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Panczner v. Fraser

United States District Court, D. Colorado

March 11, 2019

LESLEY A. FRASER, M.D., Defendant.


          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.


         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.


         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 ...

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