Cancel v. Sewell
321 Ga. App. 523
Ga. Ct. App.2013Background
- CGAS provided exclusive anesthesiology services to The Medical Center under a contract extended through mid-January 2004.
- In 2003, The Medical Center announced contract termination for cause and a restructuring to a Nexus-based department.
- Cancel, Jain, Duque-Dizon, and Sanjeev applied to join the restructured department but were not offered positions; Cancel declined interview.
- Nexus Medical Group, formed in 2003, secured an exclusive anesthesia contract with The Medical Center starting 2004; Sewell served as Nexus board chair.
- Plaintiffs alleged fraudulent billing by CGAS physicians, fiduciary breaches, retaliatory actions, False Claims Act claims, and state-action free-speech claims.
- The trial court granted various summary judgments; the appellate court affirmed some rulings and reversed others, with cases proceeding on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether FCA claim was properly adjudicated | Cancel argues FCA viability; asserts factual basis. | Defendants contend FCA claim abandoned by plaintiffs. | FCA claim affirmed as abandoned; summary judgment proper. |
| Whether Cancel's free speech claim against state action survives | Cancel asserts state-action nexus via hospital authority involvement. | Defendants deny sufficient state action nexus. | No state action; free speech claim properly dismissed. |
| Whether Cancel is constructively discharged | Cancellation of job due to hospital actions constitutes constructive discharge. | Rejects constructive-discharge theory; interviews offered and refused. | No constructive discharge; summary judgment upheld against Cancel. |
| Whether Nexus can be held liable as alter ego of CGAS | Nexus is alter ego/successor liability for CGAS actions. | Nexus is a separate entity; no liability shown. | Nexus entitled to summary judgment; no basis for alter-ego liability. |
| Whether Cross-appeal challenges were properly before the court | Cross-appellants sought review of denial orders. | Appeals not properly perfected; moot/untimely. | Certain cross-appeals dismissed; final judgments as to others affirmed/reversed per divisions. |
Key Cases Cited
- Cowart v. Widener, 287 Ga. 622 (Ga. 2010) (summary judgment de novo review standard)
- Harmon v. Innomed Technologies, 309 Ga. App. 265 (Ga. App. 2011) (state action and public hospital considerations)
- Kodish v. Oakbrook Terrace Fire Protection Dist., 408 F.3d 987 (7th Cir. 2005) (constructive discharge in free speech context)
- Neal v. Honeywell, Inc., 191 F.3d 827 (7th Cir. 1999) (employment conditions and retaliatory conduct in FCA context)
- St. Mary’s Hosp. of Athens v. Radiology Professional Corp., 205 Ga. App. 121 (Ga. App. 1992) (state action limits in hospital employment decisions)