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Beyer Laser Center, LLC v. Polomsky

United States District Court, D. Colorado

October 25, 2019

BEYER LASER CENTER, LLC, and CRAIG F. BEYER, Plaintiffs/Counterclaim Defendants,
v.
MATEJ POLOMSKY, Defendant/Counterclaimant.

          ORDER

          MICHAEL E. HEGARTY, UNITED STATES MAGISTRATE JUDGE

         Before the Court is Defendant Matej Polomsky's Second[1] Motion for Summary Judgment (“Motion”). ECF 150. Defendant seeks summary judgment in his favor on Plaintiffs' four remaining claims: (1) defamation; (2) malicious prosecution; (3) intentional interference with an existing contractual relation; and (4) civil conspiracy.

         Defendant argues, first, Plaintiffs have presented no evidence that he caused their injuries and, second, there is no dispute that his complaint to the Colorado Medical Board was true. On these bases, Defendant argues all four of Plaintiffs' claims fail. In addition, Defendant contends that Plaintiffs' defamation and civil conspiracy claims are barred by the statute of limitations. Finally, he argues for summary judgment in his favor on his counterclaim against Plaintiffs under the Colorado Consumer Protection Act (“CCPA”). Ultimately, as addressed in a separate order, the Court concludes that Plaintiffs are entitled to summary judgment on the CCPA claim.

         For the reasons that follow, the Court will deny Defendant's Motion.

         FINDINGS OF FACT

         The Court makes the following findings of fact viewed in the light most favorable to Plaintiffs, who are the non-moving parties in this matter.

         1. Plaintiff Craig F. Beyer and Defendant Matej Polomsky are ophthalmologists. ECF 150 ¶ 1; ECF 166 ¶ 1.

         2. In 2011, Dr. Beyer hired Dr. Polomsky for a fellowship at Plaintiff Beyer Laser Center (“BLC”) that began on the completion of Dr. Polomsky's residency in the summer 2012. ECF 150 ¶ 1; ECF 166 ¶ 1.

         3. During Dr. Polomsky's fellowship, BLC used a “VISX” laser to perform laser vision correction (“LVC”) procedures. ECF 150 ¶¶ 2-3; ECF 166 ¶¶ 2-3. LVC procedures are performed to correct refractive errors of the eye. The intent of the procedure is to correct a patient's vision so he or she will no longer require glasses or contact lenses. ECF 150 ¶ 2; ECF 166 ¶ 2.

         4. The VISX laser may be operated using a number of different treatment cards. Each card provides the user with specific access to proprietary software required to operate the laser. ECF 150 ¶ 4; ECF 166 ¶ 4.

         5. Each treatment card offered different features at varied costs. ECF 150 ¶ 13; ECF 166 ¶ 13.

         6. On October 25, 2012, Dr. Richard Stewart, another ophthalmologist at BLC, filed a complaint with the Colorado Medical Board (“CMB”) accusing Dr. Beyer of obtaining patients' consent for a specific procedure and then “ultimately performing an entirely different procedure.” ECF 150-20 at 5; ECF 166 ¶ 21. In the complaint, Dr. Stewart stated that Dr. Beyer had been “substituting the PTK[2] cards for PRK/LASIK cards and passing this off to patients as refractive surgery.” ECF 150-20 at 6.

         7. In November 2012, Dr. Polomsky filed a similar complaint with the CMB. In his letter, he reported that Dr. Beyer “ha[d] been switching laser vision correction treatment cards without patients' knowledge or permission.” ECF 150-19; ECF 150 ¶ 19; ECF 166 ¶ 19. He asserted that the “switched treatment cards were of inferior quality to what the patient asked for, had been consented for, and paid for.” ECF 150-19.

         8. On December 24, 2012, a third complaint regarding Dr. Beyer was filed anonymously with the CMB. ECF 195 ¶ 1; ECF 201 at 2.

         9. On March 5, 2014, the Colorado Department of Regulatory Agencies (“DORA”) informed Dr. Beyer that the CMB was initiating an investigation into his “conduct as a licensed physician.” ECF 150-20 at 3. DORA stated it was beginning the investigation, because it “ha[d] received the attached complaint” regarding his conduct. The attachment was the complaint submitted by Dr. Stewart in October 2012. See Id. at 3, 5-7.

         10. In the notice of investigation, the CMB subpoenaed medical records for specific patients, and Dr. Beyer provided copies of those records. ECF 150-20 at 2; see ECF 150-21 at 1-2; ECF 166-1 ¶ 23. Dr. Beyer also informed the CMB that he had used PTK cards on the patients it reviewed. ECF 166-1 ¶ 23.

         11. On July 31, 2014, Cindy Reinhardt, a DORA investigator, emailed the following message to Dr. Polomsky:

In November 2012, you sent a letter to the [CMB] regarding a complaint you had about Dr. Craig Beyer. The complaint was combined with another complaint and recently sent to my office for investigation. Can you contact me regarding your complaint? I will need to ask you a few questions about what you witnessed. Thank you.

         ECF 166-10.

         12. On March 13, 2015, the CMB determined it had “reasonable grounds” to conclude Dr. Beyer had “deliberately and willfully violated” ethical standards based on his practice of using PTK cards to perform PRK (or “Lasik”) procedures. ECF 150-21 at 1-2. It then suspended Dr. Beyer's license to practice medicine “pending proceedings for suspension or revocation.” Id. at 2. The notice informed Dr. Beyer of the opportunity to request a hearing before the CMB to argue “why the suspension should be set aside.” Id. at 3.

         13. At the hearing held on April 9, 2015, the CMB “reviewed and considered new information regarding th[e] matter, ” concluded the suspension should be terminated, and reinstated Dr. Beyer's license to “active and in good standing.” ECF 150-22 at 1-2.

         14. On June 22, 2015, Dr. Beyer filed a lawsuit against Dr. Stewart and “John Doe” (the “First Lawsuit”) in Boulder County, Colorado, District Court. ECF 195 ¶ 1; see also ECF 201 at 5 and ECF 186 at 3-18. This lawsuit brought claims and sought damages related to the complaints filed with ...


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