A physician who complained about the emergency room staffing policy at Overland Park Regional Medical Center and won a huge jury award has seen most of the award restored after the trial judge slashed it by more than half.
The Missouri Court of Appeals on Tuesday ruled that the judge wrongly applied the law in reducing the $29 million in damages that a jury had awarded to Dr. Raymond Brovont and against the physician management company for whom he worked. The appeals court restored all but $5 million of the award.
“We’re pleased but not surprised by the opinion,” said Michael Ketchmark, one of Brovont’s attorneys.
Ketchmark said the case made the hospital’s parent company, HCA Midwest Health, and other for-profit hospital companies “sit up and take notice.”
“I think that Dr. Brovont is a real hero in that regard,” he said. “This is just a complete vindication of everything he tried to do.”
Brovont was employed by the Kansas and Missouri subsidiaries of EmCare Holdings Inc., a publicly traded company and the nation’s largest physician staffing concern. Overland Park Regional contracted with the Kansas subsidiary, which staffed its ER department.
Brovont had raised concerns with EmCare about the hospital’s staffing policy, which required the ER physician to respond to a “code blue” –a patient who has stopped breathing or whose heart has stopped functioning – anywhere in the hospital. Because there was only one physician on duty in the regular ER for as many as 18 hours a day, that meant the physician was required to leave it when a code blue occurred in the pediatric ER or among inpatients.
That became even more problematic when HCA doubled the hospital’s size, in the process doubling the number of beds in the ER and adding more beds to the hospital as a whole.
Brovont, who served as medical director of the ER department at Overland Park Regional, repeatedly complained about the staffing policy, which he believed jeopardized patient safety, caused significant anxiety among other emergency room physicians and violated federal law. Brovont directed his complaints to an EmCare executive vice president, Dr. Patrick McHugh, who responded by saying that HCA was a for-profit company and many of its staffing decisions were financially motivated.
After the ER staffing policy remained unchanged, Brovont drafted a letter to McHugh on behalf of all 22 of the department’s ER physicians outlining their concerns. Several weeks later, McHugh terminated Brovont’s employment both as medical director and as a clinician. Shortly after that, he prohibited Brovont from working for any EmCare hospitals in Kansas or Missouri.
Brovont sued both the Kansas and Missouri EmCare subsidiaries for wrongful termination and a Jackson County jury awarded him nearly $29 million damages, including $20 million in punitive damages. It was one of the biggest jury awards in Missouri in 2018.
The trial judge, however, halved the punitive damage award from $20 million to $10 million after finding that Kansas law, which caps punitive damages, applied. He also reduced the non-economic damages part of the award from $6 million to $300,000 after finding that Kansas law, which also caps non-economic damages, likewise applied.
In reversing the trial judge, the appeals court ruled that he wrongly applied Kansas law to the punitive damage claim against the Missouri subsidiary. EmCare had argued that because Brovont had complained about the staffing policy at Overland Park Regional, Kansas had the most significant relationship to the issues raised by the case.
But the appeals court noted that Brovont also had an employment contract with EmCare’s Missouri subsidiary and when that contract was terminated, he was no longer able to work at any Missouri hospital staffed by EmCare.
In the case of the non-economic award, the appeals court pointed out that the Kansas law that the trial judge had relied on to reduce it was declared unconstitutional by the Kansas Supreme Court in 2019.
Asked whether Overland Park Regional had changed its ER staffing policy after the Brovont case, Christine Hamele, a spokeswoman for HCA Midwest Health, said in an email that the hospital “was not involved in the case or the events leading up to it, nor a party in the lawsuit.”
“Overland Park Regional Medical Center prides itself on providing high-quality, compassionate care for patients, especially during their most vulnerable time,” she said.
EmCare officials did not respond to requests for comment.
