Lee v. Banner Health (Full Text)
COLORADO COURT OF APPEALS
Court of Appeals No.: 08CA0665
Weld County District Court No. 05CV1398
Honorable Daniel S. Maus, Judge
James Lee, M.D.; Jeffrey Lee, M.D.; and Front Range Surgical Specialists, Inc.,
a Colorado corporation,
Plaintiffs-Appellants,
v.
Banner Health, an Arizona non-profit corporation; Banner Health d/b/a North
Colorado Medical Center; Donald Mellman, individually and as a former
employee of Banner Health; Les Fraser, M.D., individually and as a partner in
Greeley Medical Clinic; Rick Kiser, M.D., individually and as a partner in
Greeley Medical Clinic; Lisa Burton, M.D., individually and as a partner in
Surgical Associates of Greeley; Gene O’Hara, as Chief Executive Officer of North
Colorado Medical Center; Peter S. Fine, as a member of the Banner Health
Board of Directors and as Chief Executive Officer and President of Banner
Health; Banner Health Board of Directors; and Appellate Review Committee of
Banner Health,
Defendants-Appellees.
JUDGMENT AFFIRMED IN PART, REVERSED IN PART,
AND CASE REMANDED WITH DIRECTIONS
Division I
Opinion by: JUDGE LICHTENSTEIN
Taubman and Román, JJ., concur
Announced: July 9, 2009
Charles H. Torres, P.C., Charles H. Torres, Denver, Colorado, for Plaintiffs-
Appellants
McConnell, Siderius, Fleischner, Houghtaling & Craigmile, LLC, Linda L.
Siderius, Robert W. Steinmetz, Denver, Colorado, for Defendants-Appellees
Banner Health, Banner Health d/b/a North Colorado Medical Center, and
Donald Mellman
Budman & Hershey, LLC, Kari M. Hershey, Denver, Colorado, for Defendants-
Appellees Les Fraser, M.D. and Rick Kiser, M.D.
Hill & Robbins, P.C., John F. Walsh, III, Jennifer H. Hunt, Denver, Colorado,
for Defendants-Appellees Lisa Burton, M.D., Gene O’Hara, Peter S. Fine,
Banner Health Board of Directors, and Appellate Review Committee of Banner
Health
This appeal raises issues of subject matter jurisdiction under
the Colorado Professional Review Act (CPRA), sections 12-36.5-101
to -203, C.R.S. 2008, and immunity under the Health Care Quality
Improvement Act of 1986 (HCQIA), 42 U.S.C. §§ 11101 to -11152.
Plaintiffs, Drs. James Lee and Jeffrey Lee, and their clinic,
Front Range Surgical Specialists, Inc. (Front Range), filed a
complaint in district court asserting various common law claims
against defendants, Drs. Donald Mellman, Les Fraser, Rick Kiser,
and Lisa Burton, Banner Health, the North Colorado Medical Center
(NCMC), Gene O’Hara, Peter S. Fine, the Banner Health Board of
Directors, and the Appellate Review Committee of Banner Health.
Plaintiffs alleged defendants improperly denied trauma privileges to
Dr. James Lee (Dr. Lee) and subjected him to a deficient peer review
process in retaliation for plaintiffs’ refusal to support defendants’
business decision to restrict the performance of endoscopies.
Defendants assert they engaged in an appropriate peer review
process.
The trial court dismissed plaintiffs’ claims for lack of subject
matter jurisdiction based on their failure to exhaust administrative
remedies under the CPRA, and therefore did not reach defendants’
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immunity claim under the HCQIA. We reverse the judgment of the
district court to the extent it dismissed (1) Dr. Lee’s claims for
defamation and invasion of privacy that were based on the alleged
“public denouncement” of Dr. Lee and (2) the claims made by Dr.
Jeffrey Lee and Front Range (except for the breach of contract
claim, which is not before us on appeal). We affirm the judgment in
all other respects and remand the case to the district court for a
hearing on defendants’ claim of HCQIA immunity and for further
proceedings consistent with this opinion.
I. Background
Dr. Lee and Dr. Jeffrey Lee are brothers who operate their own
medical practice, Front Range, in Greeley, Colorado. The brothers
had privileges at Greeley’s NCMC to provide oncology care, surgery,
and trauma care.
For over six years, plaintiffs and defendants have disputed the
circumstances surrounding Dr. Lee’s departure from trauma call at
NCMC. According to plaintiffs’ complaint, in early 2003, defendant
Dr. Fraser, a member of a medical clinic and chair of NCMC’s
Surgical Quality Improvement (SQI) committee, threatened Dr. Lee’s
brother, Dr. Jeffrey Lee, with the loss of trauma privileges at NCMC
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if the brothers would not support the efforts of Dr. Fraser and other
defendants to limit the performance of endoscopy procedures to
gastroenterology specialists.
Sometime after this initial incident, defendant Dr. Burton, a
partner in another medical group and chair of NCMC’s Trauma
Quality Improvement committee, warned Dr. Lee that plaintiffs
would have to “either get on board” with the efforts to allow only
specialists to perform endoscopy procedures or “be branded as
troublemakers.”
Plaintiffs allege that when they resisted, Dr. Burton, acting
outside NCMC’s recognized peer review procedures, called a meeting
(on July 9, 2003) with Drs. Fraser and Mellman and Ruth Sens to
discuss an “emergency situation” concerning Dr. Lee and four
allegedly mishandled trauma cases. At the time of the meeting, Dr.
Mellman was NCMC’s Associate Administrator of Medical Affairs,
and Ruth Sens was director of Quality Improvement.
The meeting participants apparently agreed that Dr. Mellman
would take immediate action against Dr. Lee, and that the four
allegedly mishandled trauma cases would be referred both for
outside review and for review by NCMC’s SQI committee. Plaintiffs
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allege that under NCMC peer review rules, the SQI committee was
not empowered to review trauma cases.
Plaintiffs allege that on July 10, 2003, Dr. Mellman threatened
Dr. Lee with immediate suspension and reporting to the National
Practitioner Data Bank unless he voluntarily resigned his trauma
privileges. At the insistence of Dr. Mellman, Dr. Lee drafted a letter
resigning his trauma privileges. When Dr. Lee gave the letter to
him, Dr. Mellman berated Dr. Lee in a public area at NCMC where
other members of the medical staff were within earshot. Dr.
Mellman later informed Dr. Lee, in the presence of medical staff,
that because the resignation letter was improperly worded, Dr.
Mellman would still be required to report him to the National
Practitioner Data Bank unless he rewrote the letter. Plaintiffs
assert that Dr. Mellman’s threats coerced Dr. Lee to “voluntarily
waive his rights” to protections available under the hospital’s peer
review process. When Dr. Lee tried to rescind his “voluntary
resignation,” Dr. Mellman again threatened him with immediate
reporting to the National Practitioner Data Bank.
Plaintiffs allege that shortly after this public confrontation, Dr.
Mellman directed four NCMC hospital personnel to approach Dr.
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Lee, who, at the time, was preparing to assist another doctor with a
surgical operation. They asked if he had spoken to Dr. Mellman,
telling him that he “was not to operate until he had talked with [Dr.]
Mellman.”
Plaintiffs further allege that on January 23, 2004, as Dr. Lee
was again preparing for surgery, he was handed, in a manner
calculated to create a public display, a letter stamped seven times:
“CONFIDENTIAL.” Some NCMC hospital employees approached Dr.
Lee before he was about to commence surgery to ensure he had
received this confidential letter.
Plaintiffs assert that defendants did not follow the peer review
process dictated by the NCMC bylaws for approximately seven
months – from July 10, 2003, when Dr. Mellman allegedly directed
Dr. Lee to resign from trauma call until February 27, 2004, when
defendant Dr. Kiser, who was chair of NCMC’s Credentials
Committee, notified Dr. Lee of the Credentials Committee’s receipt
of a formal request from the SQI committee for investigative and
corrective action.
Plaintiffs filed a complaint in federal district court raising
federal and state antitrust claims and other state law claims. In
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May 2005, the federal district court dismissed the antitrust claims
with prejudice. It dismissed the remaining state claims, without
prejudice, for want of subject matter jurisdiction. In August 2005,
plaintiffs filed a complaint in state district court raising state claims
substantially similar to those brought in federal district court for (1)
civil conspiracy, (2) breach of contract, (3) tortious interference with
contract, (4) defamation and intentional interference with
contractual relations, (5) invasion of privacy, (6) negligence, (7)
liability based on ratification and failure to conduct an independent
investigation. Plaintiffs’ complaint also included a request for
exemplary damages.
On September 14, 2005, Dr. Lee received notice of a final
decision by the Banner Health Board of Directors (Board) accepting
the recommendation of Banner’s Appellate Review Committee. In
light of Dr. Lee’s receipt of the Board’s final decision, plaintiffs filed
an amended complaint on November 7, 2005 reflecting the final
decision.
Prior to the filing of the amended complaint, on October 28,
2005, defendants filed two motions to dismiss plaintiffs’ complaint,
asserting that (1) the district court lacked subject matter
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jurisdiction over plaintiffs’ claims because plaintiffs failed to
exhaust their administrative remedies under the CPRA by not filing
their claims with the state Committee on Anticompetitive Conduct
(CAC); (2) defendants were immune from suit under the CPRA and
the HCQIA; and (3) plaintiffs’ claims for breach of contract, invasion
of privacy, and negligence failed to state claims upon which relief
could be granted.
Although defendants styled their motions as motions to
dismiss, the district court noted that the parties had attached
numerous exhibits relevant to some of the claims. It therefore
treated defendants’ motions as motions for summary judgment, but
considered the claims for breach of contract, invasion of privacy,
and negligence under C.R.C.P. 12(b)(5).
On June 19, 2007, the district court partially denied
defendants’ motions. It first concluded that because the CAC has
no power to award monetary relief, plaintiffs were not required to
file their claims with the CAC in order to properly exhaust their
administrative remedies under the CPRA. Next, the court ordered a
hearing to determine the validity of defendants’ assertions of HCQIA
and CPRA immunity. The court then found that plaintiffs had
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successfully stated claims for invasion of privacy and negligence,
but dismissed plaintiffs’ claim for breach of contract for failure to
state a claim. Plaintiffs’ breach of contract claim is not at issue in
this appeal.
On October 30, 2007, defendants filed a joint motion for
reconsideration of their motions to dismiss in light of the supreme
court decision in Crow v. Penrose-St. Francis Healthcare System,
169 P.3d 158 (Colo. 2007), which held that common law claims
arising out of the peer review process may not be asserted in court
until a physician has exhausted his or her administrative remedies
under the CPRA. In their response, plaintiffs asserted that they
were not required to file their claims “with the CAC because none of
their allegations . . . alleged anticompetitive conduct by the
defendants.”
The district court, relying on Crow, dismissed all of plaintiffs’
claims with prejudice based on Dr. Lee’s failure to exhaust
administrative remedies under the CPRA. Contrary to plaintiffs’
position, the district court found “the conduct with which Plaintiffs
take issue [is] irreversibly intertwined with alleged anti-competitive
conduct by Defendants.” Plaintiffs appeal the judgment of
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dismissal.
II. Standard of Review
A trial court may consider any competent evidence pertaining
to a C.R.C.P. 12(b)(1) motion to dismiss for lack of subject matter
jurisdiction without converting the motion to a summary judgment
motion. Trinity Broad. of Denver, Inc. v. City of Westminster, 848
P.2d 916, 924 (Colo. 1993).
A trial court’s determination regarding subject matter
jurisdiction is a question of law and is therefore subject to de novo
review. Pfenninger v. Exempla, Inc., 12 P.3d 830, 833 (Colo. App.
2000) (Pfenninger I) (trial court’s determination regarding subject
matter jurisdiction is reviewed de novo).
III. Discussion
Pursuant to C.R.C.P. 12(b)(1), a plaintiff has the burden of
proving that the trial court has jurisdiction to hear the case.
Pfenninger I, 12 P.3d at 833. If a party fails to exhaust
administrative remedies when required, the trial court is without
jurisdiction to hear the case. Id.; see also State v. Golden’s Concrete
Co., 962 P.2d 919, 923 (Colo. 1998).
Section 12-36.5-106 of the CPRA provides a two-track
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exhaustion requirement for claims arising out of the peer review
process, “depending on whether the claim alleges anticompetitive
conduct by the peer review committee.” Crow, 169 P.3d at 165. To
exhaust administrative remedies for claims arising out of the peer
review process that do not allege anticompetitive conduct, a
physician need only obtain a final board action by the hospital. §
12-36.5-106(8); Crow, 169 P.3d at 165. To exhaust administrative
remedies for claims arising out of the peer review process that allege
anticompetitive conduct, a physician must obtain a final board
action by the hospital, and then present his or her claims alleging
anticompetitive conduct to the CAC. § 12-36.5-106(7) (“Any
physician . . . who believes that [a final board] action resulted from
unreasonable anticompetitive conduct shall have, as his sole and
exclusive remedy, direct review of the record by the [CAC].”); Crow,
169 P.3d at 163.
The CAC’s jurisdiction does not extend to the review of a
hospital’s denial of a physician’s privileges when the denial is
unrelated to the physician’s qualifications, conduct, or quality of
patient care. Ryals v. St. Mary-Corwin Reg’l Med. Ctr., 10 P.3d 654,
662 (Colo. 2000).
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Plaintiffs contend the district court had subject matter
jurisdiction over their claims because the CPRA exhaustion
requirement did not require them to present their claims to the CAC
prior to filing in district court. They specifically assert that (1) their
complaint alleged retaliatory conduct as opposed to anticompetitive
conduct; or (2) assuming arguendo that the alleged conduct was
anticompetitive, the conduct did not stem from a peer review
process.
As a preliminary matter, we note that the procedural posture
of the plaintiffs is distinct. Dr. Lee is the only plaintiff that was the
subject of peer review. Therefore we will analyze the CPRA
exhaustion requirement separately as to Dr. Lee and the other two
plaintiffs, Dr. Jeffrey Lee and Front Range.
A. Dr. Jeffrey Lee and Front Range
Dr. Jeffrey Lee and Front Range contend the court erred by
dismissing their claims because they have damages that exist
independently of Dr. Lee’s claims. Defendants assert that the
claims of Dr. Jeffrey Lee and Front Range are derivative of Dr. Lee’s
claims and are “per se precluded” by the CPRA’s exhaustion
requirement in section 12-36.5-106(7) due to Dr. Lee’s failure to
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present his claims to the CAC. We agree with Dr. Jeffrey Lee and
Front Range.
In its order dismissing plaintiffs’ amended complaint, the
district court did not explain its rationale – beyond its reliance on
Crow – for dismissing claims made by Dr. Jeffrey Lee and Front
Range. Consequently, we infer that the district court dismissed
their claims because it believed them to be barred by Dr. Lee’s
failure to bring his own claims before the CAC.
In Ryals, our supreme court held that only claims arising out
of the peer review process are subject to the CPRA’s exhaustion of
remedies requirement. Ryals, 10 P.3d at 659. In addition, section
12-36.5-106(7) unambiguously states that only physicians who are
“the subject of a final action by a governing board” need present
peer review claims that allege anticompetitive conduct to the CAC.
Crow, 169 P.3d at 165. In the present case, neither Dr. Jeffrey Lee
nor Front Range was subject to peer review, and neither was the
subject of a final action by a governing board. Thus, they had no
avenue for relief other than to bring their claims in district court.
In addition, the civil conspiracy, interference with contract,
and liability based on ratification and failure to conduct an
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independent investigation claims brought by Dr. Jeffrey Lee and
Front Range (as well as their request for exemplary damages) were
not dependent upon Dr. Lee’s recovery on his claims, and are
therefore not properly characterized as derivative. See Elgin v.
Bartlett, 994 P.2d 411, 415 (Colo. 1999) (derivative claims are
unique in that they depend entirely upon the right of the injured
person to recover). Furthermore, the invasion of privacy and
defamation claims were not subject to the CPRA’s exhaustion
requirement, as discussed below.
We therefore conclude that Dr. Lee’s failure to present his
claims to the CAC did not deprive the district court of jurisdiction
over the claims of Dr. Jeffrey Lee and Front Range.
B. Dr. Lee
We now turn to whether Dr. Lee was required to present his
claims to the CAC prior to filing in district court. We conclude that,
other than the invasion of privacy and defamation claims discussed
below, Dr. Lee was required to exhaust his claims before the CAC,
because his claims alleged anticompetitive conduct arising out of
the peer review process.
i. Anticompetitive Conduct
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In its order dismissing Dr. Lee’s claims, the district court
found that the amended complaint alleged anticompetitive conduct,
and concluded that the “attempt to characterize [d]efendants’
purported conduct as ‘retaliation’ instead of ‘anti-competition’
amount[ed] to an issue of semantics.”
On appeal, Dr. Lee argues that retaliatory conduct is different
from anticompetitive conduct, and that his claims were based on
defendants’ retaliation for plaintiffs’ refusal to support defendants’
efforts to limit the performance of endoscopies to specialists. We
are not persuaded.
After our own review of the amended complaint, we agree with
the district court that the complaint alleges anticompetitive conduct
because it is replete with assertions such as: “Defendants conspired
and agreed to retaliate against Plaintiffs and their clinic, to destroy
competition in Greeley and northern Colorado.” Moreover, plaintiffs
describe Drs. Burton, Fraser, and Kiser as competitors, and accuse
Banner Health of allowing certain doctors to use the peer review
process to arbitrarily ruin the reputations and practices of
“competitor doctors.” Whether defendants had retaliatory motives
for engaging in anticompetitive conduct does not alter the fact that
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Dr. Lee alleged anticompetitive conduct. See Crow, 169 P.3d at
166. Therefore, he was required to present his claims to the CAC
before bringing them in court, so long as the claims arose out of the
peer review process. § 12-36.5-106(7); Crow, 169 P.3d at 165.
ii. Peer Review
Plaintiffs contend that Dr. Lee’s claims did not arise out of a
peer review process. They argue the claims either did not involve
patient care issues or were based on conduct that occurred prior to
any official NCMC peer review procedure. With the exception of the
invasion of privacy and defamation claims that were based on Dr.
Mellman’s alleged “public denouncement of Dr. James Lee,” we
disagree with plaintiffs.
The CAC only has jurisdiction over claims arising from a peer
review activity assessing physician competence. Ryals, 10 P.3d at
659. In Ryals, the defendant hospital denied the plaintiff physician
MRI-reading privileges. Because the hospital’s denial was based on
an exclusive contract granting MRI-reading privileges to a specific
group of doctors and not on concerns about the plaintiff’s
competence, the supreme court concluded that the plaintiff
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physician’s claims had not arisen from a peer review process, and
thus were not subject to the CPRA’s exhaustion requirements. Id.
Here, plaintiffs do not dispute that at the initial July 9, 2003
meeting among Dr. Burton, Dr. Fraser, Dr. Mellman, and Sens, the
participants reviewed four of Dr. Lee’s trauma cases.
However, plaintiffs assert that the purported peer review that
commenced at the July 9, 2003 meeting did not follow NCMC peer
review procedures, and thus could not qualify as peer review for
purposes of the CPRA. Even if we were to assume, without
deciding, that the process did not follow recognized procedures, we
are not persuaded.
Under the CPRA, peer review committees may investigate the
“quality or appropriateness of patient care rendered by or the
professional conduct of any [licensed] physician.” § 12-36.5-
104(6)(a)(II); see Ryals, 10 P.3d at 659. Since it is undisputed that
Dr. Burton, Dr. Fraser, Dr. Mellman, and Sens met on July 9, 2003
to review four of Dr. Lee’s trauma cases, the July 9 meeting
commenced Dr. Lee’s peer review process.
Failure by defendants to conduct the peer review process in
accordance with NCMC bylaws does not mean defendants were
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engaged in something other than peer review. Rather, any alleged
failure of defendants to comply with NCMC bylaws would simply
constitute a deficiency in the peer review process. See Crow, 169
P.3d at 168 (“Crow’s complaints stem solely from the process, or in
his view, lack of process, that he has been afforded.”); see also § 12-
36.5-104(4) (professional review committee must operate pursuant
to written bylaws approved by governing board); Peper v. St. Mary’s
Hosp. & Med. Ctr., 207 P.3d 881, 888-89 (Colo. App. 2008)
(addressing adequacy of notice and hearing procedures).
Under Crow, claims based on deficiencies in the peer review
process are treated no differently from claims based on the outcome
of the peer review process. Crow, 169 P.3d at 168-69.
Consequently, we conclude that Dr. Lee’s claims regarding the
adequacy of defendants’ investigation and review of his competence
are claims arising out of the peer review process, and therefore fall
within the CAC’s jurisdiction.
Pursuant to section 12-36.5-106(7), Dr. Lee was required to
present his claims (other than invasion of privacy and defamation)
to the CAC before filing suit in district court. Id. at 163. Because
he did not do so, the district court was without jurisdiction to
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entertain his claims, other than the below-discussed invasion of
privacy and defamation claims.
iii. Invasion of Privacy and Defamation Claims
Plaintiffs contend the court erred by dismissing their fourth
claim, for defamation, and their fifth claim, for invasion of privacy,
asserting that the CAC does not have jurisdiction over common law
claims that do not arise out of peer review activity. We agree, but
only to the extent the claims are based on Dr. Mellman’s alleged
“public denouncement of Dr. James Lee.”
As an initial matter, we note that although plaintiffs assert in
the argument heading of their brief that the court erred by
dismissing their claim for invasion of privacy, the text of their
arguments addresses their claims for invasion of privacy and
defamation to the extent they were based on public confrontations
between Drs. Mellman and Lee. We therefore address plaintiffs’
arguments regarding both claims.
Plaintiffs rely on Pfenninger v. Exempla, Inc., 17 P.3d 841
(Colo. App. 2000) (Pfenninger II), to argue that physicians are not
required to present common law claims to the CAC because the
CAC has no jurisdiction over such claims. Plaintiffs assert that the
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supreme court’s holding in Crow does not alter Pfenninger II’s
holding. While we disagree with plaintiffs’ characterization of Crow,
we agree that the district court erred in dismissing plaintiffs’ two
claims here. Contrary to plaintiffs’ argument, Crow limits the
Pfenninger II holding, but only to the extent that a physician asserts
common law claims that arise out of a peer review activity.
Pursuant to Crow, “common law claims arising out of the peer
review procedure are subject to the exhaustion of administrative
remedies requirement detailed in subsections 12-36.5-106(7) and
(8).” Crow, 169 P.3d at 163 (emphasis added).
Here, rather than occurring during a peer review procedure,
Dr. Mellman’s alleged “public denouncement” of Dr. Lee was made
in hallways and operating rooms at NCMC. To the extent plaintiffs’
invasion of privacy and defamation claims were based on this
conduct, they were not subject to the CPRA’s exhaustion of
administrative remedies requirement under section 12-36.5-106.
We conclude, therefore, that plaintiffs were not required to present
these claims to the CAC before proceeding with them in district
court.
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We further conclude that to the extent plaintiffs’ fourth and
fifth claims allege NCMC and Banner Health share liability for Dr.
Mellman’s alleged torts, plaintiffs were not required to first present
these claims to the CAC. We express no opinion, however, on the
validity of plaintiffs’ claims.
C. HCQIA Immunity
Defendants contend they are entitled to statutory immunity
under the HCQIA. Insofar as we have reversed the dismissal of
some of plaintiffs’ claims, we remand for the district court to
conduct a hearing on defendants’ assertion of HCQIA immunity.
D. Attorney Fees and Costs
Defendants next contend they are entitled to an award of
attorney fees and costs on appeal, citing section 13-17-201, C.R.S.
2008, which provides for the award of attorney fees in a tort action
dismissed under Crim. P. 12(b). We disagree.
Had defendants successfully defended the C.R.C.P. 12(b)
dismissal of plaintiffs’ claims on appeal, they would be entitled to
recover reasonable attorney fees on appeal. Cf. State Farm Fire &
Cas. Co. v. Weiss, 194 P.3d 1063, 1169 (Colo. App. 2008). Here,
however, because we have reinstated some of plaintiffs’ claims,
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defendants cannot recover their attorney fees under section 13-17-
201. See Rector v. City & County of Denver, 122 P.3d 1010, 1018
(Colo. App. 2005); Sundheim v. Bd. of County Comm’rs, 904 P.2d
1337, 1353 (Colo. App. 1995) (§ 13-17-201 inapplicable because
one of the claims had been restored in part), aff’d, 926 P.2d 545
(Colo. 1996).
In light of this conclusion, we need not address plaintiffs’
remaining arguments in opposition to defendants’ request for
attorney fees.
As to costs, section 13-17-201 does not provide for an award
of costs, and because we have reinstated some of plaintiffs’ claims,
we decline to award defendants costs on appeal. See C.A.R. 39(a) (if
a judgment is affirmed or reversed in part, or is vacated, costs shall
be allowed only as ordered by the court).
IV. Conclusion
The judgment of the district court is reversed to the extent it
dismissed Dr. Lee’s claims for defamation and invasion of privacy
based on Dr. Mellman’s alleged “public denouncement” of Dr. Lee.
The judgment of the district court is also reversed to the extent it
dismissed all claims made by Dr. Jeffrey Lee and Front Range
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(except for the breach of contract claim, which is not before us on
appeal). The judgment is affirmed in all other respects. The case is
remanded to the district court to hold a hearing to determine
defendants’ claim of HCQIA immunity and for further proceedings
consistent with this opinion.
JUDGE TAUBMAN and JUDGE ROMÁN concur.
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