A physician who won one of the biggest jury awards in Missouri last year in a whistleblower case over emergency room staffing is going back to court after a judge slashed his award by more than half.
Dr. Raymond Brovont had worked in the regular emergency room and the pediatric emergency room at Overland Park Regional Medical Center. Technically, his employer was an emergency-room staffing company called EmCare. After he raised concerns that only one physician was being used at night to cover both ERs – a policy he believed endangered patient safety — Brovont was fired.
Last October, a Jackson County jury awarded Brovont nearly $29 million after he sued the two EmCare subsidiaries with which he had contracts. The award included $2.8 million in economic damages, $6 million in non-economic damages (pain and suffering) and $10 million in punitive damages against each of the defendants, KS-I Medical Services and MO-I Medical Services.
The jury verdict was the fifth biggest in Missouri in 2018, according to Missouri Lawyers Weekly, which tracks jury verdicts.
However, after the trial, Jackson County Circuit Judge Marco A. Roldan cut the pain and suffering award to $300,000, which is the cap Kansas imposes on non-economic damages. And Roldan halved both punitive awards because Kansas caps punitive damages at $5 million. That reduced the jury award from $28.8 million to $13.1 million.
In his appeal, Brovont argues that Roldan mistakenly applied Kansas law to his claims against Mo-I Medical Services, a Missouri company. Unlike Kansas, Missouri does not cap non-economic damages. And in Missouri, juries, not judges, determine the amount of punitive damages.
"We filed this appeal arguing it's improper to apply Kansas damage caps to a Missouri employer," said Michael Ketchmark, one of Brovont's attorneys. "We think that's particularly true in a case involving punitive damages, because half of the award to the plaintiff on punitive damages goes to the Crime Victims Compensation fund. The state of Missouri has an absolute economic interest in punishing employers for punitive damages and having that money go to crime victims."
Before he was terminated by EmCare, Brovont worked at Overland Park Regional and Centerpoint Medical Center in Independence. Both hospitals are owned by HCA Midwest Health, which uses EmCare to staff its ERs.
Brovont said his superiors were “furious at him” for complaining about ER staffing at Overland Park Regional and told him they would terminate his employment unless he resigned. He refused, and in January 2017 he was fired.
The two staffing subsidiaries have also filed appeals. They argue that the judge erred in admitting certain testimony and not admitting others; misstated Missouri law on the elements of wrongful termination; and the jury’s verdict was against the weight of the evidence.
Attorneys for the companies could not be reached for comment.
Dan Margolies is a senior reporter and editor at KCUR. You can reach him on Twitter @DanMargolies.