(Missouri Independent) – Allegations that Scotland County Hospital fired a chief executive officer during an illegal closed meeting aren’t enough to make a case that there was a conspiracy against the officer, attorneys for the hospital argued Wednesday.
Statements made in that August 2022 meeting are protected because they were among officials of the hospital, attorney Andrew Kinghorn said during a Scotland County Circuit Court hearing on whether a lawsuit filed by Dr. Randy Tobler, the former CEO, should be dismissed.
“A discussion of a personnel matter among officers of the business is considered to be in the regular course of business because it involves a personnel matter, not because of the location or specific forum where it occurred,” Kinghorn said. “It doesn’t matter if it was in a closed session.”
Kinghorn represents Achim Hoyal, charged in the lawsuit with defamation, conspiracy to remove Tobler and interference with his business treating patients. Hoyal is the only individual named in the lawsuit that accuses the hospital of violating the Missouri Sunshine Law in addition to being a party to the counts that name Hoyal.
The lawsuit is one of two facing the financially troubled hospital in Memphis, Missouri, that an audit in March 2022 warned may fail. Run by a five-member elected board, the hospital has reported operating losses since 2018. The hospital is a primary source of care for a five-county region, where it operates three outpatient clinics in addition to its inpatient facility
Hoyal and the hospital want Scotland County Circuit Judge Rick Roberts to dismiss everything in the lawsuit except the allegations that the board violated the Sunshine Law. At the end of the half-hour hearing, Roberts said he intended to rule next week.
In response to the arguments from Kinghorn and Eric Packel, who represents the hospital, Tobler’s attorney, Ryan Harding, said they were misreading the legal doctrine that protects officers of a business as they discuss an employee.
The communication must occur in the normal course of business, Harding said.
“Nothing about the meeting here was normal,” Harding said.
The events at the heart of Tobler’s suit occurred in mid-August of last year when the board met on successive days in emergency closed sessions without any public notice. According to the minutes of a closed meeting on the evening of Aug. 15, held at the home of board chair Lori Fulk and deliberately excluding two members, the board received a financial report “with concerns of malicious impropriety and content.”
The lawsuit states that Hoyal accused Tobler of violating the federal anti-kickback statute known as the Stark Law in the pharmacy program.
“That evening, a vast conspiracy was laid out,” board vice chair Joni Lloyd said shortly before resigning during a Sept. 27 board meeting.
After the meeting, Tobler, an obstetrician and gynecologist, was barred from the hospital and blocked from treating patients, including one who had just undergone a cesarean birth.
The Sunshine Law violations alleged in the lawsuit argue that the Aug. 15 meeting and a second closed meeting the next day were called with little or no public notice and without stating a reason in the minutes for that failure.
It was in those meetings, the lawsuits states, where Hoyal claimed Tobler “embezzled” money through the hospital’s daycare and pharmacy.
Even if everything Tobler states in his filings are true, the hospital is immune from a lawsuit for its actions, Packel said.
Hoyal was an agent of the hospital when he made the statements to the board, Packel said. The lawsuit accuses the board of conspiring with Hoyal to end Tobler’s contract as CEO and defaming him by repeating the accusations of embezzlement and other lawbreaking.
“What they’ve tried to do is create sort of a wrongful termination case based upon alleged violations of the Sunshine Law,” Packel said.
At the time he was fired, Tobler was already planning to leave his post. Tobler began practicing at Scotland County Hospital in 2006 and became chief executive officer in 2014. Meghan Weber was being trained as his replacement and remains in charge of the hospital.
Weber and Fulk, at public meetings, after Tobler was fired, said they had reported Hoyal’s allegations to the FBI and the Inspector General at the Department of Health and Human Services and that a “forensic audit” would be conducted.
No criminal charges have been filed and no audit report testing the charges Hoyal made against Tobler has been made public.
“The hospital and Hoyal shouldn’t escape liability for the damage done to Tobler’s reputation and accusing someone of stealing money from their employer is defamation per se,” Harding said. “There is no case that I’m familiar with where the corporate immunity doctrine was used with regard to defamation per se.”
(Photo by Rudi Keller – Missouri Independent)
