by A. Turk
Dr. Garcia has an absolute right to resign as an employee of Nichols & Garcia PC. It would be unlawful to require him to remain employed for the three-year term. However, Dr. Garcia by resignation triggers certain provisions of his employment agreement and the guarantee signed by his parents.
Please be advised that a copy of this letter has been sent to Mr. Wendell Smith of Goldman Sachs, which demanded that the $400,000 referenced in paragraph 15 of the employment contract and the guarantee be paid to Dr. Nichols to satisfy the default and breach of contract. If Dr. Garcia challenges this payment, the funds must be deposited in the Circuit Court of Davidson County, Tennessee, as provided for in the escrow agreement.
Please be advised that Dr. Garcia is prohibited as provided by paragraphs 18 and 19 from soliciting any patients or employees of the practice. I also remind you that Nichols & Garcia PC, of which Dr. Nichols owns ninety-nine percent, owns the phrase “Garcia kissable lips” and its related trademarks.
Finally, in your letter of May 17th, without explanation, you assert that the guarantee securing this transaction is unenforceable. Let me assure you that under Tennessee law, which controls this transaction, the document is enforceable. If you have additional information that you think I should consider, please provide it.
Yours very truly, Benjamin A. Davis.
A copy of the letter was also faxed to Dr. Nichols. At two o’clock Bella buzzed in and informed Davis that David Harrelson was on the phone. Davis asked Bella to request that Sammie sit in on the call. Within a minute Sammie was in Davis’s office.
“David, I’ve got you on speaker. My associate will be sitting in. Based on the correspondence, it looks like we’ve got a mess on our hands.”
“That’s one way to look at it. We suggest we all go our separate ways, shake hands, and be friends.”
“Why would my client do that? He has a perfectly good guarantee from the parents.”
“It just seems like you have a good guarantee.”
“What’s on your mind? You might as well identify your position. You’re not going to be able to keep it secret for long.”
“I’ve got two arguments to set the guarantee aside. First, the employment agreement violates the Stark federal anti-kickback laws. A DDS can’t earn a fee from services provided by a medical doctor. Second, you translated all of the documents into Spanish, right?”
“Okay.”
“You knew the Garcias were from Majorca, right?”
“Okay.”
“Well, Spanish is not the official language of Majorca. Catalan is. My clients don’t understand Spanish, so they couldn’t appreciate that they were guaranteeing the transaction.”
Davis looked at Sammie in silence for a few moments but knew he had to say something.
“Horseshit. You represented the Garcias. You speak English, don’t you? If you knew they didn’t speak Spanish, you had the obligation to translate the documents into Catalan. If your clients didn’t understand what they were signing, and I seriously question that, it was because of your negligence. Maybe I should recommend a good malpractice attorney.”
“What about my Stark argument?”
“More horseshit. Tennessee allows a DDS and an MD to form a professional corporation together. Since both the DDS and the MD are employees of the same corporation, there are no cross referrals. Also, Stark only applies to Medicare, and I seriously doubt any of those Garcia kissable lips were paid for by Medicare. Nice try, David, but the parents are on the line for the full $400,000.”
After the thirty-day notice period expired, Davis filed suit in the Circuit Court of Davidson County on behalf of Dr. Nichols against Dr. Charles Juan Batista Garcia and his parents. Three days later Goldman Sachs deposited the funds with the Circuit Court of Davidson County in Nashville.
CHAPTER TWENTY
RESPONDENT SUPERIOR
(Employer Liability for Its Employee)
Wednesday, July 3, 1996
It was the day before July 4th, a slow day for any cosmetic practice, with family commitments and the arrival of out-of-town guests. Despite these distractions, Nichols & Dowdle PC was open for business.
With the help of McCormick & Associates, Nichols replaced Dr. Garcia with a plastic surgeon, Anita Dowdle, MD within five days. Davis assured him it was a necessary hire to enforce Garcia’s non-compete. She was competent, capable, and offered lip enhancement, but she couldn’t duplicate Garcia kissable lips. They entered into a one-year contract; it would be a short honeymoon period. Dr. Anita Dowdle was hired as a quick replacement; if Dowdle worked out, so much the better.
Nichols sat at his desk fuming as he stared at the legal papers sent over by Sammie. The injunction secured by Davis stopped Garcia from specifically advertising Garcia kissable lips. However, it couldn’t stop him from advertising or performing the surgery; he was just prohibited from using the name. More important, those papers couldn’t stop the cancellation of appointments.
At nine a sheriff’s deputy appeared out of nowhere in reception and asked to see Dr. Nichols. He was informed that the doctor was in surgery. The deputy took a seat and waited. Upon completion of the procedure, Nichols came to reception to speak with the deputy. The deputy rose, handed Nichols a legal document, and announced, “You’ve been served and so has your company, Nichols & Garcia PC. Good day, sir.”
At first Nichols thought Garcia had brought a countersuit; Davis warned him of that possibility. As he skimmed the document, he realized it was something very different and literally ran to his office to call Ben.
“Hello, Dr. Nichols … ,” Bella began.
“Bella, I need Ben. It’s urgent!”
There was panic in his voice, and she said, “I’ll get him immediately.”
It took her what seemed like a half hour, but in reality it was only a few minutes.
“What can I do for you, Peter? Bella said it was urgent.”
“I’ve been sued.”
“Dr. Garcia filed a countersuit?”
“No, it’s not a suit by Charlie. It’s by a patient. I’ve only skimmed the document. A patient named Anna Perkins has sued Charlie, me personally, and the company. Somehow we’re responsible for her having sex with Charlie. I don’t understand. How can I be personally liable for Charlie having sex with a patient?” He was getting all worked up.
“Look, Peter, fax it over, and I’ll read it. I can’t give advice in the dark. Don’t discuss it with anyone, not Donna, not even Helen, until we have a chance to review it. Can you come over here this afternoon? I don’t want to discuss the lawsuit at your place until I know what we’re going to tell your staff.”
“I’ll cancel my last three appointments. I can be at your place by three.”
True to his word, Nichols arrived at Davis’s office exactly at three. Davis explained that Morty was at his farm, resting. He’d join them later.
The complaint was twenty-eight pages long with eight exhibits. Anna Perkins, also known as the plaintiff, sued Dr. Charles Juan Batista Garcia, Dr. Peter Nichols, and Nichols & Garcia PC, defendants, alleging various wrongful conduct, and she sued for compensatory and punitive damages totaling $10 million. Ms. Perkins claimed that she chose Dr. Garcia as her surgeon based upon reading certain advertisements placed by Nichols & Garcia in the Tennessean and also after seeing Dr. Garcia and Dr. Nichols on a local television show. She attached to the complaint as exhibits a copy of the newspaper ad and the written promotional material provided by Nichols & Garcia PC about its employee Dr. Garcia and Garcia kissable lips.
Jackson “Jack” Willis, a prominent Nashville attorney, prepared the complaint.
Davis commented, “He’s smart and juries like him.”
“Is he as good as you?”
“I’ve butted heads with him twice and won both times, but they were close calls.”
Sammie knocked and walked into Davis’s office. Morty followed behind her and, with a copy of the complaint in his hand, parked himself at the end of Davis’s confer
ence table. He was chewing on a big black cigar. Davis gave him a stern look.
“Get off my back. I’m only chewing on it. See, it’s never been lit.”
Davis decided to drop it, and subdued hellos were exchanged.
The complaint alleged that during Anna Perkins’s first consult with Dr. Garcia, he told her how much he liked her jeans and then proceeded to pull them and her panties down to her knees. Dr. Garcia then did a thorough examination, including an inspection of her breasts, which he commented were asymmetrical.
Sammie spoke first, “Why the hell is an oral surgeon examining a patient’s breasts? And I don’t understand this claim he pulled her pants to her knees. Any woman with any sense at all would have been out the door the moment he asked her to remove her shirt. Where was his nurse? Isn’t it protocol to have a female staff member present when a male doctor performs an examination?”
Nichols answered, “Maybe for a gynecologist, but it’s not the standard of care for an oral surgeon or a cosmetic dentist for that matter. I conduct consults without another staff member present, but I’ve never asked anybody to remove an article of clothing.”
Sammie was getting angry. “This woman’s an idiot. How does she explain her gullibility?”
Morty remained silent, reading the document.
Davis continued to recap the complaint. “She claims that during the first consult Dr. Garcia made physical advances and told her he was new to town, didn’t know many people, and found her very attractive. She claims she was flattered by the attention of a young, handsome surgeon.”
Davis’s paraphrasing recounted that later that night Ms. Perkins and Dr. Garcia went to dinner together and, according to the pleading, had unprotected sex at his home. As they lay in bed, Dr. Garcia explained that there was a Porsche automobile in Miami that he was interested in purchasing, and he asked Ms. Perkins to accompany him on a test drive. Admittedly, the plaintiff jumped at the chance to spend more time with Dr. Garcia. The complaint alleged that he asked the plaintiff to make the flight arrangements Saturday morning with an overnight stay. He promised to repay the plaintiff for these expenses.
The complaint described the evening in too much detail. Quite frankly, Nichols thought Willis went overboard when he identified certain sexual aids used. The complaint asserted that Ms. Perkins agreed to these uncomfortable acts to pleasure Dr. Garcia in the hope that he would continue the relationship.
Ms. Perkins alleged that as soon as they returned to Nashville on Sunday, Dr. Garcia became distant and started talking about the fact they should just be friends. He even went so far as to tell her he was interested in other women and wouldn’t be exclusive. The plaintiff became angry and demanded that day that Garcia reimburse the amount for the airfare and hotel accommodations she’d advanced. He claimed he didn’t have enough cash and asked if she took American Express. He promised to get the money to her at a later date, but he never did.
In a very agitated voice Sammie commented, “I would have punched the schmuck out, right there in the airport. This woman has no self-esteem.”
None of the men acknowledged her suggestion. Davis continued, “Two days later, Dr. Garcia called her and apologized. She accepted his apology. Three days after that, the plaintiff underwent surgery and paid the balance of her invoice, $9,000.”
Davis began to read, “A week later she had a follow-up visit at the offices of Nichols & Garcia, and after the examination of her surgery sites, Dr. Garcia began fondling her breasts. Davis read, “… then without warning he pulled down her jeans, bent the plaintiff over the exam table, and entered her from behind. He was unable to maintain an erection and became angry, blaming the plaintiff. At this point, the plaintiff claimed she didn’t know what to do because Dr. Garcia became louder and louder. He claimed he was distracted and asked the plaintiff to come to his home for a home-cooked meal. The plaintiff nervously agreed. That night she went to his home in Hillwood under the guise of sharing a home-cooked meal. Instead he lured her into the bedroom where he attacked her with a dildo. The sex toy was so big it caused tears to her anus and vagina, requiring her to seek medical treatment in an emergency room and from her gynecologist.”
Davis paused, then he shared his concerns: “That’s a big problem for Peter and the company. They had intercourse in the office. Up until that point, with the exception of the first exam, the inappropriate conduct took place outside the office. At the office he’s clearly under Dr. Nichols’s supervision and control. In Miami, Charlie’s on his own.”
Morty finally broke his silence. He’d been only half listening to Davis while he read intently. “I’ve seen a lot of lawsuits in my time, but this one has sex appeal. Willis has spun a good tale. His biggest problem will be his client. He can’t let older women sit on the jury. They’ll crucify his client.”
Davis nodded in agreement and turned to Sammie. He asked, “What about the sex toy? What will women think about the fact that she allowed him to insert a dildo in both her anus and her vagina?”
“According to the complaint, he sodomized her, tearing the lining of her anus and her vagina. The girth of the device was so enormous it caused real damage, requiring medical attention. They’ll have the testimony of not only the emergency room doctor but also a gynecologist. Physical evidence takes what happened out of the realm of he said, she said.”
Morty broke in and took control of the conversation, “She’s sued for both negligence and intentional wrongful conduct. She claims that a doctor having sex with his patient is malpractice, below the standard of care, and assault and battery. She blames the company and Peter individually for the negligent hiring of Garcia and failing to supervise him.”
Nichols listened to the lawyers banter back and forth. He’d sweated through his shirt, and his head was spinning. He wanted to throw up. He’d always conducted himself at the highest ethical and moral standards, and now he was being sued for failing to supervise that asshole. How could Charlie have the nerve to have sex with patients in the office? Nichols was both angry and anxious.
Sammie kept flipping pages.
Davis continued, “She’s even sued the company under the Tennessee Consumer Protection Act for false advertising as to the company’s representations of Dr. Garcia’s qualifications and ethics. What the hell is the Sexual Misconduct Victims Compensation Act?”
Sammie was the only one familiar with the act because she was in school and constantly learning about changes in the law and new statutes.
“It’s a statute passed by the legislature concerning therapists taking sexual advantage of their patients. I would think oral and plastic surgery fall outside the definition of therapy.”
Davis directed his next statement to Nichols: “We’ll need to call your malpractice carrier and put it on notice of the suit. We can’t take any real action without its knowledge and approval. Some of these allegations are covered by insurance while others are intentional torts, and I’m sure are excluded from coverage. We can’t give his carrier an excuse to deny coverage.”
Nichols tried to be optimistic, but Sammie’s revelation shook him. “This isn’t fair. I’ve done nothing wrong. It can’t be my responsibility to make sure Charlie keeps his pants zipped up.”
Sammie was listening sympathetically. She said, “Remember the night of Charlie’s open house? Well, he tried to introduce me to the dildo described in the complaint. When I told him I had no idea where that had been and that he could stick it up his own ass, he got angry. We haven’t spoken since the closing, and I didn’t say much to him that day. No person in her right mind would let somebody insert that in any orifice voluntarily. He’s a sick man.”
Nobody said anything. Everyone, including Sammie, was embarrassed.
Davis took a deep breath and said, “Look, Peter, there’s no question the company can be held liable for Garcia’s alleged wrongful conduct. Garcia was not only an employee of the company; he was a one percent owner. The company promoted him and made representations about his
skills as a surgeon. He was an agent of the company. In response to the allegations, the company will assert that he was hired to provide medical services, not perform sex with his patients. When an agent acts outside the scope of his or her authority, it’s called an ultra vires act, and the company is not liable. That’s our best argument if these allegations are true, but there are no guarantees in the law.”
Davis paused to let Nichols digest his concerns and then continued, “These claims by the patient that you are individually liable for Garcia’s sex acts are a whole different story. You didn’t personally employ him. Your company did. He wasn’t your agent. You both worked for the same company. That’s all. You have no personal liability. I should be able to get you personally dismissed from the lawsuit on summary judgment.”
“What the hell is a summary judgment?”
“The judge, rather than a jury, decides whether under the law you can be held personally liable for Dr. Garcia’s alleged sex acts. We need to file that motion early in the case, or we could lose that opportunity. Trust me, Peter, this is what I do. I’m a trial lawyer. My job is to out-strategize the other side. I’m looking out for you, but the law moves slowly. I can’t do anything about that, except remain diligent and persistent.”
While Davis was explaining the definition of respondent superior and their strategy, Sammie was half listening and looking over Nichols’s malpractice insurance policy with Tennessee Mutual Insurance Company. After reading half the policy and skimming the other half, consisting of boilerplate language, Sammie informed the others, “The Company, Nichols & Garcia PC, has $5 million in coverage for the year 1996, with unlimited defense costs. Your company, Tennessee Mutual, is a mutual insurance company, owned by you and the other doctors. Usually, most members-owners maintain $3 million in coverage or less and an annual $1 million cap on legal fees and expenses. So this is an excellent policy, with better coverage than most.”