Tibor v. Michigan Orthopaedic Institute

72 F. Supp. 3d 750, 2014 U.S. Dist. LEXIS 168566, 2014 WL 6871320
CourtDistrict Court, E.D. Michigan
DecidedDecember 5, 2014
DocketCase No. 14-10920
StatusPublished
Cited by6 cases

This text of 72 F. Supp. 3d 750 (Tibor v. Michigan Orthopaedic Institute) is published on Counsel Stack Legal Research, covering District Court, E.D. Michigan primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Tibor v. Michigan Orthopaedic Institute, 72 F. Supp. 3d 750, 2014 U.S. Dist. LEXIS 168566, 2014 WL 6871320 (E.D. Mich. 2014).

Opinion

OPINION & ORDER

SEAN F. COX, District Judge.

Plaintiff is a surgeon who was negotiating an employment arrangement with Defendants Michigan Orthopaedic Institute (“MOI”) and William Beaumont Hospital (“Beaumont”). She alleges that after she moved here from California, and after she began working for Defendants, they asked her to sign certain contracts that she believed violated the law. Plaintiff alleges that she advised Defendants that the contracts violated the law and that Defendants terminated her employment after she refused to sign the contracts. Thereafter, Plaintiff filed this action against Defendants, asserting two counts: 1) “Retaliation in Violation of the False Claims Act” (Count I); and 2) “Discharge in Breach of Public Policy (under Michigan law)” (Count II). The matter is currently before the Court on Motions to Dismiss filed by Defendants. The parties have briefed the issues and the Court heard oral argument on November 20, 2014. The Court shall grant the motion in part and deny the motion in part. As explained below, the Court rejects all three of Defendants’ challenges to Plaintiffs False Claims Act Count. The Court also concludes, however, that Plaintiff cannot proceed with a state-law public policy claim because the False Claims Act provides the exclusive remedy for her alleged retaliatory discharge. As such, Count II, which was pleaded in the alternative, shall be dismissed.

BACKGROUND

Plaintiff Dr. Lisa Tibor (“Plaintiff’) filed this action on February 28, 2014, asserting claims against the following two Defendants: 1) MOI; and 2) Beaumont. Plaintiffs Complaint asserts two counts: 1) “Retaliation in Violation of the False Claims Act” (Count I); and 2) “Discharge in Breach of Public Policy (under Michigan law)” (Count II). Plaintiff filed the action in this Court based upon federal-question jurisdiction over Count I, the False Claims Act claim.

Plaintiffs Complaint includes the following allegations. Plaintiff is an orthopedic surgeon, who specializes in hip preservation and shoulder surgery. (Compl. at ¶ 2).

“Between August 28, 2012, and August 30, 2012, Defendants, Oakland Orthopaedic (an orthopaedic physician group working with Defendants) and Beverly Hills Orthopedists (an orthopaedic physicians group working with Defendants) met with Plaintiff regarding a possible employment arrangement with Defendants, Oakland Or-thopaedic, and Beverly Hills Orthopaedic.” (Compl. at ¶ 18). “Defendants, Oakland Orthopaedic, and Beverly Hills Orthopedists were inducing Plaintiff to move from her home in California to Michigan to take a position as an orthopedic surgeon whose time would be split between Oakland Or-thopaedic and Beverly Hills Orthopedists, [752]*752in conjunction with Defendant Beaumont.” (Compl. at ¶ 18).

Prior to and at these meetings, Plaintiff had been informed that MOI, Oakland Or-thopaedic, and Beverly Hills Orthopedists and others were forming an orthopedic “super group” for which Defendant Beaumont was the primary hospital. Dr. Ira Zaltz informed Plaintiff that the proposed super-group would include MOI, Oakland Orthopaedic Institute and Beverly Hills Orthopedists and other groups. The formation of the proposed orthopedic super-group was to gain more power and influence to negotiate more favorable terms with Beaumont and fix prices for orthopedic services to patients of Defendant Beaumont. (Compl. at ¶¶ 19-21).

In his role as Chief of Orthopedic Surgery at Beaumont, Dr. Harry Herkowitz was the main driving force behind the formation of the orthopedic supergroup. Dr. Herkowitz treated all orthopedic groups who would become part of the super-group as if they were interchangeable, made possible in part through a web of contracts, memoranda of understanding, recruitment agreements and other agreements by and between orthopeadic groups and/or Defendant Beaumont hospital. (Compl. at ¶¶ 22-23).

In discussions with the Plaintiff regarding her employment with Defendants, Dr. Herkowitz-would find Plaintiff employment at one of the orthopedic groups comprising the super-group. As the Chief of Orthopedic Surgery at Beaumont, Dr. Herkowitz exercised power over each orthopedic group that used Defendant Beaumont as their primary hospital (groups that would later form the super-group). (Compl. at ¶¶ 24-25).

On September 15, 2012, MOI and OOG agreed to consider employing Plaintiff half time at Defendant MOI and half time at Oakland Orthopaedic. (Compl. at ¶ 28).

On or around September 27, 2012, Plaintiff was told by Dr. Herkowitz, on behalf of Defendants, that her position would now be entirely at MOI. Defendants informed Plaintiff that her employment arrangements would be as follows: (1) two days per week doing clinical work at Defendant MOI; (2) one day per week of protected research; and (3) two days per week in the operating room at Defendant Beaumont as her clinical workload increased. Plaintiff understood that Defendant Beaumont would provide the funding to Defendant MOI for her salary for the first year of the arrangement. Defendant Beaumont was willing to fund Plaintiffs salary because Dr. Herkowitz (Chief of Orthopedic Surgery at Beaumont) wanted Plaintiff to assist Dr. Zaltz with his research being conducted at Beaumont, in addition to the clinical work for Defendants. (Compl. at ¶¶ 30-34).

Defendants expressed that they would try to arrange for Plaintiff to have hospital privileges by November 1, 2012. Based on this arrangement, Plaintiff could begin practicing in Michigan and take the Ortho-paedic Surgery Oral Board examination in July 2014 (as per the rules of the American Board of Orthopaedic Surgery). For the credentialing process, Defendants required Plaintiff to become credentialed under the tax code that was created for the super-group. (Compl. at ¶¶ 35-36).

On September 27, 2012, Plaintiff agreed to take the position with Defendants with the understanding that Defendant Beaumont would provide the funding to Defendant MOI for Plaintiffs salary for the first year. In a subsequent conversation, Plaintiff was informed that Defendants would take care of her moving expenses from California to Michigan. (Compl. at ¶¶ 37-38).

[753]*753In early October, 2012, Plaintiff met with Diane Blackburn, Recruiter for Defendant Beaumont, regarding her employment with Defendants. Plaintiff and Ms. Blackburn discussed her hospital privileges with Defendant Beaumont. Plaintiff was provided a packet of information regarding being a Defendant Beaumont physician. (Compl. at ¶¶ 39-40).

On October 30, 2012, Plaintiff moved from California to Michigan. On November 1, 2012, Plaintiff began her employment with Defendants and treated her first patient on November 8, 2012. (Compl. at ¶¶ 41-43).

On November 26, 2012, Defendants sent Plaintiff “non-final” versions of a proposed recruitment agreement and an employment agreement. The proposed recruitment agreement identifies Defendant Beaumont, Defendant MOI and Plaintiff as the parties entering into the agreement. (Compl. at ¶¶ 44-45).

Plaintiff was concerned with the proposed recruitment agreement because it appeared that Defendant Beaumont was seeking concessions including a referral agreement whereby Defendant MOI would agree to forego competition in its imaging market and refer exclusively to Defendant Beaumont. Plaintiff also believed this to be a violation of the Stark Anti-Referral Law. The proposed recruitment agreement stated that Defendant Beaumont would provide the “financial assistance” to enter into an “employment relationship” with the Plaintiff.

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Bluebook (online)
72 F. Supp. 3d 750, 2014 U.S. Dist. LEXIS 168566, 2014 WL 6871320, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tibor-v-michigan-orthopaedic-institute-mied-2014.