PHIPPS, Presiding Judge.
After the anesthesiology department of a hospital underwent a restructuring, four anesthesiologists who had been working there under their practice group were not selected for continued employment. Alleging that they had been wrongfully terminated because they had voiced concerns of fraudulent billing practices by fellow anesthesiologists, the four anesthesiologists — Angel Cancel, M.D., Pravin Jain, M.D., Grace Duque-Dizon, M.D., and Monajna Sanjeev, M.D. — filed suit against numerous individuals and entities. Herein, we review several rulings on various defendants' motions for summary judgment. For reasons explained below, we affirm the judgment in Case No. A12A1950; we reverse in part the judgment in Case No. A12A1951, while dismissing that case in part; and we dismiss Case No. A12A1952.
Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a
Viewed thus in favor of the plaintiffs, the evidence showed the following. The four anesthesiologists formerly practiced medicine under their group called Central Georgia Anesthesia Services, P.C. (hereinafter "CGAS"). It was comprised of approximately 14 anesthesiologists who were all shareholders, members of the board of directors, and employees of that company. During the years leading up to the restructuring in 2003, CGAS was under an exclusive contract with The Medical Center of Central Georgia, Inc. (hereinafter "The Medical Center"), whereby only CGAS would provide anesthesiology services, through its physician-employees, to The Medical Center's Macon hospital and that hospital's patients.
The contract relevant here provided that its "Term" would run from March 1, 2000 to February 28, 2002, unless terminated earlier pursuant to that contract. Upon its expiration or termination, the contract required CGAS physicians to resign their hospital privileges; if any such physician failed to do so, the contract provided that The Medical Center could terminate that physician's privileges. The contract did not terminate in February 2002, as the parties agreed to extend it through mid-January 2004.)
In April 2001, CGAS physician Cancel (who would become a plaintiff in the instant action) was named CEO of CGAS. Thereafter, he discovered what he believed showed that certain of his CGAS physician colleagues were fraudulently billing Medicare/Medicaid as well as insurance companies, thereby yielding unearned revenues for both CGAS and The Medical Center. He discussed the billing irregularities with CGAS members. And later, Cancel met with the Vice President for Medical Affairs for The Medical Center, Louis Goolsby, M.D., and notified him of the perceived billing problems. Cancel deposed that, within a short period of time, tension, stress and interpersonal problems arose amongst certain of the CGAS physicians.
Dissatisfied because of what he saw as continued noncompliant billing practices, Cancel, with The Medical Center's approval, contacted the American Society of Anesthesiologists (hereinafter "ASA") and requested an independent third-party investigation. But about a week before the scheduled investigation, during the first week of December 2002, Goolsby canceled the ASA's visit and investigation. Cancel, who already was contemplating quitting his practice at the hospital and moving to another state, was not informed of the cancellation beforehand. As he recalled during his deposition, "[B]y then I am frustrated and when [Goolsby] cancels that without telling me, without consulting with anybody, just unilaterally cancels, I gave up and I said, that's it.... Emotionally I had probably decided I can no longer stay here unless this is fixed."
Meanwhile, the Chief Executive Officer of The Medical Center, A. Donald Faulk, engaged a psychological consultant to evaluate the interpersonal dynamics amongst the CGAS physicians. Alvin Sewell, M.D., a shareholder/director/employee himself of CGAS, encouraged his fellow CGAS physicians to interact with that consultant. And thereafter, they did so. Cancel revealed during his discussion with the consultant in January 2003 his concerns of ongoing fraudulent billing irregularities.
In January 2003, Cancel submitted his resignation to be effective March 1, 2003, but within days of so submitting, changed his
While Cancel was on leave, Jain (who would become another plaintiff in the instant case) had acted as CGAS's CEO. Having also become concerned about potential billing non-compliance, Jain reviewed anesthesia records for a period of time through about the middle of April 2003 and discovered therein indications of billing irregularities by certain CGAS physicians. Jain shared with Goolsby his findings, as well as his belief that his findings showed that elements of billing compliance were missing.
A few days later, Faulk (as President/CEO of The Medical Center) sent a letter dated April 25, 2003 to Cancel (as CEO of CGAS), advising that, due to the allegations raised about and by certain CGAS representatives, including behavioral issues and fraudulent billing practices, The Medical Center was intending to cancel its contract with CGAS, effective May 31, 2003, pursuant to the contract's "with cause" clause, unless CGAS demonstrated by that date that it was in substantial compliance with the contract. The April 25 letter demanded that CGAS promptly retain a qualified independent consulting firm, subject to The Medical Center's approval of both the firm and its audit protocol, to conduct an audit of CGAS's billing practices and report the findings thereof to CGAS and to The Medical Center.
Additionally, the April 25 letter announced The Medical Center's intent to restructure its anesthesiology department effective February 29, 2004, even if CGAS demonstrated its compliance with their contract on or before May 31, 2003. And the letter informed CGAS that, beginning May 12, 2003, The Medical Center would begin a "recruitment process for staff anesthesiology positions" and those hired would become its "employees or independent contractors." The letter outlined that any CGAS .physician intending to provide services in the restructured anesthesiology department should promptly submit an application and that, although The Medical Center could not guarantee that any member of CGAS would be offered a contract of employment within the restructured department, The Medical Center would evaluate each application "fairly, objectively and on its individual merits."
Days later, at a CGAS shareholders and directors meeting on April 29, 2003, the attendees discussed a corporate dissolution. Sewell represented that a dissolution would serve to remove any encumbrances that might stand in the way of the hospital's restructuring and allow the hospital to negotiate contracts with the individuals of the group. At a May 5, 2003 CGAS shareholders and directors meeting, a proposal was unanimously passed that the CGAS contract with The Medical Center would terminate on August 31, 2003.
Meanwhile, Cancel, Jain, Duque-Dizon, and Sanjeev (who would become the four plaintiffs), along with other CGAS physicians, submitted their respective applications to work in the restructured department. Of those specific four, three were interviewed; Cancel, who by then was living in Colorado, was invited to be interviewed, but declined. None of those four doctors received an offer to join the restructured department, but eight other CGAS physicians did receive offers. Consequently, with the August 31, 2003 termination of CGAS's contract with The Medical Center, the three doctors (excepting Cancel, who already had resigned) lost their jobs as CGAS employees practicing at The Medical Center's hospital.
A few months later, in November 2003, Nexus Medical Group, LLC was formed. It is undisputed that, as of January 1, 2004, that company was under contract with The Medical Center as its exclusive provider of anesthesia services. Nexus was comprised of some former CGAS physicians — including Sewell, as well as physicians who had never been members of CGAS. Several of those physicians who had not been part of CGAS were recruited to Nexus as a result of Sewell's efforts. One such anesthesiologist, Nexus's Rule 30(b)(6)
Cancel, Jain, Duque-Dizon, and Sanjeev initiated the instant lawsuit for damages. They claimed that they had been "singled out" for exclusion and expulsion from providing services to The Medical Center because they had voiced concerns about fraudulent billing procedures. The defendants they named, as have since been grouped by the litigating parties, were: (a) Sewell, Miles H. McDonald, M.D.,
The plaintiffs sought recovery under a number of causes of action. Among their theories, they alleged: (1) Sewell, Tarabadkar, and McDonald, as directors and officers of CGAS, had breached fiduciary duties owed to them by engaging in fraud and misrepresentations; (2) The Medical Center and two of its officers, Goolsby and Faulk, had caused, induced, or conspired in the breach of fiduciary duties by Sewell, Tarabadkar, and McDonald; and (3) all defendants had committed fraud and deceit. The plaintiffs also sought relief under the False Claims Act;
A barrage of summary judgment motions filed by the defendants challenged the plaintiffs' claims on various grounds. Numerous hearings were conducted. At one such hearing, defendants attacked particularly Cancel's claims, positing that circumstances leading to his employment termination differed from those of the other plaintiffs in this critical aspect: Cancel chose not to be interviewed and instead resigned.
Subsequently, a series of orders entered by the trial court amounted to the grant of summary judgment against Cancel as to all his claims — the last of such orders recited: "[H]aving heard oral argument on November 10, 2011, as well as on several other occasions, IT IS HEREBY ORDERED that Defendants' motions for summary judgment as to plaintiff Cancel are GRANTED, and Dr. Cancel is hereby dismissed from this case." That order was entered on November 10, 2011.
Within 30 days of said entry, on December 8, Cancel filed a notice of appeal, citing the November 10 order as the directly appealable order and further stating that he would be challenging additional rulings in the case, including an "October 28, 2011 order granting summary judgment on Plaintiff Cancel's `free speech' retaliation claim pursued under the Georgia Constitution." Therefore, Cancel asserted, "The Georgia Supreme Court has jurisdiction over this appeal because it involves the construction of a provision of the Georgia Constitution"; hence, Cancel's notice of appeal was to the Supreme Court of Georgia. And within 15 days of the filing of Cancel's notice of appeal, two notices of cross-appeals were filed, thus, also to the Supreme Court of Georgia.
Upon the docketing of the three cases in the Supreme Court, however, that Court entered an order stating:
Accordingly, the three cases were docketed in this court. We consider each of the three appeals in turn.
The notice of appeal that gave rise to Case No. A12A1950 was filed solely by Cancel.
1. Cancel contends that the trial court erred by granting summary judgment against him on his claim brought pursuant to the False Claims Act. But at the summary judgment hearing thereon, counsel for the plaintiffs (and, hence, for Cancel) announced to the trial court that he agreed that the motion for summary judgment should be granted as to that cause of action. Thereafter, the trial court entered an order granting summary judgment to all defendants as to this cause of action, citing, inter alia, the summary judgment hearing. Given that this cause of action was thereby expressly abandoned, this contention has no merit.
Summary judgment was entered on this claim because the trial court found no evidence of a state action. Cancel does not dispute that state action is an essential element of the free speech claim; he argues that he presented evidence thereof.
(a) Cancel asserts that the requisite state action was shown "by virtue of the [1995] Hospital's lease with the Macon-Bibb County Hospital Authority 'to promote the public health needs of the community.'" But Cancel has failed to support his assertion with a record citation for the purported lease. "Because [Cancel] is the appellant, it is axiomatic that [he] bears the burden of showing error affirmatively by the record."
(b) Cancel points out that one of the defendants, Sewell, was seiwig on the Macon-Bibb County Hospital Authority and asserts that certain conduct by Sewell thus supplied the requisite state action.
Notwithstanding, there is no evidence that these actions were taken by Sewell in his capacity as a member of the hospital authority. The evidence showed that Sewell was acting as a shareholder and director of CGAS (a private entity). The evidence showed further that Sewell was acting as a liaison between CGAS and The Medical Center (also a private entity). According to Sewell, "[t]he hospital had come to a point at which they were so disgusted with our dysfunctional behavior, that they did not want to deal with us at all. I believe that they were contemplating getting rid of all of us. They were sick of us fighting and using them as a third-party mediator." Acknowledging that he was not a duly elected officer of CGAS at the time, Sewell deposed further that Goolsby and other such hospital personnel "had indicated to [him] in no uncertain terms that they did not want to deal with the CGAS officers" and had "asked [him] to be the contact person for the group. They did not want to talk directly to Dr. Jain or Dr. Cancel."
The mere fact that Sewell was a member of the hospital authority did not demonstrate a sufficient "nexus between the state and the challenged action"
3. Cancel contends that the trial court erred by granting summary judgment on his remaining claims, thereby dismissing him from the entirety of the case. He asserts, "The defendants failed to adequately pierce the allegations raised in the Complaint which show that Cancel was constructively discharged." Cancel does not offer any substantive argument to explain how his assertion, even if correct, resurrects any of his causes of action. And "[w]e mil not speculate or make arguments on [Cancel's] behalf; to do so would improperly change this court's role from disinterested decision-maker to appellate advocate."
(a) Instead, Cancel asserts that the defendants failed to pierce allegations he raised in his complaint. As reiterated recently in Cowart v. Widener,
(b) Cancel next asserts that he presented evidence that authorized a finding that he was "forced to quit his job due to the hospital defendants' refusal to address the concerns raised by him related to potentially fraudulent billing practices of the CGAS physicians for work performed in the Department of Anesthesiology at the hospital." But as Cancel acknowledges, after he took leave, the anesthesiology department underwent changes, and he was invited to interview for a position within the restructured department. He declined to be interviewed.
Cancel was asked during his deposition why he had declined, and answered, "I had gotten word that [a certain doctor (who is not a party to this litigation) ] was on the board of the — committee board, so he is one of the anesthesiologists vying for the same position as I am in there." But Cancel conceded that the hospital would have needed more than one anesthesiologist for that particular position. In Cancel's opinion, however, the other doctor did not have "the most merit," which Cancel could not reconcile with his understanding of language in the April 25 letter which indicated that physicians would be selected based on merit. Additionally, Cancel gleaned it inappropriate for that doctor to interview him, given Cancel's belief at the time that both of them were seeking "a position at the same place in the same stature."
On appeal, Cancel maintains that it was reasonable for him to so decline to be interviewed because, as was the case in Kodish v. Oakbrook Terrace Fire Protection Dist.,
5. Cancel challenges the trial court's refusal to exclude at trial certain of the consultant's notes taken during her discussions with the CGAS physicians. Given the foregoing,
6. Cancel's final contention likewise is moot. He complains that the trial court denied the plaintiffs' motion to compel documents from The Medical Center. Cancel does not specify which discovery request was denied, but describes generally in his appellate brief that "[pjlaintiffs sought to discover information related to the facts and/or information considered by the interview committee during the selection process utilized to rehire physicians after the termination of [The Medical Center]/CGAS contract." Cancel argues that, contrary to the position taken by The Medical Center, neither the peer review privilege
In light of the foregoing,
The notice of cross-appeal that gave rise to Case No. A12A1951 was jointly filed by the individual defendants Sewell, Tarabadkar, and McDonald, as well as the corporate entity Nexus.
7. Sewell, Tarabadkar, and Mc-Donald contend that the trial court erred by denying their motion for summary judgment,
The case is not final, and the denial of SewelPs, Tarabadkar's, and McDonald's motion for summary judgment is not directly appealable.
8. Nexus contends that the trial court erred in denying its motion for summary judgment, which order was entered on November 21, 2011. Nexus asserts that it (Nexus) was not in existence until months after the plaintiffs' employment through CGAS terminated, when it (Nexus) was organized as a legally separate entity from CGAS.
Under the plaintiffs' theory, the eventual formation of Nexus was a vital component of the other defendants' alleged scheme to defraud the plaintiffs out of their contractual rights. And cross-appellants have aptly cited cases for the proposition that, under a successor-in-interest principal, the date of a corporate formation may not end, as a matter of law, all inquiry as to the corporation's liability.
Notwithstanding, Nexus is correct that the plaintiffs failed to provide any basis for disregarding the legal separateness of it and CGAS. Although the plaintiffs recite language quoted above from the complaint alleging that Nexus is liable to them, the cases cited by plaintiffs fall short of supporting their contention that Nexus itself may be held liable as the alter-ego of any combination of the remaining defendants.
The notice of cross-appeal that gave rise to Case No. A12A1952 was filed jointly by The Medical Center and its officers Faulk and Goolsby. Their joint notice of cross-appeal and their claims of error enumerated in their joint brief show that these parties challenge orders denying their respective motions for summary judgment, which orders were entered on December 13, 2011.
9. For reasons discussed above,
Judgment affirmed in Case No. A12A1950; Judgment reversed in part and appeal dismissed in part in Case No. A12A1951; Case No. A12A1952 dismissed.
ELLINGTON, C.J., and DILLARD, J., concur.