Litigating A Medical Practice Break-Up Is Rarely A Good Idea

     I observe the insides of medical practice business disputes on a regular basis, and I am always amazed at (1) how many similarities there are, and (2) how often the parties turn to litigation to resolve their differences. Similarities appear in the form of legal agreements that are less than perfect, or which, although technically sound, fail to expressly address a particular situation that comes to pass in the parties\’ relationship. Unfortunately, once physicians find themselves on opposite sides of one of these “gray areas” in their documents, they reflexively call in the cavalry, and the litigation battle begins.

     Writing in the New York Business Divorce blog, Peter A. Mahler describes just such a situation in Anesthesiology Practice Undergoes “Legal Equivalent of a Proctology Exam” in Shareholder Dispute, dissecting the recent post-trial decision by Suffolk County Commercial Division Justice Emily Pines in Suffolk Anesthesiology Associates, P.C. v. Verdone, 2012 NY Slip Op 50728(U)(Sup.Ct. Suffolk County April 25, 2012). He fairly describes the case as “a bare-knuckles contest pitting an expelled physician-shareholder of a large Long Island anesthesiology practice against the 11 other physician shareholders.”

     I will not repeat Mr. Mahler\’s stellar synopsis of the case, including the court\’s pre-trial and post-trial rulings, which is worth the read. Familiar elements include an apparent power struggle, major business decisions favored by fewer than all of the shareholders, alleged “whistleblower” claims and some “tit for tat” good faith and fair dealing issues. The end result was a finding of some “breach” or “fault” by both sides, and an order that put them close to what a disinterested observer would have recommended from the very beginning. 

     Mr. Mahler observes that the absence of a particular provision in the parties\’ documents (involuntary termination without cause) probably inspired both sides to adopt the litigation posture they pursued. Similar omissions or the occurrence of unanticipated circumstances are often present in these cases. To me, the real question is why, time and time again, “divorcing” physicians in these circumstances and their lawyers escalate the litigation to what he calls “a DEFCON 1 situation in which each side has little choice but to launch their biggest missiles against the other, necessitating public disclosure of embarrassing and potentially troublesome information about the Practices.”

     To be fair, I know only what I read in the blog post and the court\’s post-trial decision, and it is possible there were facts that compelled this course of action. More likely, the familiar pattern of emotional clients making irrational decisions, and lawyers doing their best to litigate their way to victory, led to this result. The litigation started in October 2008 and went to trial in 2012. There were numerous interim proceedings and pre-trial motions. The trial lasted 11 days and included the testimony of 15 witnesses and over 100 exhibits. One can only imagine the total cost to both sides in legal fees, expenses and time lost from practicing medicine.

     Mr. Mahler suggests that mandatory arbitration provisions in the parties\’ agreements would have saved them from public disclosure of their “dirty linen” and greatly shortened the time (and money) required to reach a resolution. I agree. But I find even more compelling the argument for mediation prior to any form of adjudicative proceedings. This appears to have been a textbook case of the parties having more than sufficient common interests and available resources to fairly defuse their dispute through mediation. The cost-benefit analysis of mediation in these cases is off the charts. Hopefully, “divorcing” physicians and their counsel will take heed.