MIDWEST PAIN INSTITUTE CENTER FOR MINIMALLY INVASIVE SPINE, P.C. v. REMLEY

Filing 51

ORDER granting in part and denying in part 38 Dr. Remley's Motion for Summary Judgment. The case shall proceed accordingly towards a final resolution of these issues. Signed by Judge Sarah Evans Barker on 6/19/2017. (CBU)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
MIDWEST PAIN INSTITUTE CENTER FOR )
MINIMALLY INVASIVE SPINE, P.C.,
)
)
Plaintiff,
)
)
vs.
)
)
KENT B. REMLEY, M.D.,
)
Defendant.
______________________________________ )
)
)
KENT B. REMLEY,
)
Counter Claimant,
)
)
vs.
)
MIDWEST PAIN INSTITUTE CENTER FOR )
)
MINIMALLY INVASIVE SPINE, P.C.,
)
Counter Defendant.

No. 1:15-cv-01891-SEB-TAB

ORDER ON DEFENDANT/COUNTER CLAIMANT’S
MOTION FOR SUMMARY JUDGMENT
The matter is before us on Defendant/Counter Claimant Kent B. Remley, M.D.’s
Motion for Summary Judgment. [Dkt. No. 38.] Plaintiff/Counter Defendant has responded
in opposition. For the following reasons we GRANT IN PART and DENY IN PART
Defendant’s Motion.
This case involves an employment dispute between Dr. Remley and Midwest Pain
Institute Center for Minimally Invasive Spine, P.C. (“Midwest” or “MPI”). Although
several provisions of the Employment Agreement are at issue, the crux of this case is

whether Dr. Remley was responsible for a share of Midwest’s operating expenses or
whether those expenses were to be borne exclusively by Midwest.
Facts
The Parties’ Relationship
The parties entered into an Employment Agreement effective July 1, 2014
(“Employment Agreement” or “Agreement”). 1 Their dispute has arisen over the parties’
duties and obligations with respect to three aspects of the Employment Agreement, to wit,
Midwest’s obligation to provide Dr. Remley with “attendants, facilities and services
suitable to his specialty/ies and adequate for Employee’s provision of services pursuant to
this Agreement” [§ 3.2(a)], Midwest’s obligation to provide monthly calculations of Dr.
Remley’s “Net Collections” [§ 4.4], and Dr. Remley’s financial obligations to Midwest.
Midwest was founded in 2001 by Dr. Steven Levine. [Declaration of Dr. Steven
Levine (“Levine Decl.”) ¶ 1.] Dr. Levine created Midwest to offer minimally invasive
procedures and treatment for the relief of acute and chronic back and spinal pain. [Id. ¶ 2.]
Prior to joining Midwest, Dr. Remley practiced interventional pain management and
minimally invasive spine surgery at Community Westview Hospital in Indianapolis.
[Affidavit of Kent B. Remley (“Remley Aff.”) ¶ 2.] From late 2013 to mid-2014, Dr.
Remley, Dr. Levine, and Midwest’s practice administrator at the time, Andy Griffiths, had
on-going conversations about Midwest, the types of services it offered, and the nature of

1

Dr. Remley contends that the Employment Agreement was meant to be effective as of August 1,
2014, but that the document was not revised to reflect the agreement between the parties. Midwest
acknowledges Dr. Remley’s statement, but does not take a position as to its accuracy. [See Dkt.
No. 44 at 4.]

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its financial arrangements with physicians who worked there. [Levine Decl. ¶ 5.] Dr.
Levine and Dr. Remley discussed Dr. Remley’s practice and the types of procedures he
performed. According to Dr. Levine, he explained to Dr. Remley the financial details of
practicing at Midwest, cautioning him not to enter into any agreement with Midwest
lightly, on the grounds that both Dr. Remley’s livelihood and Midwest’s profitability would
require his active and diligent participation to cover his expenses. [Id. ¶ 6.] These
discussions culminated in the execution of the Employment Agreement.
Dr. Remley announced his resignation from Midwest in May, effective July 1, 2015.
Midwest contends that by the end of May 2015, Dr. Remley’s overall deficit in payments
for direct and overhead expenses exceeded his collections by $367,980.09. Dr. Remley,
on the other hand, contends that he owes nothing to Midwest and, indeed, that Midwest
owes him $129,056.62.
The Employment Agreement
Attendants and Facilities
The Employment Agreement requires Midwest to provide “attendants” and
“facilities” sufficient for Dr. Remley to perform his services. Specifically, Section 3.2 of
the Employment Agreement provides:
Employer’s Responsibilities. Employer shall during and with respect to
the term of employment:
a) Provide to Employee an office/work area, stenographic help, and such
other attendants, facilities and services suitable to his specialty/ies and
adequate for Employee’s provision of services pursuant to this
Agreement; . . .

3

According to Dr. Remley, despite Midwest’s familiarity with his practice, “MPI
failed to provide the necessary equipment and nursing assistance necessary for Remley to
fully practice medicine in MPI’s facilities consistent with the applicable standard of care.”
[Dkt. No. 39 at 2, ¶ 4.] Dr. Remley explains that his practice is focused on managing pain
through “image guided injection procedures in the spine and joints to treat acute and
chronic pain.” [Id. at 4.] His in-office pain management techniques require the assistance
of a nurse practitioner (“NP”) or registered nurse (“RN”), which Midwest did not provide,
“dramatically constrain[ing] . . . his ability to practice interventional pain management.”
[Id. at 4, 2.]
Midwest denies Dr. Remley’s contentions. According to Midwest, it did not have
an NP or RN on staff immediately before or during Dr. Remley’s employment.
[Declaration of Sharyl Border, Midwest Practice Administrator (“Border Decl.”) at ¶ 11;
Levine Decl. ¶ 8.] Because neither Dr. Levine nor Dr. Hall, the other doctor practicing at
Midwest, required the assistance of an NP or RN, Ms. Border informed Dr. Remley that he
would have to bear the full cost of employing a nurse. [Border Decl. ¶ 11.] Dr. Remley
elected to perform his sedation procedures at a hospital or surgery center instead of having
Midwest hire an NP or RN. [Id.]
Dr. Remley also alleges that his pain management treatment requires the use of
fluoroscopic equipment to obtain useful images during the insertion of needles and
therapeutic materials into various parts of the body. [Dkt. No. 39 at 4-5.] It is Dr. Remley’s
contention that the equipment Midwest made available to him was sub-optimal and
supplies were either unavailable or expired. [Id. at 5.]
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Midwest rejoins that it regularly ordered the supplies requested by Dr. Remley,
which were charged to him as direct expenses and which Dr. Remley took with him when
he left Midwest. [Border Decl. ¶ 12.] According to Ms. Border and Dr. Levine, Dr.
Remley never expressed concern with the quality of Midwest’s equipment, including the
fluoroscopic equipment, which was maintained and immediately repaired when needed.
[Id. ¶ 13; Levine Decl. ¶ 9.]
Operating/Overhead Expenses
The financial arrangement between the parties is set out in several sections of the
Employment Agreement and its Exhibit A. As a starting point, Dr. Remley’s salary is set
forth in Exhibit A and § 4.2 of the Agreement requiring “[Midwest to] pay [Dr. Remley]
during the term of employment the annualized salary specified on Exhibit A Section 4 (a),”
subject to certain withholdings and deficits owed. [Agreement § 4.2.] Dr. Remley is
entitled to (or liable for) Additional Payments as follows:
4.3 Additional Payments. With respect to each full or partial Calendar
Quarter during which Employee is employed by Employer, if Net
Employee Collections for that Calendar Quarter are positive, then any
Accumulated Net Collections Deficit of Employee shall be deducted from
such positive number (and retained by Employer), and if after such
deduction a positive amount of Net Employee Collections remains, then
such remainder shall be paid to Employee on or before the thirtieth (30th)
day following the end of the applicable Calendar Quarter or as otherwise
agreed by the parties (each an “Additional Payment”). Any Additional
Payments payable under this Agreement shall be in addition to the Salary.
Additional Payments shall be subject to withholdings and deductions.
Midwest is owed payments from Dr. Remley in “an amount equal to any thencurrent Accumulated Net Collections Deficit.”

[Agreement § 4.8.]

The terms

“Accumulated Net Collections Deficit of Employee” and “Net Employee Collections” are
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used to determine whether Dr. Remley had a positive sum from his practice expenses and
collections (which are paid to him as described above) or whether Dr. Remley was in the
red and indebted to Midwest. Those terms are defined in the Agreement as follows:
a) “Accumulated Net Collections Deficit” means at any given time the
negative sum of (i) all negative Net Employee Collections amounts for
all applicable prior Calendar Quarters (expressed as a negative number),
plus all positive Net Employee Collections amounts for all applicable
prior Calendar Quarters, plus all prior Accumulated Net Collections
Deficit amounts repaid by Employee to Employer pursuant to Section 4.8,
minus all Additional Payments paid or payable to Employee with respect
to all applicable prior Calendar Quarters. For the avoidance of doubt, the
parties acknowledge and agree that if at any given time the sum yielded
by the foregoing equation is a positive number, there is no then-applicable
Accumulated Net Collections Deficit.
...
e) “Net Employee Collections” means the positive or negative sum of
(a) Employee Collections for the applicable period, minus (b) Direct
Provider Physician Expenses attributable to Employee for the applicable
period, minus (c) Employee’s applicable portion of NP and PA Expenses
for the applicable period.
[Agreement §§ 4.1(a) and (e).]
“Direct Provider Physician Expenses” and “NP and PA Expenses” are part of the
Net Employee Collections Calculation and defined in the Agreement as follows:
c) “Direct Provider Physician Expenses” means costs and expenses
incurred during the applicable period and directly attributed by Employer
to a Provider Physician, including for purposes of illustration only and
not for purposes of specific inclusion or limitation, the portion paid or
reimbursed by Employer of Provider Physician’s salary and other
compensation, employee benefits costs, insurance costs, vehicle
expenses, travel expenses, phone and communications expenses,

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continuing education expenses, and other costs and expenses directly
attributable to a Provider Physician. 2
...
g) “NP and PA Expenses” means costs and expenses incurred during the
applicable period and directly attributed by Employer to a nurse
practitioner or physician’s assistant, including for purposes of illustration
only and not for purposes of specific inclusion or limitation, the portion
paid or reimbursed by Employer of such person’s salary and other
compensation, employee benefits costs, insurance costs, car expenses,
phone and communications expenses, continuing education expenses,
and other costs and expenses directly attributable to such person. 3
[Id. §§ 4.1(c) and (g).] Finally, Exhibit A to the Employment Agreement provides
the following agreement with respect to general allocation expenses.
5. Special Considerations for New Employee:
a. General Allocation Expenses will be attributed to Employee
through a graduated process as follows:
i. Month one (1) Fifteen percent (15%) of general allocation
expenses of Corporation plus direct Employee expenses
attributable them.
ii. Month two (2) Twenty percent (20%) of general allocation
expenses of Corporation plus direct Employee expenses
attributable them.
iii. Month three (3) Twenty Five percent (25%) of general
allocation expenses of Corporation plus direct Employee
expenses attributable them.

2

Midwest, in its sole discretion, classifies “expenses for tax or accounting purposes or for purposes
of [the Employment Agreement] (for example, which expenses to include as Direct Provider
Physician Expenses and which expenses to treat as Operating Expenses)” as well as allocating
expenses and revenue between Provider Physicians. [Employment Agreement § 4.5.]

3

The Agreement defines “NP and PA Revenues” as the revenues actually collected by Midwest
which are directly attributable to NP and PA services rendered. [Agreement ¶ 4.1(h).]

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iv. Month four (4) Thirty Three percent (33.33%) of general
allocation expenses of Corporation plus direct Employee
expenses attributable them.
v. Month five (5) Normal general allocation expenses of
Corporation plus direct Employee expenses attributable them.
vi. Once Employee pays off any debt from LOC draw for salary
they can then be eligible for Stock Ownership and Addition
Payments per Section 6 and 7 of Exhibit A.
Financial Reporting Requirements
The Employment Agreement requires Midwest to provide Dr. Remley with monthly
calculations of his Employee Net Collections for each prior month and his Accumulated
Net Collections Deficit as of the last day of each prior month. [Employment Agreement
§ 4.4.] Dr. Remley contends that Midwest failed to provide the financial information
required by section 4.4 of the Employment Agreement.
Midwest does not dispute Dr. Remley’s contention. It explains, however, that in the
later part of 2014 Midwest hired Ms. Border as an accountant and new practice
administrator to update and correct its financial statements which were, in Midwest’s
words, “in poor shape.” In December 2014, Ms. Border provided copies of the requisite
financial statements for July through November 2014. [Border Decl. ¶ 6.] At that time,
according to Midwest’s statements, Dr. Remley owed Midwest $193,437.59. [Id.]
Standard of Review
Summary judgment is appropriate when the record before the Court establishes that
there is “no genuine issue as to any material fact and that the moving party is entitled to
a judgment as a matter of law.” Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986). Disputes concerning material facts are genuine where the
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evidence is such that a reasonable jury could return a verdict for the non-moving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In deciding whether genuine
issues of material fact exist, the Court construes all facts in a light most favorable to the
non-moving party and draws all reasonable inferences in favor of the non-moving
party. Id. at 255. However, neither the “mere existence of some alleged factual dispute
between the parties,” nor the existence of “some metaphysical doubt as to the material
facts,” will defeat a motion for summary judgment. Michas v. Health Cost Controls of
Ill., Inc., 209 F.3d 687, 692 (7th Cir. 2000) (internal citations omitted).
The moving party “bears the initial responsibility of informing the district court
of the basis for its motion, and identifying those portions of [the record] which it believes
demonstrate the absence of a genuine issue of material fact.” Celotex, 477 U.S. at 323.
The party seeking summary judgment on a claim on which the non-moving party bears the
burden of proof at trial may discharge its burden by showing an absence of evidence to
support the non-moving party’s case. Id. at 325; Doe v. R.R. Donnelley & Sons, Co.,
42 F.3d 439, 443 (7th Cir. 1994). Summary judgment is not a substitute for a trial on
the merits, nor is it a vehicle for resolving factual disputes. Waldridge v. Am. Hoechst
Corp., 24 F.3d 918, 920 (7th Cir. 1994). But, if it is clear that a plaintiff will be unable
to satisfy the legal requirements necessary to establish his or her case, summary judgment
is not only appropriate, but mandated. Celotex, 477 U.S. at 322; Ziliak v. AstraZeneca LP,
324 F.3d 518, 520 (7th Cir. 2003).

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Discussion
Dr. Remley’s claim focuses on three main contentions: (1) that Midwest’s attempt
to collect operating expenses from him is unsupported by the parties’ Agreement; (2) that
Midwest failed to provide him with the equipment and nursing assistance necessary for
him to practice his area of medicine; and (3) that Midwest did not timely produce the
financial records required by the Agreement.
“Where there are no genuine issues of material fact, contract interpretation is
particularly well-suited for summary judgment.” Allstate Ins. Co. v. Tozer, 392 F.3d 950,
952 (7th Cir. 2004); see also Eckart v. Davis, 631 N.E.2d 494, 497 (Ind. Ct. App. 1994)
(holding that the interpretation or legal effect of a contract is a question of law to be
determined by the court). “A plaintiff moving for partial summary judgment on the issue
of liability in a breach of contract claim initially must ‘show’ only that there is no genuine
issue of fact regarding the liability elements of its claim.” Pantry, Inc. v. Stop-N-Go Foods,
Inc., 796 F. Supp. 1164, 1167 (S.D. Ind. 1992).
The primary purpose of contract construction is to determine the “mutual intention
of the parties.” Hutchinson, Shockey, Erley & Co. v. Evansville–Vanderburgh Cty. Bldg.
Auth., 644 N.E.2d 1228, 1231 (Ind. 1994). Such intent is discerned as of the time the
contract was made and by considering the language used by the parties to express their
rights and duties. INB Banking Co. v. Opportunity Options, Inc., 598 N.E.2d 580, 582
(Ind. Ct. App. 1992). The first step in discovering intent is to gather meaning from the
“four corners” of the written document. Kutche Chevrolet-Oldsmobile-Pontiac-Buick, Inc.
v. Anderson Bank. Co., 597 N.E.2d 1307, 1309 (Ind. Ct. App. 1992). Courts must give
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words their plain and usual meaning, unless review of the contract as a whole reveals some
other meaning was intended. INB Banking Co., 598 N.E.2d at 582. We may not construe
unambiguous language to give it anything other than its clear, obvious meaning, and we
may not add provisions to a contract that were not placed there by the parties. Simon Prop.
Group, L.P. v. Michigan Sporting Goods Distrib., Inc., 837 N.E.2d 1058, 1070 (Ind. Ct.
App. 2005) (citing Art Country Squire, L.L.C. v. Inland Mortg. Corp., 745 N.E.2d 885, 889
(Ind. Ct. App. 2001)). Dr. Remley contends that there is no ambiguity in the Employment
Agreement. [Dkt. No. 39 at 9-10.]
A.

Overhead Costs/Operating Expenses
It is Dr. Remley’s position that he is under no obligation to pay any portion of

Midwest’s “Operating Expenses” on the grounds that no provision of the Employment
Agreement authorizes Midwest to charge him for those costs. In response, Midwest
accuses Dr. Remley of ignoring Exhibit A to the Employment Agreement (“Exhibit A”),
which sets forth the process for allocating general overhead expenses to him.
The term “Operating Expenses” is defined in the Agreement as “all costs and
expenses of [Midwest] . . . that are not classified by [Midwest] as Direct Provider Physician
Expenses or as NP and PA Expenses.” [Agreement § 4.1(i).] Section 4.5 of the Agreement
authorizes Midwest to classify, “in its sole and reasonable discretion,” expenses, for
example, “for tax or accounting purposes or for purposes of this Agreement”, which
expenses are Direct Provider Physician Expenses and which are treated as Operating
Expenses. These are the only two uses of the term “Operating Expenses” in the Agreement.
Accordingly, Dr. Remley is correct that the Employment Agreement does not expressly
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impose on him a duty to pay “Operating Expenses” as that term is defined in the
Agreement. [See Agreement § 4.1(a) (Operating Expenses not among “Accumulated Net
Collections Deficit”; § 4.1(e) (not included in “Net Employee Collections); § 4.3 (not
included in “Additional Payments”).] Midwest does not explicitly disagree, but cites
Exhibit A as its basis for collecting operating expenses from Dr. Remley.
As quoted above, § 5 of Exhibit A provides: “General Allocation Expenses will be
attributed to Employee through a graduated process as follows:”, which increases from
15% to 33.33% over a period of four months, “plus direct Employee expenses attributable
them.” “Direct Employee expenses” is not a term defined in the Agreement or Exhibit A.
It is Dr. Remley’s position that Exhibit A’s use of the term “General Allocation Expenses”
refers to “Direct Provider Physician Expenses” in § 4.1(c) of the Agreement. He argues
that Midwest would aggregate the doctors’ Direct Provider Physician Expenses and then
divide the total cost among the doctors. Dr. Remley’s percentage share of those costs were
to increase over the first four months of his employ, leveling off at 33.33%. We are not
persuaded by this approach.
The plain language of Exhibit A states that General Allocation Expenses are taxed
in addition to “direct Employee expenses attributable [to Dr. Remley].” [Ex. A.] Exhibit
A references two costs to be assessed to Dr. Remley: general expenses and direct expenses.
Dr. Remley’s argument that “General Allocation Expenses” refers to the method of
allocating Direct Provider Physician Expenses ignores that General Allocation Expenses
are in addition to (i.e., not identical to) direct Employee Expenses. Nowhere in the parties’

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Agreement is language aggregating direct expenses which are then allocated among the
Provider Physicians.
The logical interpretation and harmonization of the Agreement’s use of the terms
Direct Provider Physician Expenses, Per Physician Allocation, 4 Operating Expenses, direct
Employee expenses, and General Allocation Expenses is that there are some expenses
directly attributed to a specific physician, i.e., Direct Provider Physician Expenses, NP and
PA Expenses, and direct Employee expenses, which are specifically accounted for in the
calculation of Net Employee Collections, and there are other general overhead expenses,
which are distributed among the physicians pursuant to Exhibit A and the Per Physician
Allocation.

To hold otherwise would contravene Indiana law and make Exhibit A

meaningless. See Hammerstone v. Ind. Ins. Co., 986 N.E.2d 841, 846 (Ind. Ct. App. 2013)
(“A court should construe the language of a contract so as not to render any words, phrases,
or terms ineffective or meaningless.) (citation omitted). Because the General Allocation
Expenses referenced in Exhibit A and “attributed to” Dr. Remley must have some meaning
separate and apart from the other direct expenses charged to him, we reject Dr. Remley’s
contention that he is not responsible for overhead or operating expenses. Dr. Remley is
responsible for General Allocation Expenses referenced in Exhibit A in addition to Direct

4

Neither party addresses the term “Per Physician Allocation” [Agreement § 4.1(f)], defined by the
Agreement as “a fraction equal to one (1), divided by the number of” Provider Physicians. The
definition affords Midwest the discretion to alter the percentages for part-time Provider Physicians.
The term Per Physician Allocation is not used in the Agreement. We interpret § 5 of Exhibit A to
set forth the specific allocation percentage assigned to Dr. Remley at start of his employment which
then transitioned to the “normal general allocation expenses of [Midwest]”, described in § 4.1(f)
as “Per Physician Allocation.”

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Provider Physician Expenses. For these reasons, we DENY Dr. Remley’s Motion for
Summary Judgment on this issue.
B.

B.
Midwest’s Alleged Failure to Provide an NP or RN, Proper Equipment
and Supplies, and Financial Reports
Dr. Remley also seeks summary judgment on his claim that Midwest breached the

Employment Agreement when it failed to employ a nurse practitioner or registered nurse
and provide adequate equipment and supplies as required by § 3.2 of the Agreement and
that Midwest did not provide him with financial reports as agreed in § 4.4. Dr. Remley
does not argue that any of these breaches was material and does not seek, by way of his
motion for summary judgment, any damages related to these alleged breaches.
1.

Nursing Assistance

The Employment Agreement unequivocally states that Midwest will provide
“attendants, facilities and services suitable to [Dr. Remley’s] specialty/ies and adequate for
[Dr. Remley’s] provision of services pursuant to [the Employment] Agreement.”
[Agreement § 3.2(a).] Dr. Remley’s undisputed testimony establishes that he informed Dr.
Levine of the type of care and interventional pain management procedures that he
performed and the type of guided injection procedures that he used to treat acute and
chronic pain. [Remley Aff. ¶¶ 10-11.] Dr. Remley contends that he “made it clear to
Levine that a nurse must be in place at MPI capable of assisting [him] with in-office
sedation for interventional procedures.” [Id. ¶ 14.] It is undisputed that, at the time of Dr.
Remley’s preliminary discussions with Midwest prior to executing the Employment
Agreement, Midwest had a nurse practitioner on staff; however, there was no nurse on staff

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at Midwest at the time Dr. Remley began (or ended) his employment there. [Id. ¶¶ 12, 14,
20.]
Midwest urges us to interpret § 3.2’s requirement that it provide “attendants” to be
limited to administrative support and stenographic help. Indeed, says Midwest, when the
parties meant “nurse” in other parts of the Agreement, they used the term “nurse,” and,
thus, § 3.2 must mean something other than a “nurse.” We disagree.
Although § 3.2(a) does apply in part to “stenographic help,” the attendants required
is further described in terms of those services “suitable to [Dr. Remley’s] specialty/ies and
adequate for [Dr. Remley’s] provision of services.” Because “attendants” is described in
terms of Dr. Remley’s specialties, that term means something more than general
administrative assistance. Moreover, the Employment Agreement anticipates Midwest’s
hiring of nurse practitioners and physician assistants. [Agreement §§ 4.1(g) and (h).] Dr.
Remley had made it clear that a nurse was required in order for him to perform all of his
services in Midwest’s offices and the Agreement explicitly obligated Midwest to provide
one.
Questions of fact exist, however, with respect to whether Midwest is liable for
failing to provide nursing assistance to Dr. Remley. The Employment Agreement states
that at the time it was executed, Midwest allocated NP and PA expenses and Revenues
“equally between or among the physicians who opt to utilize the services of an applicable
[NP or PA].” [Agreement § 4.5.] At the time Dr. Remley began with Midwest, Midwest
did not have an RN or NP on staff. [Border Decl. ¶ 11.] When Dr. Remley and his wife
“explored with [Ms. Border] the possibility of Midwest hiring [an RN or NP] to assist Dr.
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Remley,” Ms. Border explained, consistent with the terms of the Agreement, that Dr.
Remley would bear the full expense of the nurse because the other two practicing doctors
did not need nursing assistance. [Id.] Dr. Remley decided not to require Midwest to hire
a nurse to assist him. [Id.] Construing all facts in a light most favorable to Midwest and
drawing all reasonable inferences in favor of Midwest, because Dr. Remley declined
Midwest’s offer to hire a nurse at his expense, Dr. Remley has not proven that Midwest
breached the contract. We therefore DENY Dr. Remley’s Motion on this point.
2.

Equipment

The parties do not dispute that Midwest had an obligation to provide the necessary
supplies and equipment to Dr. Remley. However, a genuine issue of material fact exists
as to whether the equipment necessary to Dr. Remley’s practice was provided. Dr. Remley
stated in his affidavit: “Necessary medical supplies for my practice were either unavailable
in these offices or were expired and could not be used.” [Remley Aff. ¶ 24.] He also
averred that the fluoroscopic equipment in two of Midwest’s three offices was “sub
optimal” and he could not obtain adequate images to safely perform certain procedures.
[Id. ¶ 26.]
Midwest rejoins that Dr. Remley never complained to it that the fluoroscopic
equipment and materials it had purchased were inadequate. [Levine Decl. ¶ 9; Border Decl.
¶ 13.] In fact, upon his departure from Midwest, Dr. Remley took with him nearly $10,000
worth of supplies specifically related to his practice (and for which Midwest charged Dr.
Remley directly). [Border Decl. ¶ 12.]

Moreover, the fluoroscopic equipment was

promptly repaired whenever necessary. [Id. ¶ 13.] Construing all facts in a light most
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favorable to Midwest, we conclude that a genuine issue of material fact exists
precluding summary judgment on this issue and DENY Dr. Remley’s Motion on this
point.
3.

Midwest’s Failure to Provide Financial Reports

It is undisputed that Midwest failed to provide Dr. Remley with financial reports as
required under the Employment Agreement. Section 4.4 of the Agreement requires
Midwest to provide Dr. Remley with its “calculation of Employee Net Collections” (“Net
Employee Collections” is defined in § 4.1(e)) for the prior month and Dr. Remley’s
“Accumulated Net Collections Deficit (defined by § 4.1(a)) as of the last day of the prior
month. It is undisputed that Midwest did not provide Dr. Remley with these calculations
during the timeframes set forth in the Agreement.
Midwest contends that it had good reason for failing to provide Dr. Remley this data
and in any event Dr. Remley did not demand strict performance. According to Midwest,
shortly after Dr. Remley was hired its financial statements were in poor shape preventing
it from being able to provide Dr. Remley with reliable statements. Midwest hired a new
administrator to organize its financial records and, in December 2014, it provided Dr.
Remley with financial statements covering July through November 2014.

[Border

Decl.¶¶ 5-6.] Dr. Remley did not object to the delay at the time.
Midwest’s explanation for its failure to perform as agreed is irrelevant as a response
to a breach of contract claim. See Patton v. Mid-Continent Sys., Inc., 841 F.2d 742, 750
(7th Cir. 1988) (“That is, if the promisor fails to perform as agreed, he has broken his
contract even though the failure may have been beyond his power to prevent and therefore
17

in no way blameworthy.”). Likewise, Dr. Remley’s failure to object to the failure is
irrelevant. The parties expressly agreed that “[a]ny failure by either party to enforce any
right arising under this Agreement shall not be deemed a waiver of the ability to later
enforce that right.” [Agreement § 17.9.] The facts demonstrate that Midwest failed to
report financial data to Dr. Remley as required by the Agreement and Dr. Remley contends
that “[t]imely reporting . . . may have headed off the problems presented by this lawsuit.”
[Dkt. No. 39 at 10, n.1.]
Thus, we GRANT summary judgment in favor of Dr. Remley on the issue of
Midwest’s technical breach of the Employment Agreement by its failure to provide
financial reports to Dr. Remley. Whether this delay resulted in Dr. Remley’s suffering any
measurable damages we leave for another day.
Conclusion
For the reasons explicated above, we GRANT IN PART AND DENY IN PART Dr.
Remley’s Motion for Summary Judgment [Dkt. No. 38].

The case shall proceed

accordingly towards a final resolution of these issues.

6/19/2017
Date: __________

_______________________________
SARAH EVANS BARKER, JUDGE
United States District Court
Southern District of Indiana

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Distribution:
Andrew M. McNeil
BOSE MCKINNEY & EVANS, LLP
[e-mail]

Brian M. House
SKILES DETRUDE
[e-mail]

Mark Wohlford
BOSE MCKINNEY & EVANS, LLP
[e-mail]

Raymond D. Faust
STARR AUSTEN & MILLER LLP
[e-mail]

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