became concerned for her physical safety. She later testified that she interpreted Dr. Cole's comments as a direct threat to her physical safety. After the call, Dr. Chacko contacted Mr. Kiser and asked him to do something about this situation, stating that she was concerned for her safety. She further informed St. James that if it did not address her concerns, neither she nor Boston University Medical School would be willing to work with St. James.

¶ 7 Meanwhile, Dr. Cole contacted the dean of the Boston University Medical School, Dr. Karen Antman, and Dr. Chacko's immediate supervisor, Dr. Alex Norbash, chair of the Board of the Department of Radiology at Boston University, as well as other employees of Boston University. In an email addressed to Dr. Antman, for instance, Dr. Cole stated that he was preparing to send a letter to United States Senator Max Baucus and other governmental agencies regarding the legality of "federally funded residency/fellowship teaching programs and the ramifications of their participation in private medical practice groups with regards to federal funding, etc." Another email sent to Dr. Antman referred to "some problems out here in Butte" that she and Dr. Norbash "may not be aware of," and offered to send Dr. Antman "some information which is confidential, as it comes from our hospital radiology department director . . . and I would not want to get her in trouble." This email concluded with the following:

Please call me at your earliest convenience or email me so we can set up a time to just talk. I have to say, as a radiologist I have seen the dark underbelly of practice and the lengths to which hospital administrators will sink to get power over physicians, and I have been through this once before here with another administrator and a rather unscrupulous radiology contract company. But I never thought I would see teaching programs in radiology getting involved in such a situation such as this without full disclosure and it greatly bothers me that your Dr. Norbash and Dr. Chacko would not have the courtesy to meet with the local radiologists.

¶ 8 In light of Dr. Cole's unwelcomed interference in these negotiations and his previous statements to Dr. Chacko, Dr. Chacko informed St. James that Boston University would be unwilling to go forward in negotiations with St. James unless some action was taken with respect to Dr. Cole. Dr. Chacko stated she had been involved in meetings with the executive vice president and senior administrator at Boston University, and that during those meetings concerns were expressed about what Dr. Cole might do next. Moreover, Dr. Chacko testified that she was concerned about Dr. Cole's continuing communications from a professional standpoint and opined that Boston University might conclude that the deal was too problematic, leaving Dr. Chacko without the aegis of the University.

¶ 9 In response to these concerns, the St. James Board of Trustees sought a restraining order against Dr. Cole enjoining him from engaging in threatening or harassing conduct towards Dr. Chacko and members of Boston University. The District Court granted a temporary restraining order against Dr. Cole on November 6, 2006. In that order, the District Court ordered Dr. Cole to appear at a subsequent hearing in order to show cause why the order should not be made permanent. A hearing was held on November 17, 2006, at which time the District Court extended the temporary restraining order until a further ruling on the matter.

¶ 10 At the hearing, the District Court learned that the St. James Board of Trustees had received other complaints against Dr. Cole concerning incidents where he had threatened, harassed, or intimidated other radiologists who were employed with St. James or whom the Board had attempted to contact. One incident of prior harassment concerned Dr. Dan Alzheimer of Sheridan Memorial Hospital in Sheridan, Wyoming. In 1995 Dr. Alzheimer built a radiology imaging center in Butte called Silver-Bow Imaging and hired Dr. Cole to work for him. In the course of getting to know Dr. Cole, Dr. Alzheimer had been to his house where Dr. Cole had shown him two 64-gun vaults, one of which was full of weapons. Later, Dr. Alzheimer moved to Sheridan but provided radiology services for St. James on an occasional basis. One evening Dr. Alzheimer received a call from Dr. Cole insisting that he be on call that night. Dr. Alzheimer explained this would be difficult since he lived approximately five hours from Butte. Soon thereafter, Dr. Alzheimer received a call from the staff at Sheridan Memorial Hospital saying that Dr. Cole had just called there demanding to speak with the hospital CEO and nursing staff superintendent at Sheridan Memorial Hospital. Dr. Alzheimer told the staff at Sheridan Memorial to give Dr. Cole those phone numbers so he could contact them.

¶ 11 Later that evening Dr. Cole called Dr. Alzheimer a second time, but this time Dr. Alzheimer's 15 year-old son answered the phone. After the conversation, Dr. Alzheimer's son asked him if he was going to jail based on the conversation he had just had with Dr. Cole. Dr. Alzheimer told the District Court that the call had upset his son and that he had to reassure him he was not going to jail. Around 10:30 p.m. that same evening, Dr. Alzheimer received a call from the CEO of Sheridan Memorial Hospital, after...