By Ray King

The Arkansas Court of Appeals Wednesday said Circuit Judge Alex Guynn erred when he struck answers from representatives of Jefferson Hospital who were being sued by a doctor who alleged he was retaliated against after he reapplied for medical privileges after they were revoked.

The Appeals Court sent the case back to Guynn for further consideration based on their ruling that the motion seeking to have the answers struck did not contain a statement that a good faith effort had been made to get the information before seeking court action.

Dr. Lee Davis filed suit against Jefferson Hospital Association, the organization that runs the hospital, former hospital CEO Walter Johnson, Dr. David Nixon, who was director of credentialing, and Federal Insurance Company.

Davis practices internal medicine and cardiology in Jefferson County and was on the medical staff of JRMC (now Jefferson Regional hospital) from 2003 to 2008 when his privileges were revoke. As a result, he filed suit in federal court alleging that the revocation was racially motivated and violated due process. He also filed suit in state court alleging the revocation interfered with his business expectancy with patients, other doctors and insurance companies.

He also began the process of reapplying to have his medical privileges restored, a request that was denied. In a letter denying the request, Johnson said that during the entire process of seeking to have his medical privileges restored, Davis was pursuing a $35 million lawsuit.

Bylaws for hospital require physicians to “work with and relate harmoniously to other staff appointees, hospital administration, and hospital employees in the cooperative professional manner that is essential for maintaining a hospital environment appropriate to quality patient care,” Johnson said in the letter. “The objectivity demonstrates a lack of willingness or capability to work with and relate harmoniously to the hospital and members of his staff.”

The federal lawsuit was dismissed, leaving Davis with the state case and Davis sought information on who else had knowledge of the facts and circumstances in the case, then asked the court to strike the hospital’s answers as “unresponsive.”

Attorneys for the hospital responded by asking that the request be denied because Davis could not prove that Johnson and Nixon’s answers were in bad faith and additionally, Davis failed to say that he tried in good faith to talk to hospital officials about the additional information he was seeking.

After a hearing, Guynn ruled that responses from Johnson and Nixon would be struck and found that their conduct prejudiced Davis by “concealing potential defendants until the statute of limitations had passed, by impairing Davis’ ability of determining the order of and prepare for depositions, and because people who can’t be added as a defendant could now testify in support of the defense without the risk of civil liability.”

The hospital appealed Guynn’s ruing and writing for the Appeals Court, Associate Justice Phillip T. Whiteaker said “Davis’ failure to state that ‘he in good faith conferred or attempted to confer’ was fatal to his motion.”
The judge said a person seeking sanctions for a failure to answer written questions ‘shall include a statement that the movant (Davis) has in good faith conferred or attempted to confer with the party failing to answer or respond in an effort to obtain such answer or response without court action.”

Attorneys for Davis contended that an email sent to attorneys for Jefferson Hospital met the requirement to confer but Whiteaker said it did not. He said state law does not allow for an email. The motion seeking the sanctions must include a statement of good faith attempts to confer and Davis’ motion did not.