$10 million punitive award restored in doctor’s firing

The Missouri Court of Appeals Western District on Oct. 13 restored most of a $28.8 million jury award for a doctor who was fired after he raised safety concerns regarding emergency room staffing at Kansas City-area hospitals.

The verdict in Dr. Raymond Brovont’s favor — the seventh-largest plaintiffs’ win of 2018 as tracked by Missouri Lawyers Media — had been reduced to about $13 million after a trial based on Kansas law. But the Western District said Missouri, which lacks the same damage caps, had the “greater governmental interest” in applying its law to the case.

Brovont had worked at Overland Park Regional Medical Center in Kansas and at Centerpoint Medical Center in Independence, Missouri. He was terminated in 2017, allegedly in response to his complaints about a policy at the Overland Park hospital that required ER doctors to respond elsewhere in the hospital to “code blue” incidents, or incidents in which a patient needs to be resuscitated. Brovont alleged that the policy effectively left the ER unstaffed for long periods.

Brovont was an employee of two subsidiaries of EmCare (now known as Envision Healthcare). He brought suit against the Missouri company, MO-1 Medical Services, as well as the Kansas entity, KS-1 Medical Services, alleging that after raising his safety concerns to the KS-1 entity, he was barred from working in EmCare hospitals on either side of the state line.

Although the case was tried in Missouri, Jackson County Circuit Judge Marco Roldan applied Kansas law, which capped noneconomic damages at $300,000 and punitive damages at $5 million per defendant.

The Kansas Supreme Court subsequently struck down the noneconomic limit as unconstitutional, so it was clear that the original $6 million for pain and suffering had to be restored.  But the Western District also partially reinstated the jury’s original punitive damages, finding the MO-1 entity was liable for the full $10 million. 

Although Brovont is a Kansas resident and his firing occurred after he alleged unsafe practices at the Kansas hospital, he was terminated by an executive vice president who was the decision-maker for both companies, and he suffered economic injury when he was prevented from working at any of EmCare’s Missouri subsidiaries. 

Judge Gary Witt, writing for the Western District, said those facts demonstrated that Missouri’s law on punitive damages applied to the MO-1 entity. Missouri lacks an enforceable cap on punitive damages, as the Missouri Supreme Court in 2014 struck them down as a violation of the right to a jury trial. 

Based on those same facts, the Western District found that Missouri courts had jurisdiction in the case and were the “more compelling choice” to resolve the dispute. 

“Allowing these claims to proceed in Missouri is the only way to offer the parties a single forum in which to adjudicate their interwoven disputes,” Witt wrote.

The defendants had argued that the two subsidiaries should be treated as one, so only a single award of $5 million under Kansas law should be allowed. The appeals court declined to second-guess Roldan’s decision to assess each defendant separately. Because the Kansas punitive damage cap of $5 million still applies to the KS-1 entity, the final judgment was adjusted to $23.8 million, plus interest.

Mike Ketchmark of Ketchmark & McCreight, an attorney for Brovont, said he was “pleased but not surprised” by the opinion.

“How could another state possibly put a cap on a Missouri employer’s employment decisions in our own state?” he said. 

William E. Quirk of Polsinelli, an attorney for the defendants, didn’t return a call seeking comment.

The case is Brovont v. KS-1 Medical Services PA et al., WD82544.