Doc sues Waller Lansden attorney for malpractice

Partner with prominent firm called into question over handling of CON quagmire

Email | Print By Walker Duncan

Kim Harvey Looney

Claims of legal malpractice against Waller Lansden Dortch & Davis and one of its partners have arisen from a 2007 Certificate of Need case involving battling radiology groups.

Dr. David McCord has filed a lawsuit in Davidson County Chancery Court accusing Waller Lansden’s Kim Harvey Looney of malpractice in her handling of a failed partnership between Next Generation Imaging and Premier Radiology and their subsequent quest to regain their own CON.

In January of ‘07, NashvillePost.com brought you the battle between Next Generation and former partner Premier Radiology. The two entities had previously joined forces to provide the upright imaging service and had even been granted a CON by the HSDA.

Negotiations between the two sides failed and the partnership faltered, but the CON remained on the books under the joint venture's name, Premier Open Stand Up MRI LLC or "POSUM."

With the two sides now vying for the very CON they jointly held, Looney continued to represent McCord and Next Generation.

Looney filed a second CON application, this time on behalf of Next Generation. At the time, the filing claims, she informed the HSDA that Premier’s company RADS III was no longer seeking a CON and requested that the Next Generation CON be substituted for the current certificate for POSUM.

That same day, Premier Upright MRI, “a new company formed by some if not all of the members of RADS III” filed a similar CON application.

In September of ’06, issues arose over conflicts of interest as it appeared that HCA might file an objection to Next Generation’s application, which would prohibit Looney from representing McCord’s company at the hearing because HCA is one of Waller’s clients. McCord claims he was forced to narrow the scope of the Next Generation project in order to clear any objections from HCA.

Both Next Generation and Premier’s applications were rejected.

Looney filed an appeal, which according to the HSDA’s general counsel seemed to “lack any basis.” He went to say that the HSDA would file a motion for summary judgment that would include documentation “detailing every step of how things have gone from an approved project that could have been up and running by now to a messy divorce and attempts to exclude RADS from the project..."

Next, McCord claims, Keith Dennen of Bone McAllester Norton informed Looney that she could file to dissolve POSUM and clear up the pre-existing CON issue. According to the lawsuit, Looney refused, claiming a conflict of interest with Premier.

McCord then opted for new representation, bringing in Keith Dennen and Rachel Nelley, both of Bone McAllester Norton.

According to the lawsuit, McCord’s newly enlisted attorneys – Malcolm McCune and Matthew Zenner of Blackburn & McCune – advised him to file a petition for dissolution of POSUM in chancery court if he had any hope for his pending CON applications’ success.

Following the petition, the dissolution of POSUM, and the surrendering of the original CONs in early April of last year, Next Generation was unanimously granted a new CON by the HSDA later that month.

McCord claims that Looney’s handling of the matter amounts to legal malpractice, stating that potential conflicts should have been anticipated and that the repeated futile CON applications resulted in unnecessary legal fees, lost revenue and delays in finally obtaining a CON.

The complaint asks that legal fees paid to Looney and Waller Lansden be forfeited, as well as compensatory damages not to exceed $800,000.

Waller Chairman John Tishler told NashvillePost.com via e-mail that his firm believes "the claim is without merit, and we will vigorously defend it."