Freeman et al v. Costa et al

Filing 68

ORDER Granting 50 Dr. Voytkos Motion for Summary Judgment; denying 56 Plaintiffs Cross-Motion for Summary Judgment; The suggestion that Plaintiffs Cross-Motion should not be considered as untimely is DENIED as MOOT, by Judge John L. Kane on 3/2/2012.(ervsl, ) (Modified on 3/2/2012 corrected the text to Granted 50 )(ervsl, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge John L. Kane
Civil Action No. 10-cv-644-JLK
SHANNON FREEMAN, as personal representative of BRYANT HANNA, a child, and
STEPHANIE HANNA, as representative of the estate of ROBERT HANNA, deceased,
Plaintiffs,
v.
GREGORY COSTA, PA-C;
DIANE VOYTKO, M.D.;
COLORADO MOUNTAIN MEDICAL, P.C, and
JOHN DOE and JANE DOE, whose identities are currently unknown,
Defendants.

ORDER
Kane, J.
This wrongful death medical malpractice action was brought on behalf of Robert Hanna,
a father who died from influenza after being seen by a physician assistant at a Vail clinic run by
Colorado Mountain Medical, P.C. Mr. Hanna’s representatives name as Defendants the clinic
(“CMM”), the treating physician assistant (PA) Gregory Costa, the PA’s supervisor of record,
Dr. Diane Voytko, and two unnamed John and Jane Doe Defendants described as potential
principals, employees or agents of CMM at relevant times. Plaintiffs claim Costa was
professionally negligent in his treatment of Mr. Hanna, and seek to hold the clinic, Dr. Voytko
and/or the unnamed Defendants liable based on violations of their duties of care as Costa’s
supervisors.
Dr. Voytko moves for Motion for Summary Judgment. She argues on facts undisputed in
the record that while she was registered as Costa’s supervising physician under Colorado
Medical Board Rules and Regulations for Licensure of and Practice by Physician Assistants (the

“Rules”) at the time he saw Hanna on March 24, 2008, she had actually handed off those duties
to a different doctor several months before and was not supervising Costa at that time as a matter
of fact. Plaintiffs do not challenge these facts. Instead, they argue Rule 400 registration binds a
registered PA supervisor whatever the circumstances unless and until a change in supervisory
status is communicated in writing. Because Voytko’s Rule 400 designation did not change
between February 2007 when she registered as Costa’s supervisor and October 2008 when Dr.
Steven McGarry replaced her, Plaintiffs contend Voytko remained Costa’s supervisor throughout
and cannot disclaim responsibility for his actions on March 24, 2008.
Plaintiffs’ and Dr. Voytko’s filings, together with the deposition testimony and other
evidence submitted on summary judgment, demonstrate there is no genuine factual dispute that
Voytko terminated her supervision of Costa in January 2008. The question is whether Voytko’s
Rule 400 registration overrides those facts as a matter of law. It does not.
Legal Standard.
Summary judgment is appropriate only if there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c), applied in
Adamson v. Multi. Cmty. Diversified Servs., Inc., 514 F.3d 1136, 1145 (10th Cir. 2008). A fact
is material if it could affect the outcome of the suit under governing law; a dispute of fact is
genuine if a rational jury could find for the nonmoving party on the evidence presented. Id. On a
motion for summary judgment, the moving party bears the burden of demonstrating there are no
genuine issues of material fact that should be decided at trial. Id. at 1145. In deciding whether
the moving party has carried its burden, I do not weigh the evidence and instead must view it and
draw all reasonable inferences in the light most favorable to the nonmoving party. Id.

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Discussion
No Per Se Liability based on Colorado’s Rule 400 Regulatory Scheme.
Plaintiffs assert Dr. Voytko is liable for Mr. Costa’s acts or omissions “not because she
provided medical care or treatment for Hanna, or because she consulted with Costa about his
case . . . ,” but rather “because of her admitted and documented status as Costa’s designated
primary supervising physician of defendant Costa on record with the Board from January 24,
2007 until October 24, 2008.” Pls.’ Resp. Mot. Summ. J. at 2. Plaintiffs cross-move for a
declaration that Dr. Voytko was Costa’s “lawful designated primary supervising physician as a
matter of law” on March 24, 2008, and is precluded from asserting that “anyone other than
Voytko” supervised him on that date. Pls.’ Mot. Partial Summ. J. (Doc. 56) at 9. Plaintiffs
misread and misapprehend the Medical Board Rules and their operative effect in common law
medical malpractice actions.
Generally speaking, administrative rules – unlike legislative enactments – neither create
private causes of action for their violation nor relieve litigants of their evidentiary burdens in
private litigation. See Chambers v. St. Mary’s School, 697 N.E.2d 198, 203 (Ohio 1998). The
fact Voytko was Costa’s “designated primary physician supervisor” under Rule 400 is therefore
neither dispositive of the question of Costa’s agency relationship to Voytko on March 24, 2008,
nor does it relieve Plaintiffs of their burden in private litigation to establish that relationship and
any related legal duties of care. The suggestion Rule 400 impresses a “scarlet letter” on Dr.
Voytko that is not removable is rejected.
Moreover, Rule 400 does not even purport to create a private right of action for third
parties injured by PAs or their supervisors. The only reference to physician supervisor

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“liability” in the Rule 400 PA licensure scheme is found in Section 2(C)(2): “[I]f a supervised
physician assistant commits unprofessional conduct as defined [by Colorado statute],” then “the
primary physician supervisor shall be deemed to have violated these Rules.” 3 CCR 713-7
(emphasis mine). The remedy for Rules violations lies with the Medical Board in accordance
with its duties to license and monitor PA medical practice. See C.R.S. § 12-36-118. It is beyond
the competence of the Medical Board to enact laws applicable beyond the scope of its statutory
authority. Only the legislature or the Colorado Supreme Court has the authority change the
common law.
That the Colorado Medical Board’s PA regulatory scheme authorizes no private cause of
action for violations of its Rules Voytko cannot be held liable to Mr. Hanna’s representatives in
a proper action at law. It only means Voytko’s registration status and/or violation of Rule 400
registration requirements do not operate as negligence per se.
Viewed this way, Dr. Voytko’s Rule 400 designation becomes a fact relevant to questions
of agency, actual supervisory status, and negligence under Colorado professional malpractice
law. See generally, C.J.I.-Civ. 15:1 (Physicians and Practitioners of Other Healing Arts Malpractice - Elements of Liability). The question on summary judgment, then, is whether Dr.
Voytko’s Rule 400 designation raises a dispute as to whether Voytko terminated her agency and
supervisory relationship with Costa in January 2008.
Dr. Voytko’s Motion for Summary Judgment.
Dr. Voytko moves for entry of summary judgment on grounds the undisputed facts
support no plausible inference that she was Costa’s principal, employer, or supervisor on March
24, 2008. In support Voytko offers her own sworn testimony that Dr. Edward Dent assumed

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primary supervision duties over Costa in January 2008; Dr. Dent’s sworn testimony
corroborating that fact; CMM Executive Committee minutes reflecting “unanimous approval” of
the change in January 2008, see Mot. (Doc. 50) at 7, 8-13 (and related attachments); and the
unrefuted testimony of both Voytko and Dent that the failure to register Dr. Dent as Costa’s new
primary supervisor was a “paperwork glitch.” Against this evidence we have Voytko’s Rule 400
designation, identifying Voytko as Costa’s supervisor from February 2007 to October 2008.
The adoption of C.R.S. § 13-21-111.5 eliminating joint and several liability for joint
tortfeasors had “the effect of eliminating liability of a physician for the negligent acts of another
physician absent a showing that the physicians ‘acted in concert’ . . . [or] were in an
employment, partnership or joint venture relationship with one another.” Notes on Use, C.J.I.Civ. 15:1 (quoting Freyer v. Albin, 5 P.3d 329, 331 (Colo. App. 1999), cert. denied (2000)). The
“crucial question” is not the context of the negligence at issue, “but the master-servant
relationship of the parties.” Hall v. Frankel, 190 P.3d 852, 860 (Colo. App. 2008), cert. denied
(2009). This question is one of fact, not law. Id. (citing Young v. Carpenter, 694 P.2d 861, 863
(Colo. App. 1984).
Where, as here, a plaintiff sues a non-acting or supervisory physician claiming that his
relationship with the “actively” negligent medical professional renders him vicariously liable for
that negligence, Colorado law requires plaintiff to establish that relationship by a preponderance
of the evidence. C.J.I.-Civ. 15:1 (directing counsel to “the appropriate instructions from
Chapters 7 (agency) or 8 (respondeat superior)). Because Plaintiffs’ vicarious liability claims
against Voytko are premised on her agency relationship with Costa at the time he treated Hanna,
plaintiffs must prove that agency relationship existed on March 24, 2008.

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An agency is created by an agreement by which the persons involved agree that one of
them is to act for, or in the place of, the other. C.J.I. Civ. 7:3 (citing Hall in doctor and covering
doctor context). The most important fact in determining whether an agency relationship exists is
the principal’s right to control the agent. See id. For our purposes, the terms of Voytko’s Rule
400 designation established an agency relationship between her and Costa effective February 9,
2007. The Rule 400 Form does not, without more, rebut Voytko’s multiply-corroborated
evidence that she terminated that relationship in January 2008.
An agent’s authority to act for the principle terminates either as agreed by the agent and
principle together, or upon “the occurrence of circumstances on the basis of which the agent
should reasonably conclude that the principal no longer would assent to the agent’s taking action
on the principal’s behalf.” Rest. (3d) Agency § 3.09 (2006). According to Dr. Voytko, Dr. Dent,
and Colorado Mountain Medical Executive Committee Minutes, Voytko terminated her
supervisory relationship with Costa in January 2008 after which Costa was no longer authorized
to act for, or in the place of, Voytko. Both Voytko and Dent testified that their intent was that
the change would be reflected in the appropriate Rule 400 filing and that the Medical Board’s
failure to reflect any such change had to have been a “paperwork glitch.” Costa, the ostensible
agent, testified that at the time he treated Mr. Hanna, he “believed” Dent was his supervisor and
had “take[n] over” for Dr. Voytko. Costa Dep. (Doc 59-2) pp. 133-34. Other than Voytko’s
February 2007 to October 2008 Rule 400 designation, Plaintiffs offer no facts to rebut Voytko’s
evidence that she terminated her supervisory status in January 2008 and that Costa was not
authorized to treat patients on her behalf thereafter. On this record, there is no factual dispute
that precludes entry of summary judgment in Dr. Voytko’s favor or that warrants requiring Dr.

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Voytko, or Plaintiffs, to proceed to trial on Plaintiffs’ claims for vicarious (agency) liability or
negligent supervision.
Plaintiffs’ Negligent Supervision claim.
Because there is no genuine factual dispute regarding Voytko’s status as Costa’s
supervisor on March 24, 2008, there is no factual basis on which to find that Dr. Voytko owed,
or breached, any duty of care to Mr. Hanna as Costa’s supervisor. Independently of this holding,
however, I agree with Dr. Voytko that even if she had been Costa’s supervisor when he treated
Mr. Hanna, any negligence on her part in that supervision would have to be established by the
expert testimony of another physician under C.R.S. 13-64-401. This provides an additional and
independent basis for granting summary judgment to Voytko on the negligent supervision claim.

Based on the foregoing, Dr. Voytko’s Motion for Summary Judgment (Doc. 50) is
GRANTED. Plaintiffs’ Cross-Motion for Summary Judgment (Doc. 56) is DENIED. The
suggestion that Plaintiffs’ Cross-Motion should not be considered as untimely is DENIED as
MOOT. This matter shall be set for a forthwith pretrial conference and trial setting. Available
dates for the pretrial conference include April 19 or 26, 2012, at 10:00 a.m. Other dates and
times may be available as well. Counsel shall confer and call in to chambers for a pretrial
converence date on or before noon on March 7, 2012.
Dated: March 2, 2012
s/John L. Kane
SENIOR U.S. DISTRICT JUDGE

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