United States District Court, D. Colorado
BEYER LASER CENTER, LLC, and CRAIG F. BEYER, Plaintiffs/Counterclaim Defendants,
MATEJ POLOMSKY, Defendant/Counterclaimant.
MICHAEL E. HEGARTY, UNITED STATES MAGISTRATE JUDGE
the Court is Defendant Matej Polomsky's
Second 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.
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.
reasons that follow, the Court will deny Defendant's
Court makes the following findings of fact viewed in the
light most favorable to Plaintiffs, who are the non-moving
parties in this matter.
Plaintiff Craig F. Beyer and Defendant Matej Polomsky are
ophthalmologists. ECF 150 ¶ 1; ECF 166 ¶ 1.
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.
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
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.
treatment card offered different features at varied costs.
ECF 150 ¶ 13; ECF 166 ¶ 13.
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 cards for PRK/LASIK cards and
passing this off to patients as refractive surgery.”
ECF 150-20 at 6.
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.
December 24, 2012, a third complaint regarding Dr. Beyer was
filed anonymously with the CMB. ECF 195 ¶ 1; ECF 201 at
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.
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.
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.
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.
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.
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 ...