The Emergency Physician as Plaintiff
Issue: July/August 2021
Author: Andy Mayer, MD FAAEM
Editor-in-Chief, Common Sense
Political activism in support of emergency medicine can take many forms. Traditionally, political activism by physicians has taken the form of membership in county, state, and national medical societies who lobby various branches of state and national governments related to specific issues and bills, which are pending. Some more involved physicians write or call their state and national elected officials asking for their support or opposition to bills pending in the respective state legislatures or in our nation’s capital. The most active emergency physicians actually donate money directly to candidates and elected officials. They also try and develop a personal relationship with them and hope to become a trusted source of information and opinion related to upcoming health care related issues.
AAEM and other medical societies have asked, pleaded, and begged each of you to become involved with frankly a very limited amount of success. This editor’s column in the last issue, for example, implored you to act now to get involved in an effort to stem the loss of standing by our profession in the many issues facing us. These issues include but are not limited to the increased power of corporate management groups and insurance companies and the ever-expanding role of the various forms of Non-Physician Providers (NPPs) in our emergency departments. I understand that it is easy to be discouraged and fatalistic about the prospects for the future for the entire medical profession. The truth is that very few of you will ever be willing to go visit with a state representative or visit D.C. to lobby for AAEM or ACEP. Let’s be honest and ask how many of you read the candidate positions for the latest AAEM election or even took the time to vote?
It’s not all doom and gloom. There may be some signs of movement related to physician activism and we still have a little time to change the future of medicine for the better if we act. Think of the issue of global warming. When will be the tipping point when disaster is inevitable? Do we still have some time to change the course of what is coming? There does seem to be a rising sense of anger in the emergency medicine community, which might actually produce some increased activism and produce positive effects. The recent town hall meeting held by AAEM discussing workforce issues in emergency medicine had a significant attendance. Medical societies around the country are currently engaged in their state legislatures fighting independent practice for non-physician providers. Certainly, we need to try and continue using our regular channels for political activism, but now may be the time to change tactics before it is too late.
We have had limited success dealing directly with corporate management groups. Trying to convince a hospital administrator or corporate management group or other forces in our lives of the dangers facing the average emergency physician is difficult at best. The bottom line is their deciding factor. The financial bottom line should be important to us as we all live in the real world, but if you are working for a publically traded corporate management group the rate of return for the investor is the real bottom line. The interest of the emergency physician is practically irrelevant despite the fact that all of the income for the company comes from the medical professional services, which you provided while the shareholders were home in bed. The line item on these corporation’s budgets for the salary of the emergency physician is seen as an expensive loss of potential profit. Reducing coverage and increasing the use of non-physician providers makes sense for their bottom line and the safety of the patient takes a secondary priority to the shareholder’s rate of return.
Maybe we need to try a different way of making a difference. Remember when we are dealing with elected officials, regulatory agencies, or other entities we are usually dealing with a bunch of lawyers. It might be time to try a more aggressive method of fighting back by using the legal system against these same lawyers as they use it against us. I know that when we even hear about lawyers our fear factor increases and we run for cover, but there are always lawyers who will help you fight other lawyers. We just need to be smart about our tactics.
I ask you to take a look at a possible tactic which we as individuals or as a profession might consider. I do not know Dr. Raymond Brovont but he took a different path which I am sure was difficult. Fighting the swarm of lawyers who defend these multi-billion dollar corporate management groups may seem like David vs Goliath. This emergency physician tried it and won. Consider looking at a legal case called Raymond Brovont, MD v. KS-1 Medical Services, P.A. and MO-1 Medical Services, LLC. The Missouri Court of Appeal’s Western District ruling can be easily found on the internet, as it is a public record at Missouri Court of Appeals – Missouri Courts: https://www.courts.mo.gov/file.jsp?id=167435.
This is a legal document which is 48 pages long but just read the first few pages and you will understand the essence of the case and the clarity in which the appeal court judges saw through the legal veil hiding the corporate practice of medicine. This emergency physician was the medical director of the emergency department of a Level 2 Trauma Center, which had both an adult and pediatric side. This facility was even stating that they had a “24 hour” dedicated pediatric ER while the single physician was also covering the adult side and responsible for trauma activations and floor codes. The emergency department and hospital expanded but the hours of single coverage remained. The emergency physicians became increasingly concerned about possibly having to be multiple places at the same time and the fact that trauma system criteria required that an emergency physician be physically present 24 hours a day. The medical director expressed this concern to the management of the corporate management group. In the end, he was terminated and also not allowed to work at any of the CMG’s other local contracts.
This courageous emergency physician filed a claim for damages related to “wrongful discharge in violation of public policy.” He went to court and in 2018; a jury awarded him a verdict of $28.8 million. The trial judge decreased the verdict to $13.1 million. Both sides appealed the ruling and eventually the court of appeals in Missouri ruled in the physician’s favor and the award was changed to $23 million, which after judicial interest ended up being $26 million. Recently, the Supreme Court of Missouri refused to review the case so the verdict and $26 million award has stood. Much of the money will go into Missouri’s Crime Victims Compensation Fund. Of course, the lawyers will get a cut but still the emergency physicians will receive a significant amount of compensation for this incident but also the satisfaction that he took a stand and beat Goliath.
Reading the appeals court opinion is refreshing as it states many of the points which AAEM has been screaming from the rooftops. The judges were able to see through the veil put up by corporate management groups in their effort to avoid anti-corporate practice of medicine statutes. Below is a quote from pages two and three of the appeal court’s ruling which speaks for itself: “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.2 All rule references are to MISSOURI COURT RULES – STATE 2020.3 The facts are viewed in the light most favorable to the jury’s verdict. Wynn v. BNSF Ry. Co., 588 S.W.3d 907, 909 n.2 (Mo. App. W.D. 2019).3 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, 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 KSI or any other hospitals in the Kansas City area that had contracts with one of EmCare’s subsidiaries.”
How many more cases like this are out there? Will brave emergency physicians step forward when their careers and their patient’s safety is endangered by the greed of corporations? Hitting these corporate entities in their pocketbook looks like a viable way to fight for the rights of our profession. Maybe you can help our profession and try to take back control of emergency medicine by becoming a plaintiff or whistleblower. Dealing with the legal system is typically the last place a physician wants to be but consider that now may be the time to act before the last glacier which represents our profession is melted away and the rising sea level of corporate medicine washes over us forever!