Carroll "don" Johnson v. Pope Emergency Group, LLC

Cite as 2019 Ark. App. 544
Digitally signed by Elizabeth ARKANSAS COURT OF APPEALS
Perry
Date: 2022.08.08 11:39:06 DIVISION I
-05'00' No. CV-18-511
Adobe Acrobat version:
2022.001.20169
Opinion Delivered: November 20, 2019

CARROLL “DON” JOHNSON
APPEAL FROM THE POPE
APPELLANT COUNTY CIRCUIT COURT
[NO. 58CV-14-347]
V.
HONORABLE DENNIS CHARLES
POPE EMERGENCY GROUP, LLC SUTTERFIELD, JUDGE

APPELLEE AFFIRMED

RAYMOND R. ABRAMSON, Judge

In 2014, Pope Emergency Group (Pope) had an arrangement with St. Mary’s

Regional Medical Center in Russellville (St. Mary’s) whereby Pope agreed to supply

physicians to staff the hospital’s emergency department. In February 2014, Pope entered

into an agreement with the appellant, Dr. Carroll “Don” Johnson, to provide emergency

room physician services as an independent contractor at St. Mary’s. On June 30, 2014, Dr.

Johnson’s confrontation with a nurse led St. Mary’s to request that Pope remove Dr.

Johnson from the staff of the emergency department, whereupon Pope terminated its

contract with Dr. Johnson.

Dr. Johnson filed a complaint in the Pope County Circuit Court alleging that Pope

and its parent company, Schumacher Group of Arkansas (Schumacher), were liable for

breach of contract and wrongful termination. Dr. Johnson also sued Russellville Holdings,
LLC, which owns and does business as St. Mary’s Regional Medical Center. 1 Dr. Johnson

alleged that the hospital tortiously interfered with his contract with Pope and Schumacher.

Pope filed a counterclaim for breach of contract alleging that Dr. Johnson had failed to

return a $30,000 signing bonus as required by the terms of their agreement.

Pope, Schumacher, and St. Mary’s all filed motions for summary judgment,

whereupon Dr. Johnson nonsuited all his claims against them. 2 Pope elected to continue

pursuing its counterclaim, however, and the circuit court granted summary judgment in its

favor in an order entered on February 2, 2017. Dr. Johnson now appeals the circuit court’s

order. We affirm.

I. Facts and Procedural History

Dr. Johnson is a physician who specializes in emergency medicine. In late 2013, after

years of working in Jonesboro, Dr. Johnson decided to return to St. Mary’s, where he had

previously worked as an emergency room physician from 2000 until 2008. The prospect of

Dr. Johnson’s return to St. Mary’s was initially met with some hesitation by the

administration of St. Mary’s and officials at Pope and Schumacher because some patients

1
All references to the party Russellville Holdings, LLC, will be according to its
assumed business name, St. Mary’s Regional Medical Center (St. Mary’s).
2
Dr. Johnson refiled his claims against Pope, Schumacher, and St. Mary’s in a separate
case, Pope County Circuit Court case number 58CV-16-358. The circuit court dismissed
the claims with prejudice, however, after ruling that the summonses failed to strictly comply
with Ark. R. Civ. P. 4(b). In a companion case that we also decide today, see Johnson v.
Schumacher, 2019 Ark. App. 545, 589 S.W.3d 470, we affirm the circuit court’s order
dismissing the refiled complaint.

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and hospital staff had complained that Dr. Johnson was “rude,” “arrogant,” and

“condescending” during his previous tenure in the emergency department.

Nevertheless, on January 24, 2014, Dr. Johnson and Pope executed a “Physician

Agreement” (Agreement) whereby Dr. Johnson agreed to provide physician services in the

emergency department at St. Mary’s. The Agreement became effective on February 17,

2014, and it had a one-year term that would automatically renew every year that Dr.

Johnson “worked at least one (1) clinical shift.” The Agreement also provided, however,

that Pope could terminate the contract “immediately” and “without written notice” for a

number of reasons, including when “Hospital Administration requests the removal of [Dr.

Johnson] or reports that [he] is being disruptive, unprofessional, or unreasonably

uncooperative with the medical or administrative staff of [the] Hospital.” Additionally, Dr.

Johnson would have to return a $30,000 signing bonus if he failed to meet any of the terms

and conditions of the Agreement, including his obligation to “maintain membership in good

standing on the Medical Staff of [St. Mary’s] and abide by the bylaws, rules, and regulations

of the Medical Staff[.]”

Dr. Johnson began working at St. Mary’s on March 8, 2014. A couple of months

later, Dr. McLane Simpson, the emergency room medical director for Pope and

Schumacher, learned of two incidents in which Dr. Johnson and emergency room nurses

had clashed over the use of nurse-initiated order sets, which authorized the nurses to order—

in the attending physician’s name—certain medical tests and medications according to a

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patient’s particular complaint. 3 The order sets had not been in use during Dr. Johnson’s

previous tenure at St. Mary’s, and he believed that they allowed nurses to engage in the

unauthorized practice of medicine. Dr. Johnson also opined that the order sets resulted in

fraud because many of the tests that the nurses ordered—and the hospital billed to the

patients—were unnecessary. After discussing the issue with Dr. Johnson and hearing his

objections, Dr. Simpson ordered the nursing staff to avoid using the order sets during Dr.

Johnson’s shift in the emergency room.

On June 27, 2014, Jayme Smalley, the nurse manager in the emergency department,

learned that one of Dr. Johnson’s patients had a complaint about the care that he had been

given. The patient was suffering from an infection, and a nurse, acting according to one of

the order sets, had placed an IV. The patient told Ms. Smalley that he consequently believed

that he would be admitted to the hospital and treated with IV antibiotics. Dr. Johnson,

however, administered intramuscular injections of antibiotics and discharged the patient.

According to Ms. Smalley, the patient and his family “simply wanted an explanation,” and

if the patient ultimately was not going to be admitted into the hospital, they wanted to “talk

to the physician one more time to find out why.” Ms. Smalley responded that she would

ask Dr. Johnson to speak to the family and explain his decision.

Ms. Smalley approached Dr. Johnson while he sat in a physicians’ work area at the

nurses’ station. She explained the concerns of the patient and his family and requested that

3
To further explain, the order sets are also known as “complaint driven order sets.”
One set of orders, for example, was formulated to address a male patient who is over thirty-
five and presents to the emergency room with chest pain. Following the preapproved order
set for such a patient, a nurse may order, among other things, a cardiac panel, an EKG, and
a chest x-ray.

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Dr. Johnson return to the patient’s room to explain his decision to give an intramuscular

injection and discharge him. According to Ms. Smalley, Dr. Johnson believed that Ms.

Smalley was questioning his medical judgment, and he refused to go explain himself to the

patient. A loud and heated argument ensued. Ms. Smalley testified in a deposition that at

one point in the altercation, Dr. Johnson got “uncomfortably close to [her],” and “pointed

his finger at [her] towards [her] sternum.” Ms. Smalley further testified that a witness to the

argument became visibly uncomfortable and that she herself felt “a little intimidated.”

Ms. Smalley immediately reported the incident to Dr. Simpson and the

administration of St. Mary’s, eventually telling Mike McCoy, the hospital’s chief operating

officer, “what [had] happened, that the patient actually . . . went home, and Dr. Johnson

never went back into the room to talk to the patient or family.” Mr. McCoy thereafter

decided that the incident with Ms. Smalley, as well as Dr. Johnson’s reputation from his

previous tenure at St. Mary’s, warranted contacting Pope and Schumacher to request that

they stop scheduling shifts for Dr. Johnson in the emergency department.

Consequently, on June 30, 2014, Mr. McCoy sent an email to Dr. Simpson stating

that the hospital administration “[did] not want Dr. Johnson working in [its] ER” because

“[t]he behavior that he displayed [with Ms. Smalley] was unacceptable.” Dr. Simpson

forwarded Mr. McCoy’s email to Schumacher’s general counsel, Ryan Domengeaux, who

determined that Mr. McCoy’s request warranted immediate termination of Dr. Johnson’s

contract.

On November 12, 2014, Dr. Johnson filed a complaint against Schumacher, Pope,

and St. Mary’s in the Circuit Court of Pope County. The complaint described the use of

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nurse-initiated order sets in the emergency department at St. Mary’s and alleged that Dr.

Johnson “believed this practice was illegal, unethical, and fraudulent; and was placing him

in a position of condoning malpractice.” The complaint further alleged that nurses

continued using the order sets during his shift in the emergency department even after Dr.

Simpson “told the nurses verbally that Dr. Johnson does not want nurses ordering in his

name.” Dr. Johnson also alleged that his view of nurse-initiated order sets “became a

constant point of contention” with the nurses and that he “was told that he was

disruptive/disrespectful of the nurses.” He asserted that this negative atmosphere culminated

in a “hostile confrontation” with Ms. Smalley that “was about an admission of a patient to

the hospital and Dr. Johnson ‘not getting with the program.’” Dr. Johnson finally alleged

that he was terminated shortly after the incident with Ms. Smalley even though he had

contacted Dr. Simpson to resolve the issue and was “wholeheartedly in favor of repairing

nursing relationships and resolving his concerns.”

Based on those alleged facts, Dr. Johnson claimed that Pope and Schumacher

breached the Agreement “by terminating the contract based on [his] refusal to violate the

law” or, alternatively, that Pope and Schumacher wrongfully terminated him “because of

[his] refusal to violate the public policy of the State of Arkansas” as codified at Arkansas

Code Annotated sections 17-95-202(3)(A)–(B) and 17-95-401 (Repl. 2018). 4 Dr. Johnson

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Arkansas Code Annotated section 17-95-202(3)(A)–(B) defines “office-based
surgery” as “surgery that is performed by a physician in a medical office . . . that requires
the use of general or intravenous anesthetics[.]” Section 17-95-401 generally provides that
any person who practices medicine must have a valid license to do so.

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further claimed that St. Mary’s tortiously interfered with his contractual relationship with

Pope and Schumacher based on his “refusal to violate the law.”

Pope filed a counterclaim against Dr. Johnson alleging that it had paid him a $30,000

signing bonus pursuant to the terms of the Agreement. Pope also alleged that the Agreement

“provided that the entire signing bonus sum of $30,000 paid to [Dr. Johnson] shall be

forfeited and returned to Pope Emergency Group within thirty (30) days of his last shift

worked, if the terms and conditions of the [Agreement] are not complied with at any time

during the commitment term.” According to Pope, Dr. Johnson stopped providing services

at St. Mary’s on July 1, 2014, and “all of his physician hospital privileges were revoked.” As

a result, “[Dr. Johnson] was in breach of contract and was required to return the signing

bonus.” He did not; and Pope alleged unjust enrichment and conversion based on Dr.

Johnson’s failure to return the signing bonus as he had agreed.

Pope, Schumacher, and St. Mary’s filed motions for summary judgment, whereupon

Dr. Johnson voluntarily nonsuited his claims. Pope nonetheless elected to proceed with its

counterclaim against Dr. Johnson, alleging that it was entitled to summary judgment because

the undisputed facts demonstrated that “Dr. Johnson breached the Agreement by failing to

return the $30,000 signing bonus within 30 days.” The circuit court agreed and granted

summary judgment on the counterclaim in an order entered on February 2, 2017.

Dr. Johnson now makes two arguments for reversal. First, while Dr. Johnson

acknowledges that he did not return the $30,000 signing bonus, he argues that he produced

“substantial evidence” that Pope was the first to breach the Agreement by wrongfully

terminating him in violation of public policy. According to Dr. Johnson, Pope terminated

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his contract because he objected to St. Mary’s use of nurse-initiated order sets in a manner

that violated public policy against the unlicensed practice of medicine. Second, Dr. Johnson

argues that the circuit court erred by granting the motion for summary judgment because

Pope failed to show the absence of a genuine issue of material fact regarding his affirmative

defense of fraud in the inducement.

II. Standard of Review

We determine if summary judgment was appropriate after considering “whether the

evidentiary items presented by the moving party in support of the motion leave a material

question of fact unanswered.” E.g., Madden v. Mercedes-Benz USA, Inc., 2016 Ark. App. 45,

at 4, 481 S.W.3d 455, 458. “Once the moving party has established prima facie entitlement

to summary judgment by affidavits, depositions, or other supporting documents, the

opposing party must meet proof with proof and demonstrate the existence of a material issue

of fact.” Id. “The court views the evidence in the light most favorable to the party against

whom the motion was filed, resolving all doubts and inferences against the moving party.”

Id. “A court may grant summary judgment,” moreover, only when it is clear that there are

no genuine issues of material fact to be litigated and that the party is entitled to judgment as

a matter of law.” Id.

III. Discussion

A. Wrongful Termination

Dr. Johnson first argues that the circuit court erred by granting summary judgment

because he demonstrated genuine issues of material fact in his defense that Pope wrongfully

discharged him in violation of public policy. While Dr. Johnson concedes that cognizable

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wrongful-discharge claims have been limited to at-will employees, he argues that “there is

no reason” that the doctrine should not be extended to independent contractors like himself.

He further contends that he put forth evidence that created genuine issues of material fact

regarding whether St. Mary’s use of nurse-initiated order sets violated an established public

policy in Arkansas.

Pope responds that the circuit court correctly ruled, as a matter of law, that Dr.

Johnson cannot claim that he was wrongfully discharged. Pope asserts that wrongful-

discharge claims have been limited to at-will employees in Arkansas, and it is undisputed

that Dr. Johnson was “not an at-will employee, or even an employee of any sort[.]” Pope

also asserts that even if this court were to extend wrongful-discharge claims to independent

contractors like Dr. Johnson, he failed to establish that St. Mary’s use of nurse-initiated order

sets violated a well-established public policy. Finally, Pope asserts that in any event, Dr.

Johnson failed to demonstrate that he was terminated because of his objections to the nurse-

initiated order sets.

“This court has repeatedly held that when an employee’s contract of employment is

for an indefinite term, either party may terminate the relationship without cause or at will.”

Tripcony v. Ark. Sch. for the Deaf, 2012 Ark. 188, at 9, 403 S.W.3d 559, 563. An at-will

employee may have a cause of action for wrongful discharge, however, if he or she is fired

in violation of a well-established public policy of the state. See Sterling Drug, Inc. v. Oxford,

294 Ark. 239, 248–49, 743 S.W.2d 380, 385 (1988). This public-policy exception “sounds

in contract” because “a public policy discharge action is essentially predicated on the breach

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of an implied provision that an employer will not discharge an employee for an act done in

the public interest.” Id. at 249, 743 S.W.2d at 385.

Nevertheless, as Dr. Johnson admitted in his deposition below and appears to

concede in his brief here, he is not an at-will employee. Indeed, the Agreement is very clear

about the nature of his relationship with Pope, providing that it “shall be that of an

independent contractor” in which Pope “shall not exercise any control or direction over

the methods by which [Dr. Johnson] shall perform [his] professional work and duties while

on duty.” The Agreement further provides that it “shall not be construed as an agreement

of employment,” and correspondingly, Pope had “no responsibility for withholding any

sums for payroll taxes, FICA, or any other such employee related benefits or statutory

requirements.” Rather, Dr. Johnson agreed that as an independent contractor, it was his

“sole responsibility to provide for tax liabilities or other statutory obligations,” including

“his own worker’s compensation insurance [and] disability insurance.” Accordingly, Dr.

Johnson cannot avail himself of a wrongful-termination claim that to date has been reserved

for at-will employees.

We need not decide, moreover, whether claims of wrongful termination based on

violations of public policy should be extended to independent contractors like Dr. Johnson.

This court will not consider an argument when it is not apparent without further research

that the argument is well taken, Beth’s Bail Bonds, Inc. v. State, 2016 Ark. App. 171, at 3,

486 S.W.3d 240, 241, and Dr. Johnson does not make a sufficient argument on this complex

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issue of first impression. 5 Dr. Johnson’s principal brief asserts only that “there is no reason”

that the doctrine should be limited to at-will employees, and his reply brief does little more,

simply asserting that the contract rationale for the exception recognized for at-will

employees in Sterling Drug should extend to all contracts. Moreover, he makes the argument

for the first time on appeal. Therefore, because we have “long held that we will not consider

an argument when the appellant presents no applicable authority or convincing argument

in its support,” Steele v. Lyon, 2015 Ark. App. 251, at 5, 460 S.W.3d 827, 832, or any

argument when it is raised for the first time on appeal, see Pleasant v. State ex rel. McDaniel,

2019 Ark. App. 248, at 6, 576 S.W.3d 90, 94, we decline Dr. Johnson’s apparent invitation

to extend Sterling Drug to independent contractors.

Even so, Dr. Johnson has not established that St. Mary’s use of nurse-initiated order

sets violates public policy. To succeed on a claim of wrongful termination, Dr. Johnson

would have to demonstrate that he was terminated in violation of an established public

policy, which is generally found in the state’s constitution and statutes. Sterling Drug, 294

Ark. at 249–50, 743 S.W.2d at 385. Dr. Johnson does not point to any statute that

5
Indeed, the supreme court engaged in a detailed survey of out-of-state cases when
it decided whether to recognize the public policy exception for at-will employees in Sterling
Drug, 294 Ark. at 248–49, 743 S.W.2d at 385, and courts that have addressed whether
independent contractors can claim wrongful termination in violation of public policy have
considered a wide spectrum of issues, including the terms of the underlying contract. See
Ostrander v. Farm Bureau Mut. Ins. Co. of Idaho, 851 P.2d 946, 949–50 (Idaho 1992) (refusing
to extend the doctrine because the implied covenant of good faith and fair dealing did not
apply to independent contractors); Abrahamson v. NME Hosps, 195 Cal. App. 3d 1325, 1330
(Cal. Ct. App. 1987) (independent contractor whose contract allowed “termination without
cause” did not have a claim for wrongful termination). Cf. Ackerman v. State, 913 N.W.2d
610, 614–22 (Iowa 2018) (analyzing the development of the common-law claim to
determine that it should be extended to contract employees).

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addresses—or expressly prohibits—the use of nurse-initiated order sets. He also cannot

extrapolate such a policy from Arkansas Code Annotated section 17-95-401, which

generally prohibits “any person” from practicing medicine without a license. See Palmer v.

Ark. Council on Econ. Educ., 344 Ark. 461, 472, 40 S.W.3d 784, 790–91 (2001) (rejecting

argument that Fiscal Responsibility Act and general state accounting laws established a

public policy against combining public and private funds in a single account).

Finally, Dr. Johnson has failed to demonstrate that Pope terminated the Agreement

in retaliation for his objections to nurse-initiated order sets. The evidence below

conclusively demonstrated that Pope terminated the Agreement simply because St. Mary’s,

after investigating Dr. Johnson’s conduct with Ms. Smalley, requested Dr. Johnson’s

removal from the emergency department’s schedule.

In addition, there is no evidence that Dr. Johnson’s objections to nurse-initiated

order sets played any role in St. Mary’s request. Indeed, Dr. Johnson testified that he never

communicated his objections to anyone in the administration at St. Mary’s. Mr. McCoy

also testified that “[i]t would not be St. Mary’s policy or procedure to discipline or remove

a physician who was unwilling to use the nurse-initiated order sets.”

Rather, Dr. Johnson’s history of unacceptable conduct toward the staff and patients

at St. Mary’s was the reason that officials at the hospital no longer wanted him in the

emergency department. Mr. McCoy explained that Donnie Frederick, the hospital’s chief

executive officer, directed him to investigate the incident with Ms. Smalley and instructed

him that “if [Dr. Johnson’s] behavior was inappropriate like it had been in the past when he

was [at St. Mary’s], that we didn’t need him working in our ER.” Also, as indicated above,

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Mr. McCoy testified that he determined that Dr. Johnson “was no longer going to be

working at St. Mary’s” as a result of the incident with Ms. Smalley and his conduct during

his previous tenure at the hospital. Mr. McCoy further explained that “whether or not Dr.

Johnson was right or wrong with respect to patient care,” he “did not act appropriately by

not going back and being an advocate for that patient and discussing the situation and why

he treated [the patient] the way he did.” Therefore, because the evidence demonstrates that

Pope terminated the agreement simply because St. Mary’s requested his removal, and that

request was precipitated by Dr. Johnson’s unacceptable conduct—and not his objections to

nurse-initiated order sets—we affirm the circuit court’s order.

B. Fraud in the Inducement

Dr. Johnson asserted several affirmative defenses in his answer to Pope’s

counterclaim, including fraud. At the hearing on Pope’s motion for summary judgment,

Dr. Johnson argued that there remained a genuine issue of material fact regarding whether

he was fraudulently induced to execute the Agreement by its express term providing that

Pope “shall not exercise any control or direction over the methods by which [Dr. Johnson]

shall perform [his] professional work and duties while on duty.” According to Dr. Johnson,

Pope’s agreement that he could engage in “the unfettered practice of medicine at [the]

hospital,” was fraudulent because Pope knew that St. Mary’s allowed nurses to use the order

sets to intervene in patient care.

The circuit court rejected Dr. Johnson’s argument, ruling that he did not state a

cognizable claim of fraud in the inducement because he “based [his] argument . . . on

language in the Agreement itself” rather than “on a statement made prior to the execution

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of the Agreement.” The circuit court also ruled that “Dr. Johnson has not submitted any

proof demonstrating that he was forced to practice differently from his preferences,” and in

fact, the proof showed that “when [Dr. Johnson] complained about the nurse-initiated order

sets, the nursing staff was told not to use them when Dr. Johnson was on duty.” On appeal,

Dr. Johnson apparently asserts that the circuit court erred when it rejected this claim without

requiring Pope to come forward with evidence and argument negating his fraud claim.

We must affirm because Dr. Johnson failed to assign any error to the actual basis of

the circuit court’s ruling—that he failed to state a cognizable fraud claim. It is well settled

that we will not address the merits of an argument when other grounds supporting the

circuit court’s order go unchallenged, see Quarles v. Courtyard Gardens Health and Rehab.,

LLC, 2016 Ark. 112, at 9, 488 S.W.3d 513, 520, and Dr. Johnson does not assign any error

to the circuit court’s ruling that he failed to state a cognizable fraudulent-inducement claim.

In any event, the record below does not demonstrate that Dr. Johnson was forced to

use the nurse-initiated order sets, as he apparently claims. Dr. Simpson and Dr. Johnson

both testified, after all, that Dr. Simpson instructed the nurses to avoid using nurse-initiated

order sets while Dr. Johnson was on duty. Mr. McCoy also testified that any physician who

does not want to use the order sets “could choose not to use them, as long as they reported

[the reason] to the medical director.” The circuit court’s order, therefore, is affirmed.

IV. Conclusion

Dr. Johnson failed to demonstrate that Pope first breached the Agreement by

terminating him in retaliation for his objections to St. Mary’s use of nurse-initiated order

sets. As an independent contractor, Dr. Johnson cannot advance a wrongful-termination

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claim that has been recognized only for at-will employees, and in any event, he failed to

establish that St. Mary’s use of the nurse-initiated order sets violated a clearly established

public policy. The evidence below also demonstrated that Pope actually terminated the

Agreement because St. Mary’s requested Dr. Johnson’s removal from the emergency

department—not because of his earlier objections to the nurse-initiated order sets. Finally,

we reject Dr. Johnson’s argument that the circuit court erred by dismissing his defense of

fraud in the inducement because he does not challenge the actual basis for the circuit court’s

ruling. The order granting summary judgment on Pope’s counterclaim, therefore, is

affirmed.

Affirmed.

GLADWIN and KLAPPENBACH, JJ., agree.

Sutter & Gillham, P.L.L.C., by: Luther Oneal Sutter; and Baker & Schulze, by: J.G.

“Gerry” Schulze, for appellant.

Wright, Lindsey & Jennings LLP, by: Regina A. Young and Gary D. Marts, Jr., for

appellee.

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