Highlands Oncology Grp. v. Garner

688 S.W.3d 517

2024 Ark. App. 310

HIGHLANDS ONCOLOGY GROUP, P.A., Appellant

v.Hershey GARNER, M.D., Appellee

No. CV-22-486

Court of Appeals of Arkansas, DIVISION III.

Opinion Delivered May 15, 2024

APPEAL FROM THE WASHINGTON COUNTY CIRCUIT COURT [NO. 72CV-22-1207], HONORABLE DOUG MARTIN, JUDGE

Carithers Johnson Devenport, PLLC, Fayetteville, by: Kelly Carithers and Colin M. Johnson, for appellant.

Clark Law Firm PLLC, by: Suzanne G. Clark, Fayetteville and Payton C. Bentley, for appellee.

BRANDON J. HARRISON, Chief Judge

₁Highlands Oncology Group, P.A. (Highlands) appeals the preliminary injunction entered in favor of Dr. Hershey Gamer. Highlands argues that the circuit court erred by not following the rule of nonreview and by granting Gamer’s motion for a preliminary injunction. We affirm.

I.

Gamer is a radiation oncologist who practiced with Northwest Arkansas Radiation Therapy Institute (NARTI) for approximately twenty years until NARTI was purchased by Highlands in 2008. Along with being a shareholder in Highlands and a member of its Board of Directors, Gamer entered into an employment agreement with Highlands in 2008; this agreement gave specific limited terms under which Gamer’s employment could be terminated.

In early 2021, the radiology oncology (rad onc) department had only two physicians, ₂Gamer and Chris McClinton. In addition to hiring a third physician in 2021, Gamer and McClinton discussed bringing Gamer’s son, Wesley, into the rad onc practice after WeSley graduated from medical school in 2022. The minutes from the February 2021 executive committee meeting contain the following language:

Hershey asked if anyone had an issue with Wes joining the practice as his replacement in 2022, and that he and Chris were agreed on that addition. The committee had no objections. It was pointed out that a contract for Wes had not been finalized and so hadn’t been reviewed, and the board would need to be involved in that hiring decision due to Wes Gamer being Hershey’s son.

Gamer later denied ever saying that Wesley would be his replacement and stated, "I don’t know how that got in there."

While the shareholder physicians in the rad onc department generally have authority over its hiring decisions, Highlands has a company nepotism policy that states, "It is Highlands Oncology policy that members of your immediate family will not be considered for employment unless approval is granted by the Board of Directors." When the decision about Wesley’s employment came before the Board, Gamer was asked not to attend the board meeting, and he did not object. On 1 March 2021, the Board voted to approve the hiring of Wesley Gamer. That evening, Highlands’ CEO, Jeff Hunnicutt, sent a text to Gamer stating that the Board "voted unanimously to override the nepotism policy and allow Wes to join Highlands," On March 4, Garner reviewed the minutes from the March 1 board meeting, which included the following:

There was discussion and agreement that two family members couldn’t effectively or fairly work together in the same department in these positions. Hershey has indicated that Wes will be his replacement, and he will retire prior to Wes’[s] start date.

₃The group determined that this variance to the policy would be granted with the understanding that Hershey will end employment prior to Wes beginning employment. Administration will assist in determining a preferred timing strategy.

A motion was made and seconded that Wes Gamer be offered a position as radiation oncologist at Highlands but that there be no overlap of employment between Hershey and Wes. This motion was unanimously approved.

Gamer contended that he had never said he would retire before Wesley’s start date and sought to correct the Board’s misunderstanding about the timing of his retirement. He texted Hunnicutt and said, "[T]here’s a problem" with the minutes. Hunnicutt responded that he understood Gamer’s confusion because part of his text from March 1 had not gone through. The message that Gamer had not received on March 1 stated, "We will still need to work through your departure, as the board does want to avoid two family docs working together." Gamer responded, "We need to revisit that[.] … [L]et’s address this sooner rather than later."

Gamer and Hunnicutt also spoke in person soon after, and Hunnicutt told him that "the board felt strongly that two family members couldn’t work together in the department." Gamer responded that was a "non-starter" and that he was not going anywhere. He suggested a board meeting be convened right away to discuss the concerns and craft a solution. However, it was decided that the matter would be addressed at the next regular board meeting. Meanwhile, Highlands executed a contract hiring Wesley, and Gamer signed as a witness to the contract. Gamer interpreted the execution of Wesley’s employment contract as a sign that "we were going to move forward, work together, and build the department, address the issues, and take care of patients."

₄The next board meeting was not held until almost a year later on 21 February 2022. The minutes from that meeting state:

Jeff Hunnicutt informed the group that Hershey had asked for the board to be convened. Hershey Gamer told the board that he would like to discuss the decision that he would need to terminate employment when Wes started, in acknowledgement of the no nepotism clause. Hershey said he had recently been surprised to hear from Jeff that he would need to leave by July 1st, and he wanted to know why he couldn’t work with his son. Thad Beck mentioned that Hershey had requested Wes’[s] contract be fast-tracked approximately a year ago, and at that time Hershey had said he would leave when Wes came. Hershey responded that he didn’t recall saying he’d leave immediately, and he would prefer to wind down. … [Thad] suggested that Hershey could potentially move into an emeritus role similar to Dr. Hayward where he might be assigned special projects or fill in if requested when a rad onc was on vacation.

….

Dan Bradford stated that the board needed some time to discuss this and suggested another meeting in a month or two.

On 26 May 2022, Gamer filed a complaint against Highlands alleging breach of contract and seeking a preliminary injunction requiring Highlands to maintain his status as an employee and shareholder of the company during the pendency of the case. In the complaint, Gamer reiterated that Highlands’ policy allows the hiring of immediate family members if approved by the Board of Directors, and in this case the board had approved pursuing an employment contract with Wesley. He asserted that Highlands was not firing him as a result of any action he had taken and that, pursuant to his employment agreement, Highlands did not have authority to terminate him absent some wrongdoing on his part. He also expressed extreme concern for his patients, who would have their doc-tor-patient relationship with him terminated while undergoing cancer treatment.

Gamer also filed a formal motion for a preliminary injunction and an emergency ₅hearing. He argued that Highlands was acting outside any legal authority to terminate him from his position with Highlands, that the termination will cause irreparable harm not only to him but, more importantly, to the doctor-patient relationship with those cancer patients who are relying on him for their care and treatment, and that he has a reasonable probability of success in the litigation.

The circuit court scheduled a hearing on 8 June 2022. But on June 1, Gamer moved for a temporary restraining order (TRO) after Highlands decided that he should be "relieved of any patient responsibilities and prohibited from all Highlands Oncology properties with immediate effect" in a letter dated 31 May 2022. The court entered the requested TRO on June 1, finding that Gamer had demonstrated good cause for entry of the TRO and that the risk of irreparable harm to Gamer’s patients was immediate in the absence of the TRO. The court further found,

Issuance of this TRO without notice is justified due to the intentional conduct evidenced by Defendant. Rather than present its case to the Court in eight days, the Defendant chose to bar Dr. Gamer from access to its facilities and his patients, which is the very conduct Plaintiff[’]s motion sought to enjoin.

The court ordered that Gamer be provided full access to Highlands’ clinics and equipment in order to treat his patients, that Highlands immediately cease diverting patients from Dr. Gamer’s care, and that Highlands maintain the status quo with regard to Gamer’s status as an employee and shareholder in all respects and take no action to lessen or remove his access to patients or Highlands’ facilities.

After the June 8 hearing, at which the circuit court heard testimony primarily from Garner and Hunnicutt, the court found that irreparable harm to Gamer’s doctor-patient ₆relationships would result absent the issuance of a preliminary injunction. The court also found that Gamer had demonstrated a likelihood of success on the merits of his breach-of-contract claim. (Specific findings from the court’s ruling will be discussed below.) Thus, the court issued a preliminary injunction that provided Gamer shall have full access to Highlands’ clinics and equipment in order to see his patients and shall see any patient that requests to be treated by him or his referred to him. Highlands timely filed this interlocutory appeal from the circuit court’s order.

II.

[1–3] We review a preliminary injunction under an abuse-of-discretion standard. City of Jacksonville v. Smith, 2018 Ark. 87, 540 S.W.3d 661. This is a high threshold that does not simply require error in the circuit court’s decision but requires that the court act improvidently, thoughtlessly, or without due consideration. Holladay v. Glass, 2017 Ark. App. 595, 534 S.W.3d 173. We will not delve into the merits of the case further than is necessary to determine whether the circuit court exceeded...