United States District Court, D. Colorado
ORDER ON PENDING MOTIONS AND RULE 72(a)
OBJECTION
William J. Martinez United States District Judge
Plaintiff
Bruce Panczner sues Dr. Lesley A. Fraser
(“Fraser”) for medical malpractice.[1] (ECF No. 1.)
Currently before the Court are four motions and an objection
to a magistrate judge's nondispositive ruling:
• Fraser's Motion to Strike Plaintiff's Expert,
Ken Zafren, M.D., Pursuant to Fed.R.Evid. 702 (“Motion
to Strike Dr. Zafren”) (ECF No. 63);
• Panczner's F.R.E. 702 Motion to Exclude Expert
Testimony Relating to Frostbite Prevention Techniques, and
Mr. Panczner's Alleged Negligence in Contracting
Frostbite (“Comparative Negligence Motion”) (ECF
No. 64);
• Panczner's F.R.E. 702 Motion to Exclude Expert
Testimony Regarding a Local Standard of Care (“Local
Standard of Care Motion”) (ECF No. 65);
• Panczner's Motion for Summary Judgment as to
Defendant's Comparative Negligence Defense
(“Summary Judgment Motion”) (ECF No. 91); and
• Fraser's Objection to Magistrate's Order
Denying Defendant's Motion to Strike Dr. O'Brien
(“Rule 72(a) Objection”) (ECF No. 99), which is
directed at the September 14, 2018 order entered by U.S.
Magistrate Judge Gordon P. Gallagher (ECF No. 95) denying
Fraser's Motion to Strike Plaintiff's Untimely
Disclosed Expert Witness, John O'Brien, M.D.
(“Motion to Strike Dr. O'Brien”) (ECF No.
53).
As it
turns out, these motions and the objection are interrelated
in many ways. For the reasons explained below, the Court:
denies the Motion to Strike Dr. Zafren; grants the Local
Standard of Care Motion, which in turn requires vacating
Judge Gallagher's September 14, 2018 order, and therefore
denies the Rule 72(a) Objection as moot; grants the Summary
Judgment Motion, and in turn denies the Comparative
Negligence Motion as moot, given that it differs from the
Summary Judgment Motion only in form, not in substance.
Finally, in the interest of justice, the Court will reopen
expert discovery so that Fraser may remedy the flaws in his
expert testimony that will become apparent below.
I.
LEGAL STANDARDS
Most of
the pending motions are nominally brought under Federal Rule
of Evidence 702, governing admissibility of expert testimony.
But none of these motions raises a true Rule 702 issue. They
raise, instead, matters particular to medical malpractice
under Colorado law. The Court will therefore reserve the
controlling standards for the sections in which they are
applied.
In a
similar vein, the Summary Judgment Motion has little to do
with Federal Rule of Civil Procedure 56. It instead presents
a purely legal argument. Thus, the typical Rule 56 standard
is irrelevant.
Finally,
the Court would normally review Judge Gallagher's order
under a “clearly erroneous or contrary to law”
standard. Fed.R.Civ.P. 72(a). However, certain other rulings
in this order eliminate a crucial predicate of the
Judge's order, so no review is needed. The Court will
vacate this order as moot.
II.
BACKGROUND
The
basic facts are undisputed. On February 9, 2016, Panczner and
two friends rented snowmobiles from an outfitter near Aspen,
intending to reach a backcountry hut. But their snowmobiles
repeatedly got stuck in deep snow. While digging them out,
Panczner's boots filled with snow.
Panczner
and his friends could not make it to their destination. They
abandoned their snowmobiles and spent a night in a snow cave.
They were rescued the next morning, February 10, 2016.
Panczner was immediately transported to Aspen Valley Hospital
and diagnosed with severe frostbite on his toes and feet. An
emergency room physician began a “rapid
rewarming” procedure using hot water, and Panczner was
admitted to the hospital under the care of Fraser, a general
surgeon.
The
following morning, February 11, Panczner asked Fraser about
“tissue plasminogen activator” (tPA) treatment,
which Panczner had learned about through Internet research
while at the hospital, and which reportedly showed promise to
decrease the likelihood of tissue loss from
frostbite.[2] Panczner further noted that the burn
center at the University of Colorado Hospital (Anschutz
campus) in Denver knew how to administer tPA for frostbite
injuries. Fraser first told Panczner that there was no
treatment in Denver that was not available in Aspen. But
Fraser soon after contacted the burn center at University of
Colorado Hospital, learned for the first time about tPA, and
concluded that Panczner should be transported as soon as
possible for that treatment.
A
Flight-for-Life helicopter delivered Panczner to the
University of Colorado Hospital in the afternoon of February
11, 2016, but by that time it was too late for tPA to have a
beneficial effect. Eventually, doctors amputated all of
Panczner's toes and parts of both forefeet.
Panczner
now sues Fraser, claiming that, had he been timely
administered tPA, he would have needed no or fewer
amputations. Panczner does not claim that Fraser
committed malpractice by failing to know about tPA as a
frostbite treatment before Panczner arrived at Aspen Valley
Hospital, but rather that Fraser had a duty, upon admitting
Panczner as a frostbite patient, to inquire whether better
treatments had been developed since Fraser had last been
trained on frostbite care.
III.
ANALYSIS
A.
Motion to Strike Dr. Zafren (ECF No. 63)
Panczner
has disclosed Dr. Ken Zafren as a retained expert. (ECF No.
53-4 at 1.) Panczner offers Dr. Zafren as “a
board-certified emergency medicine physician with extensive
experience in frostbite treatment. He has been retained to
provide expert testimony in the field of frostbite
treatment.” (Id.)
Fraser
moves to strike Dr. Zafren's expected expert testimony
because Dr. Zafren is an emergency medicine specialist, not a
general surgeon like Dr. Fraser. Fraser relies on the
following Colorado statute governing medical expert
testimony, including cross-specialty testimony, in medical
malpractice cases:
No person shall be qualified to testify as an expert witness
concerning issues of negligence in any medical malpractice
action or proceeding against a physician unless he not only
is a licensed physician but can demonstrate by competent
evidence that, as a result of training, education, knowledge,
and experience in the evaluation, diagnosis, and treatment of
the disease or injury which is the subject matter of the
action or proceeding against the physician defendant, he was
substantially familiar with applicable standards of care and
practice as they relate to the act or omission which is the
subject of the claim on the date of the incident. The court
shall not permit an expert in one medical subspecialty to
testify against a physician in another medical subspecialty
unless, in addition to such a showing of substantial
familiarity, there is a showing that the standards of care
and practice in the two fields are similar. The limitations
in this section shall not apply to expert witnesses
testifying as to the degree or permanency of medical or
physical impairment.
Colo. Rev. Stat. § 13-64-401.[3]
Fraser
focuses on the second-to-last sentence, requiring “a
showing that the standards of care and practice in the two
fields are similar.” Fraser cites deposition testimony
establishing that Dr. Zafren has never practiced general
surgery, is not familiar with how frostbite treatment is
taught to general surgeons, and so forth. (ECF No. 63 at 5.)
Accordingly, Fraser argues that Dr. Zafren is
“unqualified to opine about general surgery standard of
care issues.” (Id. at 4-5.)
Panczner
responds that Fraser is misreading the statute to mean that
Dr. Zafren must be qualified to discuss the standard of care
for general surgeons in all contexts. (ECF No. 81 at 12.)
Panczner argues that the statute's phrase “a
showing that the standards of care and practice in the two
fields are similar” should be read as implying a clause
from its preceding sentence, so that the requirement is more
accurately articulated as “a showing that the standards
of care and practice in the two fields are similar as to the
disease or injury which is the subject of the claim.”
(Id. at 12.)
The
Court need not resolve the parties' dispute over the
statute's meaning in light of Panczner's theory of
liability and Dr. Zafren's actual opinion. Panczner
“acknowledges that in February 2016[, ] [Fraser] was
not aware of tPA as a potential frostbite treatment, and [Dr.
Zafren does not] fault [Fraser] for this initial lack of
knowledge.” (ECF No. 88 ¶ 2.) In other words,
Panczner does not argue that the general surgery standard of
care in February 2016 required use of tPA to treat frostbite.
Panczner's theory, rather, is that Fraser “had an
affirmative duty to take timely steps to become aware of this
treatment, either by conducting medical research, or by
contacting a frostbite expert.” (Id. ¶
3.) According to Panczner, therefore, when Fraser admitted
him for frostbite treatment, the standard of care required
Fraser to determine if there was something more he should
know about frostbite treatment.
Panczner
supports his view with Dr. Zafren's report, where he
frames the duty as one imposed on all physicians who
undertake care for “any condition”:
As for any condition, a physician, regardless of specialty,
who treats a patient for frostbite, must either be an expert
in the evaluation and treatment of frostbite by education,
training, experience and knowledge of the current literature
or must consult with an expert in the management of
frostbite. The questions to be answered by the consultation
include the choice of appropriate treatment and whether care
of the patient should be transferred to the physician being
consulted or to another physician.
(ECF No. 81-5 at 8; see also ECF No. 81 at 6.) Dr.
Zafren elaborated on this opinion in the following exchange
during his deposition:
Q. . . . if you're not alerted to a change in therapy in
a particular area, it's often difficult for a person to
be aware that there's a change because they have no
...