Radiologist loses appeal in case claiming former practice wrongfully terminated him in violation of FMLA

A radiologist recently lost an appeal in a case claiming his former practice wrongfully terminated him in violation of the Family and Medical Leave Act.

Jason M. Browning, MD, had worked for Bay Radiology Associates in Panama City, Florida, for a decade. In August 2019, he was diagnosed with a temporary medical problem that kept him from practicing medicine, forcing him to request time off through the FMLA.

However, the practice terminated him “with cause” days afterward, according to court documents. Browning sued in September 2021 claiming breach of contract and violations of the leave act. After a series of attorney filings, a district court in August 2023 ruled that Browning had not properly established damages, issuing a summary judgment against the radiologist.

He later appealed, with a judge rejecting his request last month. Browning had argued that the court “abused its discretion” by excluding evidence that he was forced to pay tail insurance premiums (to extend his health insurance policy) following his termination.

“Notably, Browning conceded at the summary judgment hearing that he received a higher salary at his employment with [competing practice Envision Physician Services] than he would have if he had stayed with Bay Radiology, and thus, he could show no lost wages damages,” the June 27 opinion states. “Likewise, he conceded that switching his 401k did not cause him economic harm. Thus, Browning agreed that his only remaining source of damages was the tail insurance premiums that he was required to pay as a result of his for-cause termination.”

The United States Court of Appeals, 11th Circuit, contended that Browning failed to disclose his tail premium payments in previous filings, derailing the request.

“Notably, as the district court [previously] determined, it had already properly found that Browning could not establish damages with respect to his FMLA claims. In so finding, the court correctly noted that the same lack of damages finding was fatal to Browning’s breach of contract claim under Florida law, which Browning has not disputed,” the opinion stated later.

The history

Court documents detail challenges at the radiology group leading up to Browning’s termination. In October 2018, Hurricane Michael made landfall in Panama City, “significantly” impacting the practice’s finances.

Operations at hospital partners Ascension Sacred Heart Bay and Gulf Coast Regional Medical Center were “heavily disrupted” for months and Bay Radiology suffered “significant financial repercussions.” Five of the 13 radiologists left within months and Browning’s home was destroyed. After the storm, he lived in a series of temporary residences with a child born only eight days after the hurricane.

By summer 2019, Bay Radiology was experiencing difficulties servicing obligations at Ascension and Gulf Coast due to staffing shortages. Bay Radiology later notified Gulf Coast that it would no longer provide services to the hospital. And the practice allegedly told its physicians they were free to discuss joining competing practice Envision Physician Services after September 2019.

Prior to that, in July 2019, Bay Radiology called a meeting to discuss losing the hospital contract and the “continued viability” of the practice. According to minutes of the meeting, physicians decided to provide an “unrestricted release” from any covenant not to compete in each of the member employment agreements. Practice’s President Lloyd Logue, DO, even allegedly coordinated a meeting with Envision, according to court documents.

“In July and August 2019, Browning had an ongoing and continuous discussion by text message with Logue about the future of Bay Radiology and its financial situation. In these texts, Logue told Browning that: ‘The practice as we know it will be done.’”

On Aug. 21, 2019, Browning informed Logue he needed time off for a “significant medical situation with his family, unmet childcare needs, and a personal medical issue.” But Bay Radiology allegedly told him that an unapproved absence would amount to “job abandonment,” demanding an independent doctor’s note. Browning had reportedly been treated by a doc since May 2019 for a GI-related problem impacting his ability to practice. He later secured the note and submitted the required medical papers, but Bay Radiology reportedly did not approve the FMLA request.

“Instead, Bay Radiology requested a second or third medical opinion and stated that Browning would have to have a fitness-for-duty exam to return to work,” court documents state. “Logue was concerned about Browning’s FMLA request, as were all the partners according to Logue. In his experience, this GI problem would not impair someone’s ability to be a radiologist.”

Browning later requested child bonding leave, which was approved on Sept. 12, 2019. But leaders at Bay Radiology received reports that the radiologist was in the process of joining Envision during his time out. Logue later found that Browning was on the shift schedule to be working for Envision the week of Sept. 24, leading to his termination.

“Regardless, Bay Radiology did not contact Gulf Coast, Browning, Envision, or any other person to confirm why Browning was on the schedule before they terminated him,” Browning had claimed. “Instead, based on the schedule, Bay Radiology determined that Browning was in violation of his employment contract. The partners voted to terminate Browning immediately for cause. They did not provide him any notice of a breach of contract or any notice whatsoever. And they terminated him knowing that Browning had requested FMLA leave.”

Browning started providing temporary locum tenens services to Envision on Sept. 24, 2019. He finalized his contract after the firing and as a result was forced to pay $28,375 for tail insurance, which he unsuccessfully sought in court.

Law360 first reported news of the case. You can read their coverage of the decision here (subscription required).