Appendix — Tyler v. Hartford Insurance Group
Supreme Court brief1982
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APPENDIX A
COLORADO COURT OF APPEALS
No. 81C A0157
DONALD E. TYLER,
NOT
Plaintiff- Appellant, N
SELECTED
Ve
— —— ee ee —
FOR
THE HARTFORD INSURANCE)
) PUBLIC ATION
GROUP, FRANCIS FRY, and )
)
ROBERT S, BRITTAIN, )
Defendants- Appellees,
Appeal from the District Court of Jefferson
County
Honorable Anthony F. Vollack, Judge
DIVISION U
Opinion by JUDGE KELLY
Van Cise and Tursi, JJ, concur
JUDGMENT AND ORDERS AFFIRMED
A-l
ye
heel
Donald E. Tyler, Pro se
Pryor, Carney and Johnson, P. C.
Peter Pryor
Thomas L. Roberts
Englewood, Colorado
Attorneys for Defendants-Appellees
Opinion filed and judgment entered on the Zlst
of December 1981,Clerk of the Court,
Mac Danford.
Plaintiff Dr. Donald Tyler, sued defendants,
The Hartford Insurance Group (Hartford),
Francis Fry, and Dr. Robert Brittain, for
libel, slander, outrageous conduct, civil
conspiracy, and violation of 42 U. S. C. 61983,
In December, 1977, the trial court dismissed
the conspiracy and civil rights claims, and in
January 1981, the trial court granted
summary judgment in favor of defendants on
the libel, slander, and outrageous conduct
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An.
claims. Plaintiff appeals these trial court
rulings and assigns error to other rulings
denying discovery. We affirm.
On July 3, 1974, Donald Gaylor wrote a
letter to Dr. Galen Marks, the chief of staff
of Brighton Community Ho spital (BCH). In
the letter, Gaylor described an incident in
which he had brought his aunt into the
emergency room at BCH and the emergency
room physician, Tyler, had refused to treat
her. On the same day, Gaylor sent an
identical letter to Dale Alter, chairman of
the board of directors at BCH, The Risk
Management Committee at BCH discussed the
letter and asked Tyler to produce various
medical records for review by the committee.
Tyler refused several requests to produce
the records and was subsequently removed
from emergency room duty. Tyler's
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malpractice insurance carrier, Hartford,
also requested a review of Tyler's records,
and when he refused to provide them, his
malpractice insurance was not renewed,
Tyler sued Gaylor, Marks, and various
BCH officials for libel, conspiracy and
denial of constitutional rights, In Tyler x.
Gaylor (Colo. App. No. 77-894, June 14, 1980)
(Not selected for official publication), we held
that the letter from Gaylor to Alter was
nondefamatory and nonactionable as a matter
of law. A jury verdict in favor of defendants
Gaylor and Alter on the conspiracy claims
was affirmed,
I, Libel and Slander
It is uncontroverted that Fry, a medical
malpractice claims examiner working for
Hartford, showed the Gaylor-Marks letter
and other documents associated with pending
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Tyler litigation to Brittain, who was then the
chairman of the Professional Liability
Committee of the Colorado Medical Society.
Fry's duties as a Hartford employee included
review of lawsuits against doctors insured by
Hartford. Brittain's responsibilities included
review of hospital records and education of
doctors to prevent malpractice claims.
Tyler asserts that Fry's publication to
Brittain of the Gaylor-Marks letter
constituted libel, and their subsequent
discussion of the letter and other documents
constituted slander, The trial court noted
that the Gaylor-Marks letter, which is the
subject of this litigation, is identical to the
Gaylor-Alter letter, which was the subject of
Tyler, v. Gaylor, supra, except for the
difference in the addressee and the lack of
signature on the Alter letter, The trial court
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held that collateral estoppel prevented
relitigation of the issue whether the Gaylor-
Marks letter was defamatory. We agree,
All of the criteria for the application of
the doctrine of collateral estoppel announced
in Pomeroy v, Waitkus, 183 Colo. 344, 517
P. 2d 396 (1973) are present here. First, the
issue decided in the prior adjudication is
identical with the one presented in the action
in question. Second, there has been a final
judgment on the merits in the first case, In
Tyler v, Gaylor, the Colorado Supreme
Court denied Tyler's petition for certiorari
on October 9, 1979. Third, the party against
whom the plea is asserted, Tyler, was a
party to the prior adjudication. It is
irrelevant that the defendants were not
parties to the prior action. Murphy v.
Northern Colorado Grain Co., 30 Colo. App.
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ps!
21, 488 P. 2d 103 (1971), And fourth, the
party against whom the plea is asserted has
had a full and fair opportunity to litigate the
issue in the prior adjudication. Tyler had
both the incentive aud the opportunity to litigate
the question fully: He presented evidence to
the jury on the defamation issue and appealed
the jury verdict.
Consequently, collateral estoppel applies
to preclude Tyler from asserting that the
Gaylor-Marks letter is defamatory. Since
the defendants could not be guilty of libeling
or slandering plaintiff by publishing a
nondefamatory statement, Tyler's first and
second claims must fail.
Tyler asserts that his complaint included
the allegation that documents other than the
Gaylor-Marks letter were published to
Brittain. However, the Gaylor-Marks letter
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“|= =
is stressed in Tyler's complaint, and the
only other documents mentioned by Tyler are
his own pleadings and requests for admissions
in the prior cases. Such documents,
authored by Tyler himself, cannot be the
basis of a defamation claim. See Restatement
(Second) of Torts § 558,
II. Outrageous Conduct
Tyler asserts that Fry's Nabe to
Brittain of the subject documents constituted
outrageous conduct, which caused him severe
emotional distress. However, there is
liability for outrageous conduct "only where
the conduct has been so outrageous in
character, and so extreme in degree, as to
go beyond all possible bounds of decency, and
to be regarded as atrocious, and utterly
intolerable in a civilized community. Rugg
v. McCarty, 173 Colo, 170, 476 P. 2d 753
A-8
(1970), citing Restatement (Second) of Torts
3460). Comment d (1965).
"It is for the court to determine, in the
first instance, whether the defendant's
conduct rnay reasonably be regarded as so
extreme and outrageous as to permit recovery.
«ee Blackwell , Del Bosco, 35 Colo. App.
399, 536 P. 2d 838 (1975), aff'd , 191 Colo. 344,
558 P. 2d 563 (1976). We agree with the trial
court's determination that the Gaylor-Marks
letter, which does not contain profane or
insulting language, cannot be considered
outrageous under the Rugg standard. See
Meiter v, Cavanaugh, 40 Colo. App. 454
580 P. 2d 399 (1978).
III. Anticipatory Breach and Conspiracy
In his third claim for relief, Tyler
attempted to allege numerous causes of action
arising out of an anticipatory breach
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of his insurance contract with Hartford,
conspiracy to breach that contract, and
conspiracy to interfere with his practice of
medicine. Although Hartford warned Tyler that
it would not renew his malpractice insurance if
he failed to cooperated with the Risk
Management Committee, that action was not an
anticipatory breach of contract, Under
§ 10-4-109, C. R. S. 1973 (1980 Cum. Supp.),
an insurer is required to provide to the insured
sixty days' advance notice of its intention not
to renew.
Moreover, failure to renew a contract does
not constitute a breach when there is no provi-
sion in the contract for automatic renewal,
Hartford did not cancel Tyler's contract, but
merely failed to renew it when Tyler refused
to cooperate with its investigation. While
§ 10-4-109, C. R. S. 1973 (1980 Cum. Supp.)
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—_—_
prescribes the manner in which a medical
malpractice insurer must effect a nonrenewal,
the statute does not require renewal. Since
there was no breach of the insurance contract,
the trial court correctly dismissed Tyler's
claim of conspiracy to breach the contract.
In an action for civil conspiracy, the
plaintiff must establish that two or more
persons, with an object to be accomplished,
came to a meeting of the minds concerning
that object, and performed one or more
unlawful acts which resulted in damages,
Lockwood Grader Corp. v. Bockhaus, 129
Colo. 339, 270 P. 2d 193 (1954). Tyler asserts
that defendants conspired to interfere with
his practice of medicine by intimidating him
to betray the confidences of his patients and
by depriving him of his medical malpractice
insurance coverage. However, the
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investigation conducted by the Risk Management
Committee was sanctioned by § 12-43, 5-101,
C. R. S. 1973, which provides for committees
of physicians to review the conduct of practice
by other doctors in order to encourage
discipline and control of the practice of
health care, Hartford's investigation into
Tyler's practice, and its subsequent nonrenewal
based on Tyler's failure to cooperate, were
not unlawful acts that could be the basis for
civil conspiracy,
IV. 42 U.S.C, 8 1983
Tyler alleged that defendants, acting under
color of state law, conspired to deprive him
of rights protected by the Fourteenth
Amendment. He theorized that the defendants
acted under color of state law because they
acted pursuant to municipal ordinances of
Brighton and § 10-4-109, C,R.S, 1973 (1980
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Cum, Supp.), the insurance nonrenewal
statute, and as members of the Colorado
Medical Society.
The following elements are required to
maintain a conspiracy claim under 42 U.S.C,
$1983: The defendants must have conspired
together, acted under color of state law,
deprived the plaintiff of a federal right, and
committed overt acts pursuant to the
conspiracy which caused damage to the
plaintiff. Espinoza x. O'Dell, Colo.
633 P. 2d 455 (1981).
Tyler had no federal or constitutional
right to have his malpractice insurance
renewed, No Colorado law requires a
physician to maintain professional liability
insurance coverage as a condition precedent
to practicing medicine in this state. Moreover,
simply following local ordinances and state
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laws does not constitute state action for
purposes of 42 U. S. C. 8 1983 unless a state
statute compels a private party to actina
certain way. Since the state did not mandate
or otherwise compel defendants to consider
nonrenewal of Tyler's policy, there is no
basis for concluding that defendants acted
under color of state law.
V. Discovery .
Tyler cites Miller v, First National Bank,
156 Colo, 358, 399 P. 2d 99 (1965), for the
proposition that the trial court improperly
denied his discovery motions. In Miller,
summary judgment was reversed because
the trial court had abused its discretion in
refusing to grant Miller a continuance to
permit discovery. However, Miller had no
opportunity to conduct discovery, Tyler had
nearly three years to conduct discovery but
failed to exercise the opportunity in any
14
.
om
meaningful way until after defendants had
filed a second motion to dismiss for lack of
prosecution, Under these circumstances,
the trial court's stay of discovery until after
its consideration of the motion for summary
judgment was not an abuse of discretion,
We have examined Tyler's other
contentions of error and find them to be
without merit.
The trial court's judgment and orders
are affirmed in all respects.
JUDGE VAN CISE and JUDGE TURSI
concur.
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IN THE COURT OF APPEALS OF THE
STATE OF COLORADO
Case Number 8IC A015 7
DONALD E, TYLER, )
Plaintiff- Appellant,
.
‘ ) ORDER
THE HARTFORD INSURANCE)
GROUP, FRANCIS FRY, and
ROBERT BRITTAIN,
Defendant - Appellees.
Upon consideration of the Petition for
Rehearing filed by the appellant herein, said
petition is hereby Denied. Unless otherwise
ordered, mandate will issue Feb 4, 1982.
BY THE COURT,
Dated: Jan. 28, 1982
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IN THE SUPREME COURT OF THE
STATE OF COLORADO
No. 82 SC 80 January Term, 1982
DONALD E, TYLER, )
| ) Certiorari to
Petitioner, )
) the Colorado
vs. )
) Court of Appeals
THE HARTFORD INSURANCE)
No. SC A0157
GROUP, FRANCIS FRY, and )
)
ROBERT S. BRITTAIN, )
)
Respondents, )
ON PETITION FOR WRIT OF CERTIORARI
to the Court of Appeals.
After review of the record, the briefs and
the opinion of the Court of Appeals,
IT IS ORDERED by this court that said
petition be, and the same hereby is, denied,
MARCH 29, 1982 By the Supreme Court
Sitting En Banc
(Court Seal)
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9 *
—
7
IN THE DISTRICT COURT IN AND FOR THE
COUNTY OF JEFFERSON
STATE OF COLORADO
Civil Action No. 77CV0782, Div. 4
Donald E. Tyler,
PLAINTIFF,
vs. COMPLAINT
The Hartford Insurance Group,
Francis Fry, Robert 8. Brittain,
eee eee — — —-—
DEFENDANTS
Plaintiff complains of defendants The
Hartford Insurance Croup, Francis Fry, and
Robert 8. Brittain and each of them and for
caise of action alleges:
FIRST CLAIM FOR RELIEF
1. At all times mentioned herein, the plaintiff
Donald E, Tyler was licensed to practice
medicine and surgery in Colorado and was
Admitted to the Bar of the State of Colorado.
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2. At all times mentioned herein defendant
Francis Fry was an employee and agent of
defendant The Hartford Insurance Group and P
was acting in that capacity for Hartford
Insurance Group and within the scope of his
employment.
3. At all times mentioned herein Robert 8.
Brittain was and is a resident of Jefferson
County.
4. On or about June 15, 1976, in Denver,
Colorado, in offices of defendant Hartford
Insurance Group, defendant Fry did publish
various writings to defendant Robert 8.
Brittain including but not limited to a letter
addressed to Galen Marks which is annexed
hereto and labeled EXHIBIT A and is included
by reference as a part of this paragraph, and
other letters making the same state ments.
5. Aforementioned writings on the face
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imputed aad stated and meant without any
exlanation by innuendo that the plaintiff
acted and spoke unprofessionally in conduct of
his practice of medicine and surgery, and were
libelous per se.
6. Furthermore, by innuendo the aforementioned
writings meant to persons reading them
including Robert 8. Brittain that the plaintiff
acted improperly in conduct of his practice
of medicine and surgery, and were defamatory
and libelous.
7, Aforementioned writings, and by innuendo,
are and were false,
8. Aforementioned publications were made by
defendants Fry and Hartford Insurance Group
and each of them to lower the reputation of the
plaintiff, to humiliate and subject him to
ridicule, and in other ways damage him,
9, Aforementioned publications were made
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with a knowledge of their falsity and in
reckless disregard of whether they were true
or not.
10. Aforementioned publications were made
negligently.
ll, Aforementioned publications were made
maliciously, willfully, wantonly, and in
reckless disregard for the rights and feelings
of the plaintiff.
SECOND CLAIM FOR RELIEF
12. Paragraphs | through Il are incorporated
herein by this reference.
13. Defendant Brittain republished
aforementioned written statements by way of
oral communications to various persons known
to defendants and unknown to plaintiff
including but not limited to Wilfred Stedman,
Herbert Rothenberg, James Henderson, and
Carl H. McLauthlin,
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14, Defendants F ry and Hartford are
responsible with Brittain for aforementioned
republication,
15, The time and place of such communications
are known to defendants; to knowledge and
belief of plaintiff they occurred in 1976 and
1977, since June 15, 1976, and in various
places in Colorado including Arapahoe County.
16, Aforementioned publications were
defamatory, and imputed improper conduct
and conduct hazardous to the public and others
by Donald E. Tyler and in his practice of
medicine and surgery.
17. Aforementioned publications were
understood by the persons hearing them
aforementioned as stating that the plaintiff
conducted his practice of medicine and
surgery improperly and unprodfessionally.
18. Aforementioned publications were and
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are false.
19. Aforementioned publications were made
to lower the reputation of the plaintiff, to
humiliate and subject him to ridicule and in
othe: ways damage him,
20. Aforementioned publications were made
negligently, maliciously, willfully, and
wantonly and in reckless disregard for the
rights and feelings of the plaintiff.
21. Aforementioned publications were made
with knowledge of their falsity and in reckless
disregard of whether they were true or not,
THIRD CLAIM FOR RELIEF
22. Paragraphs | through 21 are incorporated
herein by this reference.
23. By way of the foregoing and in other ways
herein described the defendants and each of
them have conspired and continue to conspire
with each other and with other persons
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including but not limited to Galen Marks,
Robert Larsen, Wilfred Stedman, Herbert
Rothenberg, James Henderson, Carl Me Lauthlin,
Orrel Daniel, John Vowell, Brighton
Community Hospital Association, to unlawfully
and wrongfully interfere with and obstruct
the lawful practice of medicine and surgery
by the plaintiff which is continuing, and to
monopolize and control the practice of
medicine and surgery in an area including
Brighton and Fort Lupton, Colorado, and to
wrongfully and unlawfully eliminate competition,
to the detriment of the plaintiff, and the
defendants and each of them have committed and
continue to commit various acts hereinafter
described and listed which have resulted and
continue to result in unlawful elimination of
competition and in unlawful interference with
the professional practice of medicine and
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surgery by the plaintiff,
24. The defendants and each of them have
conspired with each other and with others and
have acted r and unlawfully to coerce
and intimidate the plaintiff to 8 and
breach the confidences of his patients, the
ethics of his profession, and contracts with
his patients and specifically by forcing,
coercing and oppressing him to consent to the
examination of the medical records of his
patients without their consent.
25. The defendants and each of them have
conspired to and have acted oppressively,
wrongfully and maliciously to damage the
insurability of the plaintiff, a valuable right,
and without notice, hearing, or due process
of law for purposes of the foregoing,and in
furtherance of aforementioned conspiracy.
26. At all times mentioned herein, the
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defendants and each of them had and have
knowledge of an insurance contract for
professional liability existing between
plaintiff and defendant The Hartford Insurance
Group and an expectancy by plaintiff and right
by agreement and laws of the State of
Colorado of renewal of such,
27. At all times mentioned herein, the
defendants and each of them had knowledge of
contracts and business relations between
Warren & Sommer, Inc. and the plaintiff,
28. The defendants and each of them have
conspired with each other and with other
persons wrongfully, unlawfully, and in bad
faith to induce breaches of aforementioned
contracts and to breach aforementioned
contracts and have caused damage in
business relationships and have induced
Hartford Insurance Group and Warren &
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Sommer, Inc. to cease doing business with
the plaintiff and to breach the aforementioned
contracts. Notice of such is appended as
EXHIBIT B,
29. The defendants and each of them have in
the foregoing and in other ways harassed and
annoyed the plaintiff and have written and
caused to be written various letters for these
purposes and for purposes of insult, abuse,
and to injure his feelings, and for purposes of
the aforementioned conspiracy.
30, At all times mentioned herein By Laws
of the Medical Staff of Brighton Community
Hospital (BCH), a true and correct copy of
which are annexed hereto as EXHIBIT C, were
in effect subject to dates of amendments
included from November 2, 1973, through
December 31, 1974.
31. At all times mentioned herein Rules and
Regulations of the Medical Staff of BCH, a
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true and correct copy of which are annexed
hereto as EXHIBIT D, were in effect from
November 2, 1973, through December 31, 1974,
32. The defendants and each of them have
conspired to and have committed and continue
to commit and are responsible for the following
acts which have been committed in Brighton,
Colorado:
(a) Wrongful treatment of a minor patient in
1974 by Robert Larsen and BCH in 1974 without
consent of parents to detriment of plaintiff;
(b) Aiding and abetting the practice of
medicine and surgery by persons unlicensed to
practice such in 1974;
(c) Abuses of purposes of committees of the
Medical Staff of BCH by using them for
unauthorized, wrongful and unlawful purposes,
including but not limited to their use to attempt
to force the plaintiff to submit his x-rays for
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re
examination by others to his detriment and to
insult and humiliate him and to the detriment
of his patients in February and March, 1974;
(d) The non-reporting and false reporting of
its activities to the medical staff by the
members of the executive committee of the
Medical Staff of BCH and those acting with
it in 1973 and 1974;
(e) The untimely scheduling of a disciplinary
corrective action hearing concerning and
against the plaintiff without charges, without
written request, without notice or without
adequate notice, without jurisdiction, and
without due process of law; the deciding of
issues subject to hearing without hearing; the
decreasing of the plaintiff's privileges in BCH
including removal from emergency room call
without charges, notice or hearing, without
authority, or jurisdiction, and without due
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—
process of law or equal protection of the law
in 1974;
(f) Making a sham requirement of filing an
application for appointment a requirement for
reappointment of the plaintiff to the Medical
Staff of BCH without authority, without
jurisdiction, and without equal protection,
and denial of reappointment of plaintiff to the
Medical Staff of BCH without recommendation
by the Medical Staff in 1974 and 1975;
(g) Failure to record minutes of meetings and
falsification of records of committees of the
medical staff of BCH in 1974;
(h) Inducement of breaches of contract
between the plaintiff and Brighton Community
Hospital Association and between the plaintiff
and his patients in 1974 and continuing:
(i) Treatment of patients of other physicians
without adhering to the principles of ethics of
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the AMA, and coercion and intimidation to
force the plaintiff to treat patients of other
physicians without adhering to the principles
of ethics of the AMA and denial! of his right to
treat whom he chooses in 1974 and continuing;
(j) Abusive, oppressive, coercive, insulting
and damaging statements by John Vowell,
William Waddell, and Gwen Stieber, and
abusive, insulting and damaging written
public ations by John Vowell, Galen Marks, and
others in .
(k) Abuse, insult, and denial of equal rights
and equal protection under the law by
withholding an application form from plaintiff
for purported but sham purpose of evaluation
for reappointment to the medical staff, and
later providing one on an unequal basis with
‘other staff members of BCH in 1974;
(1) Deprivation of plaintiff of Emergency
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Room call schedules, a valuable property,
without due process and without jurisdiction
or authority in November and December, 1974;
(m) Decrease of privileges in BCH of Donald
Fern, D. O., without charges, notice, hearing,
or due process of law in December 1973,
January and February 1974;
n) Denial of reappointment to the Medical
Staff of BCH of Donald Fern, D.O., without
charges, notice, hearing, or due process,
and without recommendation by the medical
staff in 1974 and 1975 and continuing;
(o) Decrease in the privileges in BCH of
Merrill Shidler, M. D., without charges,
notice, hearing, due process, and without
authority or jurisdiction in 1975;
(p) Decrease in the privileges in BCH of
Buel Hutchinson, M. D., without notice or
hearing, without due process of law, and in
breach of the By Laws of the Medical Staff of
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BCH in 1976;
(q) Breach of fiduciary duty to recommend
plaintiff for membership to the medical
staffs of other hospitals in 1974,1975 and
continuing, thereby black-listing the
plaintiff,
33. The foregoing acts were all done and
continue to be done in bad faith, arbitrarily,
capriciously, unreasonably, in breach of
fiduciary duties, contracts and agreements,
and in breach of the By Laws, Rules and
Regulations of the Medical Staff of BCH.
34. By the unlawful and wrongful acts,
methods, means and ways aforementioned
the defendants and each of them have and
continue to wrongfully and unlawfully
- interfere with and obstruct the practice of
medicine and surgery of the plaintiff.
FOURTH CLAIM FOR RELIEF
35. Paragz aphe | through 34 are
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incorporated herein by this reference.
36. At all times mentioned herein until April,
1975, ordinances of the municipality of
Brighton, Colorado, numbered 421, 422, 423,
and 424 annexed hereto as EXHIBITS E,F,G,
and H were in effect.
37. The right to practice medicine and
surgery in Brighton Community Hospital at
all times mentioned herein was and is protected
by the Constitution of the United States of
America by agreement by the aforementioned
By Laws.
38, The defendants and each of them
committed the foregoing acts under color of
the aforementioned ordin ances of the
municipality of Brighton, Colorado, and the
State of Colorado,
39. At all times mentioned herein defendant
Robert 8. Brittain and co-conspirators
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Stedman, Rothenberg and Henderson were
members of the Risk Management Committee
of the Colorado Medical Society and were
acting under color of that office.
40. The defendants and each of them and their
co -conspirators committed the foregoing acts
and conspiracies under color of CRS, 1973,
10-4-109 amended.
41. The defendants and each of them have
conspired to and have deprived the plaintiff of
valuable rights protected by the Constitution of
the United States and the 14th Amendment
thereto without due process of law and
without equal protection of the law,
FIFTH CLAIM FOR RELIEF
42. Paragraphs | through 41 are incorporated
herein by this reference.
43. The foregoing acts were and are
outrageous and they were and are being
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3
committed for the purposes of coercion,
intimidation, abuse, insult and to intentionally
cause the plaintiff mental suffering, anxieties
and severe emotional distress.
ALLEGATIONS CONCERNING EACH CLAIM
FOR RELIEF IN THE ALTERNATIVE AND
JOINTLY
44. As a direct and proximate result of the
foregoing the plaintiff has suffered and
continues to suffer loss of time, loss of
income, loss of earning capacity, damage to
his professional reputation, damage to his
professional insurabiiity, breach of valuable
contracts and other special damage. Such
special damage is permanent and continuing
and the exact amount is unascertainable at
this time and plaintiff prays leave to insert
the amount herein when it is ascertained.
45. Asa direct and proximate result of the
foregoing the plaintiff has suffered and
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continues to suffer worries, mental suffering,
severe emotional distress, and such are
expected to continue, and other general
damage in amount of five million dollars,
46. The acts related in each of the foregoing
claims for relief were committed oppressively,
willfally, wantonly and maliciously, and in
reckless disregard for the rights and feelings
of the plaintiff,
47. The plaintiff is being irreparably and
permanently injured and damaged; this
damage is continuing and increasing with time;
multiple suits will be required unless the
issues are promptly resolved; and legal
relief is inadequate.
WHEREFORE, plaintiff prays for relief
as follows:
1. Special damages;
2. General damage in the amount of five
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million dollars ($5,000, 000. 00;
3. Punitive damages in the amount of
fifteen million dollars ($15,000, 000, 00);
4. Costs of suit;
5. Early trial of this matter,
Dated: April 25, 1977 By: [signed]! N, E, Tyler
Donald E, Tyler
Attorney for Plaintiff
1790 East Bridge Street
Brighton, Colo 80601
telephone 659-4581
Supreme Court Regis
#001401
PLAINTIFF DEMANDS A JURY TRIAL OF THE
ISSUES HEREIN
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gaylor’'s FOOD STORE, INC,
540 Bridge Street. Brighton, Colo
July 3, 1974
Dr. Galen Marks
Chief of Staff
Brighton Community Hospital
Dear Galen:
On Thursday June 27th, 1974 at approxi-
mately 5:30 PM I brought my Aunt Miss
Margaret Schroer to Brighton Community
Hospital for emergency treatment, She
received a bad cut on her leg from a lawn
mower accident which needed medical
attention, The action taken by Dr, Tyler who
was on duty was very distressing to me, my
family and friends. After discussion with
Dale Alter I am writing this letter to the
Board and Chief of Staff asking that the
situation be reviewed and corrected.
EXHIBIT A
A-39
The decision by Dr, Tyler was that my
Aunt Miss Schroer should seek medical
attention elsewhere because she was not and
probably would not be a patient of his. The
whole discussion and situation was very
unprofessional and is not in my opinion the
reason for which Brighton Community Hospital
was built. It is my feeling that the Hospital
was built to serve all citizens of the Brighton
area and in particular admister emergency
treatment to anyone regardless of who they
are and regardless of who there Doctor is.
This type of situation can only hurt the
Image of Brighton Community Hospital and I
support action to correct what I feel is the
wrong approach in dealing with people who
need attention and the service of Brighton
Community Hospital,
A- 40
WARREN & SOMMER INCORPORATED
SUITE 500/3855 EAST EXPOSITION
DENVER,COLORADO 80209
TELEPHONE 303-744-3711
March 29, 1977
Donald E. Tyler, M. D.
1790 E. Bridge Street
Brighton, Colorado 80601
Dear Dr. Tyler:
On November |, 1976, the Risk Management
Committee of the Colorado Medical Society
requested permission to look at your medical
records, On November 28, 1976, Dr. Robert
S. Brittain received a supoena from you
requesting a deposition from your attorney,
This deposition was carried out on January 4,
1977 and, following that deposition, Dr,
Brittain advised your attorney that the Risk
Management Committee would still want
EXHIBIT B
A-42
permission to examine your ER records,
As of March 28, 1977, the Risk Manage-
ment Committee has not received your
permission to review your records, I would
like to point out that the Risk Management
Committee has reviewed (with the doctor's
permission) many doctors records in
Colorado.
Your professional Liability coverage is
due for renewal on December II, 1977, and
this is to advise you we will be unable to offer
renewal of the Professional Liability coverage
because of your failure to cooperate with the
Risk Management Committee of the Colorado
Medical Society.
Should you have any questions, please do
not hesitate to give me a call,
Sincerely,
(signed) Bill Buck---
A-43
n
William M, Buckman
Vice President
WMB/jg
cc: Wilfred Stedman, M. 9.
Robert 8. Brittain, M. D.
Thomal Mitchell, Hartford
ONE OF THE SEVENTY WORLDWIDE
OFFICES OF ASSUREX INTERNATIONAL
INSURANCE BROKERS
— —
A- 44
+ (Exhibit C consists of 27 type written pages.
Es pertinent parts are excerpted herein)
BY LAWS OF THE MEDICAL STAFF OF
BRIGHTON COMMUNITY HOSPITAL
PREAMBLE ...
ARTICLE Il: SUPREMACY OF LAW
l, The constitution of the United States and
the State of Colorado, the laws of the United
States and the State of Colorado and the laws
of the City of Brighton are supreme to any
rules, bylaws and constitution of the medical
staff of Brighton Community Hospital,
2. All rights under the constitutions of the
United States, Colorado and laws of the State
of Colorado and the United States apply and
are available to the members of the staff of
this hospital and specifically in reference to
their practice in this hospital and membership
EXHIBIT C A-45
in the Medical Staff,
ARTELE IV: MEDICAL STAFF MEMBERSHIP
Section |, Nature of Medical Staff Membership
Membership on the medical staff of Brighton
Community Hospital is a privilege which
shall be extended only to professionally
competent physicians, dentists and podiatrists
who continuously meet the qualifications,
standards and requirements set forth in these
bylaws.
Section 2. Qualifications for Membership.
a. Only physicians, dentists and podiatrists
licensed to practice in the State of Colorado
shall be qualified for membership on the
medical staff. No physician, dentist, or
podiatrist shall be entitled to membership on
the medical staff or to exercise of particular
clinical privileges in the hospital merely by
virtue of the fact that he is duly licensed to
A-46
N
Pm nat
practice medicine, dentistry, or podiatry in
this or any other state, or that he is a
member of any professional organization, or
that he had in the past, or presently has, such
privileges at another hospital.
d. Acceptance of membership on the medical
staff shall constitute the staff member's
agreement that he will strictly abide by the
Principles of Medical Ethics of the American
Medical Association, the Code of Ethics of the
Dental Association, or the Code of Ethics of
the American Podiatry Association,
whichever is applicabie, as the same are
appended to and made a part of these bylaws,
Section 3. Conditions and Duration of
Appointment.
a. Initial appointments and reappointments to
the medical staff shall be made by the
governing body. The governing body shall
A-47
* .
E *
act on appointments, reappointments, or
revocation of appointments only after there
has been a recommendation from the medical
staff as provided in thes bylaws; provided that
in the event of unwarranted delay on the part
of the medical staff, (exceeding 3 months),
the governing body may act without such
recommendation on the basis of documented
evidence of the applicant's or staff member's
professional and ethical qualifications
obtained from reliable sources other than the
medical staff, (Comment: When acting in
the event of an unwarranted delay, the
governing body must base its decision upon
the same kind of information as is usually
considered by the medical staff. For the
purposes of this section, unwarranted delay
generally means 3 months from the date that
the fully completed application has been
A-48
received by the medical staff, )
d. Initial appointments shall be for a period
extending to the end of the current medical
staff year of the hospital. Reappointments
shall be for a period of not more than one
medical staff year. For the purpose of these
bylaws the medical staff year commences on
the first day of January and ends on the Zlst
day of December of each year.
c. Appointments to the medical staff shall
confer on the appointee only such clinical
privileges as have been granted by the
governing body, in accordance with these
bylaws.
d. Every application for staff appointment
shall be signed by the applicant and shall
contain the applicant's specific acknowledge-
ment of every staff member's obligations to
read and abide by the medical staff bylaws,
A-49
rules and regulations. ...
ARTICLE VI: PROCEDURE FOR
APPOINTMENT AND REAPPOINT MENT
Section |. Application for Appointment.
a. All applications for appointment to the
medical staff shall be in writing, shall be
signed by the applicant, and shall be submitted
on a form prescribed by the medical staff.
The application shall contain detailed
information 3 the applicant's
professional qualifications, and two letters
of recommendations by physicians and a
letter containing a summation of an interview
by an Active Staff member appointed by the
acting Chief of Staff.
b. The applicant shall have the burden of
producing adequate information for a proper
evaluation of his competence, character,
ethics and other qualifications, and for
A-50
resolving any doubts about such qualifications.
c. The completed application shall be
submitted to the Chief Executive Officer,
who will within 7 days transmit the application
and all supporting materials to the secretary
of the Staff for medical staff action, with his
written recommendation regarding the
application.
d. By applying for appointment to the
medical staff, each applicant thereby
signifies his willingness to appear for
interviews in regard to his application,
authorizes the hospital to consult with
members of medical staffs of other hospitals
with which the applicant has been associated
and with others who may have information
bearing on his competence, character and
ethical qualifications, consents to the
hospital's inspection of all records and
A-51
documents that may be material to an
evaluation of his professional qualifications
and competence to carry out the clinical
privileges he requests as well as his moral
and ethical qualifications for staff membership,
releases from
any liability all representatives of the
hospital and its medical staff for their acts
performed in good faith and without malice
in connection with evaluating the applicant and
his credentials, and releases from any
liability all individuals and organizations who :
provide information to the hospital in good
faith and without malice concerning the
applicant's competence, ethics, character
and other qualifications for staff appointment
and clinical privileges, including otherwise
privileged or conficential information. ...
3. The application form shall include a
A-52
1
statement that the applic ant has received and
read the bylaws of the hospital governing body
and the bylaws, rules and regulations of the
medical staff and that he agrees to be bound
by the terms thereof if he is granted
membership and/or clinical privileges and to
be bound by the terms thereof without regard
to whether or not he is granted membership
and/or clinical privileges in all matters
relating to consideration of his application.
Section 2. Appointment Process,
a. The complete application with recommend-
ations in writing from the chief executive
officer shall be presented to the medical
staff for initial reading by the secretary of
the medical staff at the next regular staff
meeting.
b. Second reading shall occur at the
following regular staff meeting. At this
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time the application shall be approved with
clinical privileges as delineated or deferred
or disapproved. After final action the
application shall be forwarded to the governing
body with recommendations by the medical
staff.
Section 3. Reappointment Process,
a. At least 90 days prior to the final
scheduled Board of Directors meeting in the
medical staff year, the executive committee
shall review all pertinent information
available on each practioner scheduled for
periodic appraisal, for the purpose of
determining its recommendations for
reappointments to the medical staff and for
granting of clinical privileges for the ensuing
period, and shall transmit its recommenda-
tions, in writing to the medical staff. If
nonreappointment or a change in clinical
privileges is recommended, the reason for
A-54
7
N
such recommendation shall be stated and
documented, The 30 or more days prior to the
final scheduled Board of Director's meeting
in the medical staff year, the medical staff
shall present its recommendations.
d. Each recommendation concerning the
reappointment of a medical staff member and
the clinical privileges to be granted upon
reappointment shall be based upon such
member's professional competence and
clinical judgment in the treatment of patients,
his ethics and conduct, his attendance at
medical staff meetings and participation in
staff affairs, his compliance with the
hospital bylaws and the medical staff by rules
and regulations, his cooperation with hospital
personnel, his use of the hospital's facilities
for his patients, his relations with other
practitioners, and his general attitude
A-55
toward patients, the hospital and the
public
ARTELE VU: CLINE AL PRIVILEGES
Section |. Clinical Privileges Restricted.
(Comment: Applications for additional
clinical privileges must be in writing and will
be processed in the same manner as applica-
tions for initial appointment.) ...
ARTE LE VII: CORRECTIVE ACTION
Section l. Procedures
a. Whenever the activities or professional!
conduct of any practitioner with clinical
privileges are considered to be lower than
the standards or aims of the medical staff or
to be disruptive to the operations of the
hospital, corrective action against such
practitioner may be requested by any
member of the active staff, by the chief
executive officer, or by the governing body.
A-56
~~ -—-)h
All requests for corrective action shall be in
writing, shall be made to the executive
committee, and shall be supported by
reference to the specific activities or conduct
which constitute the grounds for the request,
b. Whenever the corrective action could be a
reduction or suspension of clinical privileges,
the executive committee shall schedule a
hearing to be held within 30 days. Notice of
such hearing shall be given in writing by
certified mail with return acknowledgement
of receipt prior to 15 days of such hearing.
c. The executive committee shall conduct
the hearing and be responsible for making
the record of its conduct, findings and
recommendations.
d. The executive committee shall submit its
report, including its findings and
recommendations to the medical staff at its
next regular or special meeting.
A-57
|e a
e. The medical staff may then make
recommendations to the governing body. The
involved practitioner has a right to a
hearing before the governing body prior...
Section 2. Summary Suspension. ...
ARTE LE X: Committees
Section l. Executive Committe
>
Section 2. Professional Activities Committee.
a. Composition: The professional activities
committee shall consist of the active medical
staff.
b. Functions: It shall be responsible for
staff functions relating to Medical Records,
«e+ Emergency Room and Out Patient
Services,...
c. These functions will be facilitated by
subcommittees. ...
d. Subcommittees:
(1) Medical Records Audit Subcommittee: ...
A-58
ay a =. - fs <2 „ * a —
2 a +” Ae 5
7 *
4
*
(7) Emergency Room and Outpatient
Subcommittee: ... |
ARTICLE XI: COMMITTEE AND
SUBCOMMITTEE MEETINGS
«++ Section 5. Minutes ... Each committee
and subcommittee shall maintain a permanent
file of the minutes of each meeting. ...
AMENDMENT TO BY-LAWS
eee I. Repeal of Article VII Sectionl, c, d, e;
Section 2, a.
2. Section |, c, to read as follows:
The executive committee shall conduct the
hearing and be responsible for making a
verbatim written record of the hearing, its
findings, and recommendations. The
findings and recommendations shall be
mailed to the involved practitioner by
certified mail with return receipt or
delivered in person to the involved
practitioner within 48 hours of conclusion of
A-59
said hearing. The involved practitioner and
the executive committee shall have the right
to the presence and advice of legal counsel,
3. Article VIII, section |, d, to read as follows:
The executive committee shall present its
report including its findings and recormmenda-
tions to the medical staff at its next regular or
special meeting after 5 days after afore men
tioned hearing. The medical staff shall not
take any action until its following regular or
special meeting and not within fifteen days nor
later than the next staff meeting after
fifteen days after being presented the
executive committee report. A hearing de
novo shall be held by the medical staff at the
written request of the involved practitioner
and delivered to the acting president of the
medical staff more than five days prior to the
meeting designated for 1 upon the
A-60
a
executive committee report. At the request
of any member of the medical staff, the
executive committee shall report to the
medical staff the complete verbatim record
of its hearing, and the executive committee
shall furnish any staff member at his request
a complete verbatim written record of its
hearings. The involved practitioner and
medical staff shall have the right to the
presence and advice of legal counsel,
4. Section I, e, to read as follows:
The medical staff may then make
recommendations to the governing body. A
vote of at least 2/3 of the active medical staff
present shall be required for making any
recommendations to the governing body which
are adverse or unfavorable to the involved
practitioner,
5. Article VIII, Section 2, a, to read as
A-61
. N — 0 aoe
follows: ... Summary suspension is to be
ordered by the Chief Executive officer only
when medical care by the practitioner is
believed to very seriously immediately
jeopardize care of patients. It is to be used
sparingly, only to the extent or degree
necessary and only when other reasonable and
potentially less damaging means cannot be
employed to effect the necessary protection
of patients. ...
Adopted by the active Medical Staff on
March I, 1974 ....
Approved by the Governing Body on 5-23,1974
A-62
o>
.
RuUlLEs AND REGULATIONS OF THE MEDK AL
STAFF OF BRIGHTON COMMUNITY
HOSPITAL
(This Exhibit D of the complaint consists of
14 single-spaced 8 1/2" by U“ pages. Part
is excerpted here)
A. Admissions and Discharge of Patients
B. Medical Records...
F. Emergency Services
1. Policy on Admission of Patient to
Emergency Service
2. The Medical Staff will provide Emergency
Roo n care
6. There shall be a monthly review of the
Emergency Medical Record by the
EXHIBIT D
A-63
Professional Activities Committee to
evaluate the quality of emergency medical
care
ADOPTED by the active medical staff
6 July, 1973.
APPROVED BY THE GOVERNING BODY
on July 23, 1973
A-64
ORDINANCE NO, 421
(This Exhibit E of the complaint consists
of 8 single-spaced, legal size pages. Part is
excerpted here)
AN ORDINANCE AUTHORIZING, CONFIRMING
LEASING WITH OPTION TO PURCHASE AND
SETTING OUT THE TERMS OF SAID LEASE
PURCHASE AGREEMENT BETWEEN THE
CITY OF BRIGHTON, COLORADO AND THE
BRIGHTON DEVELOPMENT COMPANY, A
COLORADO CORPORATION, SAID PROPERTY
TO BE USED AND OPERATED AS A HOSPITAL,
COMMITTING THE CITY TO RENTAL
PAYMENTS AS SET OUT IN THIS
ORDINANCE, APPROPRIATING MONEY
FOR RENTAL PAYMENTS AND DECLARING
AN EMERGENCY, ...
The above described property and the
improvements thereon to be used as a
EXHIBIT E
A- 65
public community hospital. cee
It is further understood and agreed that in the
event of defaults as herein provided, the City
shall remain liable for the balance of the
rent herein reserved... The City agrees
to keep the property herein described insured
«ee The City covenants and agrees to equip,
supply and operate said hospital structure as
a public and community hospital... The
City may exercise this option and purchase
said property for the sum... ($19,712) on
or after April |, 1975 and until June l, 1975...
12. All rental payments or purchase
payments shall be made by the City from any
available City income, lawfully imposed
property taxes, , or income from sub-
leasing the property for each fiscal year, and
the City covenants and agrees, when all
other sources of income or revenue are
A-66
insufficient in part or in whole, to impose
a general levy upon both personal and real
property included within the boundaries of the
City .... 10th day of November 1959...
Passed on second and final reading this 24
day of November, A. D. 1959
(signed) J, William Wells
Mayor
A-67
ORDINANCE NO, 422
(This Exhibit F of the complaint consists of
7 single-spaced legal sized typewritten pages.
Part is excerpted here, )
AN ORDINANCE AUTHORIZING, CONFIRMING,
SUBLEASING WITH OPTION TO PURCHASE
AND SETTING OUT THE TERMS OF SAID
SUBLEASE PURCHASE AGREEMENT
BETWEEN THE CITY OF BRIGHTON,
COLORADO AND THE BRIGHTON
COMMUNITY HOSPITAL ASSOCIATION,
SAID PROPERTY TO BE USED AND
OPERATED AS A HOSPITAL, AND
DEC LARING AN EMERGENCY,
. for the promotion of the public order,
health, safety, welfare, security, prosperty,
and general welfare and good of the people
of the City of Brighton, Colorado, and the
public in general in order to secure
EXHIBIT F
A-68
sae -
equipment for and the operation of a public
and community hospital. eee
The Sublessee agrees and covenants to staff,
operate, equip, supply and maintain said
structure as a public and community hospital...
City agrees to pay any and all taxes, if any,
which may be lawfully satiate against
said hospital property. ...
Passed on second and final reading this
24 Day of November, A. D. 1959,
(signed) J, William Wells
Mayor
A-69
nnn, *
ORDINANCE NO, 423
(This Exhibit G of the complaint consists
of 9 single-spaced, legal size typewritten |
pages. Part is excerpted here)
AN ORDINANCE AUTHORIZING, CONFIRMING,
LEASING WITH OPTION TO PURCHASE AND
SETTING OUT THE TERMS OF SAID LEASE
PURCHASE AGREEMENT BETWEEN THE
CITY OF BRIGHTON, COLORADO AND THE
BRIGHTON DEVELOPMENT COMPANY T.
COMMITTING THE CITY TO RENTAL
PAYMENTS...
The above described property and the
improvements thereon to be used as a
public and community hospital, and/or for
medical care and treatment and/or for
nursing care for the people. . Structure or
building as the terms are herein used means
the 40 bed hospital or building
A-70
EXHIBIT G
12. All rental payments or purchase
payments shall be made by the City from
any available City income, lawfully imposed
property taxes, ...
Second publication on the 26th day of
November, A.D, 1959.
A-71
ORDINANCE NO, 424
(This Exhibit H of the complaint consists
of 8 single-spaced typewritten legal size
pages. Part is excerpted here)
AN ORDINANCE AUTHORIZING, CONFIRMING,
SUBLEASING WITH OPTION TO PURCHASE
AND SETTING OUT THE TERMS OF SAID
SUBLEASE PURCHASE AGREEMENT
BETWEEN THE CITY OF BRIGHTON,
COLORADO, AND THE BRIGHTON
COMMUNITY NURSING HOME ASSOCIATION,
SAID PROPERTY, TO BE USED AND
OPERATED AS A HOSPITAL, AND/OR FOR
MEDICAL CARE AND TREATEMENT AND/
OR FOR NURSING CARE AND TREATMENT
OF PEOPLE NEEDING/DESIRING SUCH
CARE AND TREATMENT, ...
EXHIBIT H A-72
. Bp Ps > —
* „
in order to secure the operation of a
public and community hospital, and/or for
medical care and treatment and/or for
nursing care... Sublessee agrees to
continue to pay into the fund as herein
provided so long as the Brighton
Community Hospital Association is liable to
the City for any rental payments
Passes on second and final reading this
24 day of November, 1959
(signed) J. William Wells
Mayor eee
A-73
IN THE DISTRICT COURT IN AND FOR THE
COUNTY OF JEFFERSON
STATE OF COLORADO
Civil Action No. 77CV0782 Div. 4
Donald E. Tyler,
PLAINTIFF
AMENDMENTS TO
vs.
COMPLAINT
The Hartford Insurance
Group, Francis Fry,
Robert S. Brittain,
— eee eee ee eee ee ee
DEFENDANTS
COMES NOW the plaintiff to arnend his
complaint prior to responsive pleading in
accord with Rule 15 (a) of the Colorado Rules
of Civil Procedure as follows:
1. Paragraph 25 is amended to read as
follows:
25. The defendants and each of them
have conspired to and have acted
A-74
oppressively, wrongfully and maliciously
to damage the insurability of the plaintiff for
medical professional liability or malpractice _
insurance, a valuable right, and without
notice, hearing, or due process of law for
purposes of the foregoing, and in furtherance
of aforementioned conspiracy.
2. The first part, to the colon, of paragraph
| 32 is amended to read as follows:
32. The defendants and each of them have
conspired to and have committed and
continue to commit and are responsible for
the following acts which have been committed
in Brighton, Colorado; and the defendants
and each of them had knowledge of all of the
following enumerated acts which may have
occurred prior to their joining the
aforementioned conspiracy and which may
have occurred prior to their joining the
A-75
aforementioned conspiracy and which may have
occurred prior to their committing acts
alleged in paragraphs | through 29 in
furtherance of and pursuant to the aforemen-
tioned conspiracy: (the remainder of
paragraph 32 is unchanged)
3. Immediately to follow paragraph 37, a new
paragraph 37A is added as follows:
37A. At times mentioned herein,
conspirators Galen Marks and Robert Larsen
were officers of the Medical Staff of Brighton
Community Hospital, conspirator John
Vowell was administrator of Brighton
Community Hospital, and previously
named conspirator Dale Alter was
President of the Board of Directors of the
Brighton Community Hospital Association,
and these conspiratars acted under color
of those offices,
4. Paragraph 39A is added to immediately
A-76
follow paragraph 39 as follows:
39A. Conspirator Carl McLauthlin was
at times mentioned herein President of the
Colorado Medical Society and was acting
under color of that office,
5. Paragraph 40 is amended to read as
follows:
40. The defendants and each of them and
each of their co-conspirators committed and
continue to commit the forgoing acts and
conspiracies under color of the aforementioned
municipal statutes of Brighton, Colorado, a
subdivision of the state of Colorado, and
under color of various other state laws and
statutes regulating the insurance business,
regulating hospitals, and statutes, rules and
regulations relating to the Colorado
Medical Society including but not limited to
C. R. S. 1973, amended, 10-4-109, 13-21-110,
A-77
13-90-107,
5. New paragraph 40A is added to immediately
follow paragraph 40,
40A, Exhibits Iand J appended hereto and
annexed as a part of this complaint are copies |
of letters caused by the defendants to be sent
to the plaintiff pursuant to the foregoing.
6. Paragraphs 25 and 32 as amended are
incorporated in paragraph 35, and paragraphs
25, 32, 37 A, 39 A, 40 and 40A as amended are
incorporated in paragraph 42.
By (signed) D, E, Tyler
Donald E. Tyler
Regis, #001401
Attorney for plaintiff
1790 E. Bridge St.
Brighton, Colo 80601
659-4581
A-78
November l, 1976
b. E. Tyler, xl. D.
1790 Bridge Street PERSONAL AND
Brighton, Colorado CONFIDENTIAL
Dear Dr. Tyler:
The Risk Management Committee of the
State Medical Society has been made aware of
the suits which you have pending against
members of the Staff and Board of the
Brighton Community Hospital, It is
furthermore aware of a letter written by the
husband of a patient that you contacted in
Brighton Community Hospital Emergency
Room which apparently was one of the
instigating factors in your suit against this
gentleman, This information is hearsay
only.
The Risk Management Committee of the
EXHIBIT I
A-79
Colorado Medical Society exists for the
purpose of investigating areas where there is
potentially an increased risk of malpractice
cases against physicians insured by the
Colorado Medical Society-Hartford program,
Since, after reviewing some 600 claims in this
state over five and one half years, the Risk
Management Committee is aware that the
angry patient is the one most likely to sue, the
Committee is requesting your written
permission to examine a Se sample of
hospital records at the Brighton Community
Hu. pital in which you were the primary
physician. It is our understanding that you
have practiced very little, if any, at that
hospital in recent nonths or perhaps the last
year or two and consequently the permission
would have to include a review of the cases
when you were more active there, The
reason for this review is to assure the
A-80
Committee that the quality of these records
is sufficient for defense, if a case were
brought against you (with or without merit),
For your information House Bill 91 passed
by the last session of the Colorado Legislature
and signed into law effective July I. 1976, gives
permission to committees such as the Risk
Management Committee to request such
permission in writing. If you wish, a copy
of this bill may be obtained from the
headquarters of the Colorado Medical
Society. The Risk Management Committee
would request such permission in writing no
later than 30 days after receipt of this
letter.
Sincerely,
(signed) Robert 8. Brittain, M. D.
ROBERT S, BRITTAIN, M.D,
Chairman, Risk Management Committee
A-81
CMS
COLORADO MEDE AL SOCIETY
1601 East 19th Avenue
Denver, Colorado 80218. Phone (303)534-8580
August 23, 1977
Donald Tyler, M. D.
1790 East Bridge St.
Brighton, CO 80601
(CE RTIFIED MAIL)
Dear Dr, Tyler:
The Risk Management Committee of the
Colorado Medical Society has received
information from past Emergency Room
records that your hospital records may be
deficient in documentation of history,
physical, and patient instruction, The
Committee is requesting permission for a
physician selected by them to inspect your
records at whatever hospital you have used
EXHIBIT J
A-82
Pe
to see Emergency patients in the past two
years and to report back to the Risk
Management Committee. Would you please
complete the enclosed form and return it to
me,
For your information, 13-90-107, C. R. 8.
1973, as amended allows committees such as
the Risk Management Committee of the
Colorado Medical Society to examine records
of patients if the physician gives such
permission, Permission of the patient is not
required. If you have any questions, I can be
reached at 442-4660,
Very sincerely,
(signed) J. H. Poynter
Joseph H. Poynter, M. D.
Chairman, Risk Management Committee
HP: pie
A-83
—
CMS
COLORADO MEDE AL SOCIETY
1601 East 19th Avenue
Denver, Colorado 80218, Phone(303)534-8580
TO: Chairman, Risk Management Committee
Colorado Medical Society
(Certified Mail)
I, Donald Tyler, M. D,, do hereby authorize
a representative of the Risk Management
Committee of the Colorado Medical Society to
examine my medical records at whatever
hospitals I have used to see Emergency
patients in the past 2 years and to report
those findings back to the Risk pee
Committee. I understand that 13-90-107,
c. R. S. 1973, as amended, allows committees
such as the Risk Management Committee of
the Colorado Medical Society to examine
records of patients if the physician gives
A-84
Sea SE
36 ‘ *
1 *
as
Se
«
1 *
—
such permission, Permission of the patient
is not required.
(unsigned)
(Signature) Donald E. Tyler, M.D.
(undated)
(date)
A-85
COLORADO COURT OF APPEALS
NO. 77-894
DONALD E, TYLER,
Plaintiff- Appellant, NOT SELECTED
ve FOR
DONALD GAYLOR PUBLK ATION
and DALE ALTER, NOT TO BE
Defendants-Appellees, CITED AS
and PRECEDENT IN
)
)
)
)
)
)
)
)
)
)
)
)
)
)
DONALD E, TYLER, ) ANY COLORADO
° )
Plaintiff- Appellant, ) COURT
)
v. )
)
GAYLOR'S FOOD STORE,)
)
NC., MARGARET )
)
MUMBY, DONALD GAY -)
)
LOR, WILMAGAYLOR )
)
and MAUDE GAYLOR, )
)
)
Defendants -Appel-.ees
A-86
Shee
Appeal from the District Court of Adams
County Honorable Dean Johnson, Judge
JUDGMENTS AFFIRMED
DIVISION Il
Opinion by JUDGE SMITH
Ruland and Sternberg, jj. » concur
Donald E. Tyler Pro se
Ontario, Oregon
Stephen Dawson
Littleton, 8
Paul D. Renner, P. C.
Denver, Colorado
Attorneys for Defendant- Appellee
Dale Alter
Gaunt, Dirrim and Coover
Bradley Coover
Brighton, Colorado
Attorneys for Defendants- Appellees
Donald, Wilma, and Maude Gaylor
A-87
Littell, Everstine & Kickinson
Gilbert Dickinson
Duane Littell
Denver, Colorado
Attorneys for Defendants - Appellees
Gaylor's Food and Margaret Mumby
Opinion filed and judgment 1 t he
14th day of June, 1979 Clerk of the Court
Mac V. Danford
Plaintiff Tyler, a practicing physician
and attorney, filed suit against defendants
Dale Alter and Donald Gaylor for libel.
Tyler therafter filed another complaint
against Gaylor and others alleging a civil
conspiracy on the part of the defendants
designed to interfere with Tyler's practice
of medicine. The two actions were
consolidated and following a trial to a jury,
verdicts were returned, and judgment was
A-88
0
entered for defendants on all issues. Tyler
appeals, and we affirm the judgments,
I
The Libel Action
On June 27, 1974, Donald Gaylor brought
his aunt, Margaret Schroer, to the Brighton
Community Hospital emergency room to be
treated for a superficial cut on the let, After
examining Schroer, Tyler refused to treat
her, and Schroer then went to a hospital in
Denver for treatment. Gaylor therafter
complained to Dale Alter, Chairman of the
Board of Directors of Brighton Community
Hospital Association, Alter requested that
Gaylor put his complaint in writing, and
Gaylor thereafter mailed a letter to Alter,
Alter in turn gave copies of the letter to
board members and others connected with
the hospital, The letter is as follows:
A-89
a ee
"July 3, 1974
Mr. Dale Alter
3 ) Chairman of the Board of Directors
Brighton Community Hospital
Dear Dale:
1 On Thursday, June 27, 1974 at approximately
5:30 p.m. I brought my aunt, Miss Margaret
Schroer to Brighton Community Hospital
for emergency treatment. She had received
a bad cut on her leg from a lawn mower
accident which needed medica! attention, The
action taken by Dr. Tyler who was on duty was
very distressing to me, my family and my
friends, After discussion with Dale Alter,
Iam writing this letter to the board and
chief of staff asking that the situation be
reviewed and corrected,
The decision by Dr. Tyler was that my
aunt, Miss Schroer, should seek medical
A-90
attention elsewhere because she was not
and probably would not be a patient of his, The
whole situation was very unprofessional and
is not in my opinion the reason for which
Brighton Community Hospital was built. It is
my feeling that the hospita! was built to serve
all citizens of the Brighton area and in
particular adminster emergency treatment
to anyone regardless of who they are and
regardless of who there doctor is.
This type of situation can only hurt the
image of Brighton Community Hospital and I
support action to correct what I feel was the
wrong approach in dealing with people who
need attention and the service of Brighton
Community Hospital,
Sincerely,
Donald G. Gaylor."
A-91
1
.
g
The trial court determined as a matter of
law that this letter was libelous per se as it
related to Tyler. We are not bound by this
conclusion since questions of law decided by
the trialcourt are reviewable upon appeal,
American National Bank v. Christensen,
28 Colo. App. 501, 476 P. 2d 281 (1970), and
we disagree with the trial court's ruling.
It is a question of law whether any
specific communication is defamatory and
thus constitutes libel or slander. Downing v.
Brown, 3 Colo. 571 (1877). In our view, the
ene en at issue here is not defamatory
and thus is not actionable, It is well settled
that mere words of opinion indicating that a
defendant dislikes a plaintiff or does not
respect him are not actionable. See Gertz
v. Welch, 418 U.S. 323, 94 8. Ct. 2997, 41
L. Ed, 2d 789 (1974). The words used here
A-92
merely demonstrate Gaylor's strong
disagreement with the way the incident in the
emergency room was handled, There is no
assertion that the facts which Gaylor recites
in the letter are untrue, and his opinion is
based solely upon those facts, The letter
does not imply that there are, nor does it
refer to any undisclosed facts. Expression of
such an opinion, even in the most pejorative
terms, cannot be actionable, Bucher v.
Roberts, Colo. . P, 2d
(No. C-1643 announced 29 May, 1979).
Therefore, even though the trial court's
ruling in this regard was incorrect, the
judgment which resulted from the jury's
verdict was a proper disposition of the case,
and that judgment is affirmed. Because of
our determination that the letter was not
defamatory or capable of a defamatory
A-93
1
n
meaning, and thus was not actionable, it is
not necessary to address any of the plaintiff's
assignments of error with regard to the
conduct of the trial. |
1
The Conspiracy Action
Citing Pratt v. British Medical
Association, (1919) 1 K. B. 244, 9 B. R. S. 982,
Tyler bases his damage complaint for
conspiracy on averments that defendants
collectively schemed and connived to prevent
him from exercising his common law right to
practice and carry on a lawful profession
without wrongful and illegal interference,
Tyler argues that the trial court
committed error when it e to direct a
verdict in his favor on the conspiracy claim
and by permitting the issue to go to the
jury. Tyler relies essentially upon the
same evidence that was adduced to support
A-94
his libel claim, and our review of the same
evidence reveals that there was no direct
proof of aconspiracy. At most, the evidence
supports the existence of a conspiracy only
by inference, The necessary inferences
could only be reached by the finder of fact if
the testimony of the en bee concerning
their lack of conspiratorial intent or intent
to injure Tyler were to be disbelieved. Since
there were factual issues and disputes
relative to the conspiracy, and inasmuch as
there was evidence to support alternate
resolutions of these issues, a directed
verdict would have been improper, See, e.g.,
Safeway Stores, Inc. X. Langdon, 187 Colo.
425, 532 P. 2d 337 (1975).
We have considered Tyler's numerous
other assignments of error and conclude that
they are wholly devoid of legal merit,
A-95
Judgments affirmed,
JUDGE RULAND and JUDGE STERNBERG
concur.
A-96
BRIGHTON COMMUNITY HOSPITAL
1850 EGBERT STREET, BRIGHTON,
COLORADO 80601
PHONE 659-1531 AREA CODE 303
Oct ber 23, 1974
Donald E. Tyler, M. D.
1790 Bridge Street
Brighton Colorado
Dear Dr, Tyler:
Your hearing date has been rescheduled for
Thursday, October 31, 1974, 12:00 aoon at
Brighton Community Hospital,
Sincerely,
(signed Galen M. Marks, M. D. by J. K.)
Galen M. Marks, M. D.
Chief of Medical Staff
EXHIBIT D
Accredited by the Joint Commission on
accreditation of hospitals
A-97
BRIGHTON COMMUNITY HOSPITAL
1850 EGBERT STREET, BRIGHTON,
COLORADO 80601
PHONE 659-1531 AREA CODE 303
September 26, 1974
Donald Tyler, M. D.
1790 Bridge Street
Brighton, Colorado 80601
Dear Dr, Tyler:
A request for corrective action concerning
your Emergency Room care and conduct
has been received by the Executive Committee.
In accordance with the By-Laws of the
Brighton Community Hospital Medical Staff,
the Executive Committee requests your
attendance with the e Committee at
12 o'clock noon on October 17, 1974
at the Brighton Community Hospital.
A-98
Yours truly,
(signed) Galen D. Marks
Galen Marks, M. D.,
Chairman, Executive
Committee
EXHIBIT E
Accredited by the Joint Commission of
Accreditation of Hospitals
A-99
„
BUSINESS MINUTES Date October 31, 1974
EXECUTIVE STAFF MEETING *
Minutes of the meeting of the Executive Staff
The meeting was held in the Conference Room
at the Brighton Community Hospitals at 12:00
noon, 1974, October 3lst.
ATTENDING MEETING: Dr. Galen Marks,
President
Dr. Robert Larsen, Vice President
Dr. Bill Waddell, Secretary
Mr. Orrel Daniels, Hospital Legal Counsel
John Vowell, Hospital Administrator
The meeting was called to order at
12:00 noon, The purpose of the meeting as
called by the President of the Staff was in
accordance with the Medical Staff By-Laws
provisions covering hearings, The hearing
to be conducted was that of Dr. Don Tyler.
Dr. Tyler had been notified by certified
A-100
mail of the time and place of the hearing.
1:45 P. M. Dr. Tyler had not appeared
at the meeting. The meeting adjourned.
No action taken.
(signed) John Vowell
John Vowell, Administrator
EXHIBIT F
A-101
CMS
COLORA DO MEDICAL SOCIETY
1601 East i9th Avenue
Denver, Colorado 80218-Phone (303)534-8580
Donald E. Tyler, M. D.
1790 Bridge Street
Brighton, Colorado
Dear Dr. Tyler:
As you were advised by my letter of
November I, 1976 the Risk Management
Committee of the Colorado Medical Society
requests permission to examine hospital
records of yours at Brighton Community
Ho spital over the past three years, This
request is specifically in reference to
emergency W patients.
You should be advised that failure to
cooperate with the Risk Management
Committee of the Colorado Medical Society
would require that that Committee so inform
A-102
N
. * t e
the Hartford Insurance Company, your
carrier,
The Committee expects written
permission to examine the above mentioned
records to be received by a representative of
that Committee at 3501 South Corona Street
#7, Englewood, Colorado 80110 no later than
January 31, 1977.
Very sincerely yours,
(signed) Robert 8. Brittain M. D.
ROBERT S, BRITTAIN, M.D,
MEMBER
Risk Management Committee
(signed) Wilfred Stedman, M.D,
WILFRED STEDMAN,,M,D.
Chairman
Risk Management Committee
A-103
N ae af r > oF N
Denver Regional Office
820 Grant Street THE HARTFORD
Denver, Colorado 80203
Telephone:(303)837-1515
April 26, 1977
Donald E. Tyler, M. D.
1790 East Bridge Street
Brighton, Colorado
Dear Dr. Tyler:
The underwriting department of
Hartford has been kept abreast of the on-
going efforts of the Risk Management
Committee of the Colorado Medic al Society
to inspect your emergency room records at
Brighton Community Hospital, We
understand numerous requests have been
made to inspect records whether you are
keeping adequate emergency room records,
Hartford works in close cooperation with
A-104
the Risk Management Committee and, among
other things, uses records and information
concerning medical records for premium
computation,
One of the conditions of your policy with
the Hartford, Condition lL on page 4 of the
General Policy Provisions section provides
the insured. . shall send copies of such
records to the company ... at such times
during the policy, as the company may
direct. We feel compliance with this
policy condition is a condition precedent to
any duty on Hartford's part to continue
coverage beyond your renewal date on
December II, 1977, and hereby formally
demands the opportunity to review your
emergency room records at Brighton
Community Hospital for the past three years.
I also want to advise you that Hartford's
A-105
contract with the Colorado Medical Society
provides the company may refuse to renew
a physician in the event he or she fails to
cooperate with the Risk Management
Committee. Please reconsider your position
relative to the examination of your records
as a continued refusal to provide these
records to the Hartford may well lead to a
decision not to renew your coverage come
December II, 1977.
Please call me if you have any questions.
Yours very truly,
(signed) Thomas H. Mitchell
Thomas H. Mitchell
Underwriter
Casualty Department
TM:gn
A-106
WARREN & SOMMER INCORPORATED
SUITE 500/3955 East Exposition
DENVER, COLORADO 80209
Telephone 303-744-3711
April 26, 1977
Donald E. Tyler, M. D.
1790 Bridge Street 8
Brighton, Colorado
Re: Donald E. Tyler vs Gaylor, et al
Dear Dr, Tyler:
You may recall I wrote you on behalf of
the Hartford Insurance Company on March 29,
1977, concerning problems encountered by
the Risk Management Comm. ee of the
Colorado Medical Society in its attempt to
review your emergency room records at
Brighton Community Hospital. You were then
advised Hartford would be unable to renew
your policy on December Il, 1977, your
annual renewal date. The notice of
A-107
non-renewal was based solely on your
refusal to permit the Committee to review
your emergency room records, The purpose
for that request was to determine whether
medical care rendered = you was being
adequately documented in the event you were
to be sued,
Dr. Brittain of the Risk Management
Committee has recently advised Hartford
the Committee wishes to give you the
opportunity to discuss this matter with the
Committee before it makes any final
recommendations concerning non-renewal.
I've also been advised a representative of
the Committee has written you in this
regard,
Accordingly, Hartford plans to reserve
its decision on non-renewal until you meet
with the Committee and the Committee has
A-108
made further recommendations.
Without waiver of any rights under the
policy, and more specifically, the right to
contend your refusal tc cooperate with the
Committee is proper grounds for non-
renewal, Hartford is for the time being
withdrawing the notice of non-renewal as
set forth in my letter of March 29, 1977,
I'm sure you understand the request to
examine your e is not personal and
was not and is not intended to be a
reflection on the way you practice medicine,
Similar requests have been directed to
numerous doctors in an effort to evaluate the
manner in which records are kept and to
assist and educate these physicians. I urge
you to cooperate with Hartford and the
Committee in permitting review of your
records,
A-109
Sincerely,
(signed) Bill Buckm---
William M. Buckman
Vice President
WMB/jg |
cc: Wilfred Stedman, M. D.
Herbert J. Rothenberg, M. D.
James A. Henderson, M. D.
Robert 8. Brittain, M. D.
A-110
CMS
COLORADO MEDK AL SOCIETY
1601 East 19th Avenue
Denver, Colorado 80218-Phone (303) 534-8580
April 26, 1977
PERSONAL AND CONFIDENTIAL
Donald E. Tyler, M. D.
1790 East Bridge Street
Brighton, Colorado
Dear Dr. Tyler:
I have written you on two separate
occasions, on November l, 1976, and on
January 12, 1977, requesting on behalf of the
Risk Management Committee of the Colorado
Medical Society, permission to examine your
hospital records at Brighton Community
Hospital over the past three years, That
request to examine records, outstanding
since November 1, 1976, was also verbally
communicated to you at the time of my
A-ill
deposition on January 4, 1977, and thereafter
to your former attorney, Mr. Mitchem.
Because of your failure to cooperate with
the Risk Managemnt Committee, the
Committee recommended that Hartford refuse
to renew your professional liability coverage.
Although the Committee's recommendation
is that your coverage not be renewed on the
annual renewal date, we want to give you the
chance to discuss this matter with the
Committee. We want to discuss this matter
with you personally before making any final
recommendation to Hartford concerning
non- renewal.
The Committee has now asked that
Hartford reserve any final decision whether
to renew your policy until we've had a
chance to discuss this matter with you and
make further recommendations,
A-Li2
Would you be kind enough to give me a call
and let me know whether you would be willing
to meet with the Committee to discuss this
matter?
Our next committee meeting is set for
Monday, May 9, 1977, at 8:30 P. M. at
Colorado Medical Society, 1601 East 19th
Avenue, Denver, Colorado. If you don't
contact me, please consider this letter as a
formal request that you meet with the
Committee on May 9, 1977, to discuss the
matters of your cooperation with the
Committee and the Committee's recommen -
dation concerning non-renewal of coverage.
If you fail to attend the meeting, the
Committee will make a final recommendation
against renewal of coverage on that date, in
that event you will again be notified of our
recommendation against renewal and will
have 30 days from your receipt of
A113
notification of non-renewal to appeal this
decision to the Board of Trustees of the
Colorado Medical Society.
Very sincerely yours,
(signed) Robert S. Britt--- MD
Robert S. Brittain, M.D.
Member
Risk Management Committee
RSB/mhs
A-114
DONALD E. TYLER, M. D.
UROLOGIST
1790 East Bridge Steeet
Brighton, Colorado 80601
Telephone 659-4581
September 9, 1977
Joseph H. Poynter, M. p.
Chairman, Risk Management Cotamittee
2750 Broadway
Boulder, Colorado
Dear Doctor Poynter:
I have received the vielen of you and
those you represent to examine the records of
my patients, You have stated that my
records may be deficient.
I request the following information:
1. Who reported information concerning
records of my patients to the Risk
Management Committee?
2. Who reported information concerning
A-1¹5
—
eee
records of my patients to you?
3. When was each of those reports made?
4. Where were each of those reports made?
5. What were the contents of each of such
reports?
6. What patients' records are considered to
possibly be deficient?
7. Who (names please) determined that they
may be deficient ?
8. In what respects are each of such records
considered to possibly be deficient ?
9. Have you examined any records of my
patients? If so, please identify which records
you examined with exactness, and who
supplied them to you, when and where,
10. Has the committee examined any
records of my patients? If so, please
identify exactly which records were
examined and who supplied them, and when
and where they were supplied.
A-
ll, By whose permission were each of such
records examined? oe
12. What is the purpose of your request? Of
course, you are aware that the Risk
Management Committee has already made a
recommendation that my professional
liability insurance not be renewed and this
has been acted upon. What do you intend
ome You are undoubtedly aware that
matters with which you are involving
yourself are properly before two courts of
law,
My patients expect me to not reveal
confidences. It is against my ethics to not
cause a breach of that expectation and I
respect and observe the same ethics
concerning patients of other physicians. R
is recognized, and by your letter, that those
may not be the same as your ethics or those
A-117
of the organizations which sponsored the
legislation you cited.
I hope you will cooperate and supply me
with the above information so that I might
have some idea of your interest.
Edo not know of any patients whom I have
seen as emergencies in any hospital
Emergency Room in the past two years. I
sincerely request that you reconsider your
involvement in this matter.
Yours truly,
(signed) D. E. Tyler
Donald E. Tyler, M. D., J. D., FC LM
cc:
Robert Brittain, M.D.
Herbert Rothenberg, M. D.
James Henderson, M.D,
Wilfred Stedman, M. D.
Carl McLauthlin, M. D.
A-118
IN THE DISTRICT COURT IN AND FOR THE
COUNTY OF JEFFERSON
STATE OF COLORADO
Civil Action No. 77CV0782
Division 4
DONALD E. TYLER, )
) FINDINGS
Plaintiff, )
) CONC LUSIONS
vs. )
) AND ORDERS
THE HARTFORD INSURANCE )
G ROUP, FRANCIS FRY, and)
ROBERT S. BRITTAIN, )
Defendants
This matter coming on to be heard on the
motion of the defendants to dismiss on
November 3rd, 1977, the Court having
heard arguments of counsel and reviewed the
briefs, makes the following Findings,
Conclusions and Orders concerning said
Motion to Dismiss:
The plaintiff has alleged five causes of
A-119
action in his Complaint, and the Court will
deal with each cause of action as pled by the
plaintiff,
The plaintiff has alleged claims of libel
and slander in Claims I and 2 of his Complaint,
and the Court will deal with them jointly.
In reviewing the plaintiff's complaint, the
Court concludes that the plaintiff has alleged
the essential elements necessary for
maintaining an action in libel and slander.
Defendants claim that the factual
circumstances surrounding the incident
constitutes privilege on various grounds.
One, with respect to documents pertaining
to litigation.
The law in Colorado is that publication of
a legal proceedings is qualifiedly privileged,
but not until it has gone into court and
thereby becomes public; and a qualified
A-120
p 9
privilege permits only the publication of a
truthful statement of the matter as it took
place in the court hearing. Switzer v. Anthony,
96 P. 391,
While publication concerning a legal
proceeding is qualifiedly privileged, the
matter must be pending in court, and must be
a truthful statement, otherwise the
publication is not privileged, Towles v.
Meador, 272 P. 625.
The plaintiff is alleging a non-truthful
statement made prior to the existence of the
point in time where the public aspect of the
judicial proceedings exists.
The defendants also cited Lininger v.
Knight, 226 P. 2d 809 for the proposition that
the letter itself would be absolutely
privileged since sent by a citizen to the
officials of a public entity. The plaintiff here
A-121
is alleging a republication of this letter to
individuals of private, not public interest,
A privileged statement repeated on a
non-privileged occasion is actionable,
C.J.S., Libel and Slander, Section 98.
Any qualified privilege which the
defendants assert, i. e., communication in
good faith upon a subject matter in which the
party communicating has legitimate
individual public or group interest (Ling v.
Whittemore, 343 P. 2d 1048), or inter office
memoranda (Abrahamsen v. Mountain States
Tel. & Tel. Co., 494 P. 2d 87), can be
‘lost, and for the purposes of a motion to
dismiss, must be determined inadequate to
constitute grounds for dismissal, because
plaintiff has alleged malice, the burden is
upon the plaintiff to prove malice when a
qualified privilege is found by the Court to
A-122
aa.
ett.
exist.
Questions of good faith on the part of the
defendants and the honest belief in the truth
of the statements put forth by them are all
factual matters for the trier of the facts,
Abrahamsen v, Mountain States Tel. & Tel.
Co, , 494 P. 2d 1287.
The Court concludes as to Claims |. and 2,
that the plaintiff has sufficiently pled a cause
of action and further factual determination
must be made by the trier of the facts before
the defense of privilege would lie. Therefore
the motion to dismiss Claims | and 2 should be
denied,
The Third Claim for Relief of the
plaintiff attempts to allege numerous causes
of action arising out of an anticipatory
breach of contract, conspiracy to interfere
and obstruct the plaintiff in the practice of
A-123
medicine, and conspiracy to breach the
contract,
The defendants maintain that the plaintiff
is alleging a breach of an existing insurance
contract which does not expire until
December II, 1977, and the plaintiff contends,
however, that he is alleging an anticipatory
breach of his expectancy of renewal of the
insurance contract, and therefore the basis
of his claim for relief,
The plaintiff is further stating as a basis
for his third claim for relief the provisions
of 10-4-109, CRS 1973, as amended, which
provides for renewal unless certain
conditions are met,
The Court in reviewing this section of the
statute could use the plaintiff's argument to
his disadvantage since the provision is
actually for non-renewal,
A-124
,
1
8
The instant situation may be analogized to
the case of Jones v. Hopper, 410 F. 2d 1323,
where the Court dismissed an action based
on expectancy of renewal of employment,
because a statute pertaining to employment
of state teachers specifically denied an
expectancy of renewal, and the statute
necessarily become a part of any contract
entered into by the parties.
In the present case, the Hartford gave
lawful notice of termination as required by
10-4-109, CRS 1973, providing that non-
renewal of a medical malpractice insurance
is conditioned upon the absence of the
happening of certain events,
"The provision specifically denies an
expectancy to continued employment;
therefore, absent an expectancy, there
should be no interest, One has no
A-125
i? 9
ey *
*
K 3 3 7 1
constitutional right to a remedy against the
lawful conduct of another. Jones v. Hopper.
The Court further concludes that the
statute does not provide an expectancy in the
plaintiff and therefore any action on his part
at this time would be premature, in that
there has not been any breach of the existing
contract, nor is he entitled to any expectancy
of renewal of that contract.
His other causes of action, coupled in his
third cause of iction, concerning conspiracy
to breach the contract, fail to allege a
cause of action upon which relief may be
granted, for the reasons heretofore
mentioned,
The Court concludes that the motion to
dismiss the third cause of action has merit
and should be granted.
The plaintiff has alleged in his fourth
A-126 |
cause of action a violation of his civil rights
under the provisions of 42 USC, Section 1983.
Under the provisions of Section 1983, in
order to maintain a cause of action,
allegations necessary to state a claim of
deprivation of civil rights under color of
state law are not to be held insufficient unless
it appears beyond doubt that the plaintiff can
prove no set of facts in support of his claim
which would entitle him to relief, Jones v.
Hopper, 410 F. 2d 1323,
The basic requirements of a civil rights
complaint are: (I) the conduct complained of
was engaged in under color of state law, and
(2) that such conduct subjected the plaintiff
to a deprivation of rights, privileges, or
immunities secured by the Federal
Constitution and laws. Jones », Hopper, supra.
The plaintiff in the instant case alleges
A-127
2:
1
1
that 10-4-109, Colorado Revised Statutes,
1973, as amended, brings the actions of
Hartford Insuran ce within the scope of
42 USC 1983.
The Court concludes that merely acting
under a state license is not state action
within the meaning of this section, Ouzts v,.
Maryland National Ins. Co., C. A. Nev. 1972,
470 F.2d 790, unless the state is otherwise
connected with the challenged conduct.
Holmes v. Elks Club, Inc., D.C. Fla 1975,
389 F.Supp. 854.
Neither does the fact that a private
corporation enjoys an economic monopoly
which is protected and regulated by the state
necessarily bring its every act withia the
purview of this section. Martin v. Pacific
Northwest Bell Tel. Co. C. A. Or. 1971.
441 F. 2d 1116.
A-128 >
—_ 7
1
3
State regulation of a business does not
transform a private party's activities into state
action for purposes of this section. Scott v.
Eversoll Mortuary, C. A. Cal. 1975, 522 F. 2d
1110; Johnson v. Heinemann Candy Co,, Inc.
D. C. Wis. 1975, 402 F.Supp. 714.
The Court further concludes that the mere
fact that a state has legislated in the area of
the conduct complained of does not in and of
itself constitute sufficient participation to be
appropriately denominated ''state action.
Barrett v. United Hospital, 376 F. Supp. 791.
Shirley v. State National Bank of Connecticut,
493 F.2d 739.
The situation before the Court is
analagous to that in the Shirley v. State
National Bank of Connecticut case in that the
only involvement through the statute cited is
prohibitive of a right to renew or cancel
A-129
existing insurance on 3 of the contract.
The statute provides only that notice and
cause (if demanded) be given.
Hartford is not using a power conferred
by the state to gare or deprive the plaintiff
in this case of his rights guaranteed by the
Federal Constitution. Thus, the requisite
"color of law“ is absent from the plaintiff's
claim and in the Court's opinion fatal to
maintaining any cause of action under this
section,
The Court therefore concludes that the
defendants' motion to dismiss the fourth cause
of action has merit and should be granted,
The plaintiff has alleged in his Fifth
Cause of Action outrageous conduct on
behalf of the defendants to his damage, and
in reviewing the Fifth Cause of Action, the
plaintiff has sufficiently pled the elements
A-130
i
which if found to exist would substantiate the
cause of action known as outrageous conduct,
and therefore the motion to dismiss at this
time as to the Fifth Cause of Action would be
premature, and therefore should be denied.
The last question raised was one of
punitive damages, and under the provisions of
the state the plaintiff has alleged malice,
wanton and reckless disregard of the rights
and feelings of the plaintiff, and would be if
the plaintiff sustained his burden of proof
actionable as provided by the statute,
Therefore the Court concludes that the
plaintiff has sufficiently pled punitive
damages as provided by the statute to
overcome at this time a motion to dismiss,
IT IS THEREFORE ORDERED, that the
Motion to Dismiss as to the First, Second and
Fifth Claims for Relief and allegations
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dealing with punitive damages is hereby denied,
As to the Third and Fourth Claims for
Relief, the Motion to Dismiss is hereby
granted,
The Court orders the defendants to file
responsive pleadings as to the remaining
claims for relief of the Complaint within
thirty(30) days from the receipt of this order,
Done in open Court this l6th day of
December, 1977,
BY THE COURT:
(signed) Anthony F. Vollack
District Judge
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IN THE DISTRICT COURT
IN AND FOR THE COUNTY OF JEFFERSON
STATE OF COLORADO
Civil Action No. 77CV0782, Div, 4
DONALD E, TYLER, )
)
Plaintiff, ) FINDINGS
)
VS. ) CONC LUSIONS
THE HARTFORD e
a ) AND ORDERS
GROUP, FRANCIS FRY and)
ROBERT S, BRITTAIN, ;
Defendants
THIS MATTER, Defendants’ Motion
for Summary Judgment, having come on to
be heard on December 12, 1980, the Court,
having heard arguments of counsel, read the
briefs submitted, and being fully advised in
the premise, enters the following Findings,
Conclusions and Orders, * .
The undisputed facts are that Plaintiff,
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on
Dr. Donald Tyler, filed the instant suit in
April 1977 asserting claims of libel, slander,
civil conspiracy, a violation of civil rights
pursuant to 42 U.S.C. § 1983, and outrageous
conduct against the Defendants. The claims
of libel, slander, and outrageous conduct
(Counts 1, 2, and 5 respectively) are based
on the alleged publication and republication
by the Defendants of certain statements
contained in a letter written by Donald Gaylor
to Dr, Galen Marks, Chief of Staff of the
Brighton Community Hospital (hereinafter
the Gaylor letter, Exhibit A of the Complaint).
The Gaylor letter concerns an incident which
occurred at the Brighton Community
Hospital between Plaintiff and Ms. Margaret
Schroer, Donald Gaylor's aunt. Plaintiff
asserts that Defendant Fry, an employee of
Defendant Hartford Insurance Group,
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republished the letter to Defendant Brittain,
who in turn republished the contents of the
letter rally to other persons. The Court
granted Defendants' Motions to Dismiss the
Counts of conspiracy and civil rights
violations on December 16, 1977.
Plaintiff had previously filed suit in 1975
in Boulder County (the case was subsequently
transferred to Adams County) against other
Defendants. The Adams County suit, Tyler
V. Gaylor, was also base on the Gaylor letter;
however, the letter which was the subject
of that suit was from Donald Gaylor to Dale
Alter, Chairman of the Board of Directors
of the Brighton Community Hospital. In all
other respects the letters are identical,
except that the letter to Dr, Marks is signed
by Mr. Gaylor and the letter to Mr, Alter is
not signed. In Tyler v. Gaylor the Court
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ruled as a matter of law that the Gaylor letter
was libelous per se, The case was submitted
to a jury, which returned a verdict for the
Defendants. On appeal, the Court of Appeals
reversed the trial judge's determination,
“holding that the letter was not an actionable
form of libel (Decided June 4, 1979, No.
77— 894). The Court of Appeals decision
was not chosen for official publication, The
Supreme Court of Colorado denied Plaintiff's
petition for certiorari on October 9, 1979.
Defendants contend that there is an
absence of any genuine issues of material
fact which would require submission of the
case to atrier of fact. Defendants assert
that Plaintiff is precluded by the doctrine of
collateral estoppel from litigating his
claims of libel and slander, since these
claims are based on the Gaylor letter, which
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was determined to be non-actionable,
Defendants also contend that Plaintiff's claim
of outrageous conduct can he determined as
a matter of law because ''mere words" are
not actionable,
Plaintiff denies that there are no material
issues of fact to be r Plaintiff
asserts that the Court of Appeals opinion
may not be used as a precedent or to
collaterally estop him from litigating his
charges against the Defendants, Plaintiff
also contends that the Gaylor letter was quo ed
incorrectly in the Court of Appeals opinion,
and collateral estoppel should not be applied
by this Court because the letter which is the
subject of this action is different from the
letter determined to be non-actionable by
the Court of Appeals.
At the outset, the Court disagrees with
A-137
Plaintiff's assertion that the Court of Appeals
incorrectly quoted the Gaylor letter in its
opinion, After a careful examination of the
letter attached as an exhibit to the Adams
County complaint and the quote in the Court
of Appeals opinion, the Court conclud:s that
the quote is complete and correct, The
Court also notes that the letter which was the
subject of the Adams County case is identical
to the letter at issue here, with the
exception of the aforementioned different
addressees and missing signature, Plaintiff
himself, in his Response to Defendants’
Motion to Dismiss for Lack of Prosecution,"
filed June 25, 1979, stated:
1. The letter subject of this action
designated as EXHIBIT A of the complaint
has the same content as the letter subject
of Civil Action 26884, D istrict Court of
Adams County, and action for libel.
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5. Final determination of aforementioned
civil action and appeal is essential and
is expected to be determinative of certain
issues in this instant claim, and
particularly to the cliam of libel.
(Plaintiff's Response, p. 1).
The Doctrine of collateral estoppel holds
that the final decision of a court on an issue
actually litigated and determined is
conclusive of that issue in any subsequent
suit. Pomeroy v. Waitkus, 183 Colo, 344,
517 P. 2d 396, 399 (1973). “The rule
limit/s/ litigation by preventing a party who
has had one fair trial on an issue from again
drawing it into coat roversy. Bernhard v.
Bank of America Nat. Trust & Sav. Ass'n.,
19 Cal. 2d 807, 122 P. 2d 892, 894 (1942)
(citations omitted). In their motion,
Defendants are attempting to invoke
defensive collateral estoppel--they are
seeking to prevent Plaintiff from
A-139
‘i 3
. N a N . * 63
KR. * S e ie.
relitigation an issue which he previously
litigated in another action, with another
party. Because the Plaintiff, in the earlier
action, had both the ability to choose the
forum and the incentive to pursue the action
vigorously (including joining potential
defendants in the first action), the use of
defensive collateral estoppel generally does
not create any unfairness or inequity.
Parklane Hosiery Company, Inc. v. Shore,
439 U.S. 322, 329 (1979).
In Pomeroy v. Waitkus, supra, the
Colorado Supreme Court enumerated four
tests to be used to determine if collateral
estoppel may be applied:
First, was the issue decided in the prior
adjudication identical with the on presented
in the action in question? Second, was
there a final judgment on the merits?
Third, was the party against whom the
plea is asserted a party or in privity with
a party to the prior adjudication? And,
fourth, did the party against whom the
plea is asserted have a full and fair
A-140
cy sme *
n. * nn 1 wit «+ a ot ‘oie. Ras 1 ~ 3 888 >
;
A-l41 ,
. i
D ee ee ee c . * ae
opportunity to litigate the issue in the
prior adjudication?
517 P. 2d at 399 (emphasis added).
In the instant case, all four tests given in
Pomeroy have been met. The decisive issue
in Tyler v, Gaylor was whether the Gaylor
letter was defamatory, Plaintiff also bases
his claims of libel and slander against these
Defendants on the Gaylor letter. Plaintiff does
not allege that Defendants made any
defamatory statements, written or oral,
other than those contained in the Gaylor
letter, Therefore, the issue decided in the
prior case, the defamatory nature of the
letter, 7 identical with the issue presented
in the instant case.
The second test is also met. A final
determination on the merits exists in the
Tyler v Gaylor action. The Court of
Appeals expressly held that the Gaylor
¥ B _ eT
ae
2 a
2 wa 1 —.
— *.
letter was not defamatory, and the Plaintiff's
Petition for Certiorari was denied by the
Colorado Supreme Court.
Defendants meet the third test because
they are asserting the doctrine of collateral
estoppel against Plaintiff, who was a party in
the prior action. Murphy v. Northern
Colorado Grain Co,, Colo. App. 21, 488 P. 2d
163 (1971).
Defendants also meet the fourth test.
Plaintiff had a full and fair opportunity to
litigate the issue of the nature of the Gaylor
letter in the prior adjudication. Plaintiff
was permitted to present evidence to the jury
on the defamation issue, and appealed the
jury verdict to the Court of Appeals.
Plaintiff obviously had both the incentive
and opportunity to fully litigate the question,
and did so,
A-142
1
Because all four teste are met and
collateral estoppel applies to preclude
Plaintiff from asserting that the Gaylor
letter is defamatory and actionable, Plaintiff's
first and second claims must fail. Defendants
could not be guilty of libeling or slandering
Plaintiff by publishing non-defamatory
statements.
The tort of outrageous conduct,
Plaintiff's fifth claim against the
Defendants, is defined as extreme and
outrageous conduct intentionally or
recklessly /done which/ causes severe
emotional distress to another
Liability exists only when the conduct
complained of is both extreme and
outrageous.
Liability has been found only where the
eas conduct has been so outrage ous in
* a character, and so extreme in degree, as
A-143
to go beyond all possible bounds of
decency, and to be regarded as atrocious,
and utterly intolerable in a civilized
community. Generally, the case is one
in which the recitation of the facts to an
average member of the community would
arouse his resentment against the actor,
and lead him to exclaim, "outrageous! "
Rugg v. McCarty, 173 Colo. 170, 476 P. 2d
753, 756 (1970),
Colorado has adopted Section 46, Comment
h of the Restatement of Torts, which states:
It is for the court to determine, in the
first instance, whether the defendant's
conduct may reasonably be regarded as so
extreme and outrageous as to permit
recovery, or whether it is necessarily so.
Where reasonable men differ, it is for the
jury, subject to the control of the court,
to determine whether, in the particular
case, the conduct has been sufficiently
extreme and outrageous to result in
liability.
Blackwell v. Del Bosco, 35 Colo. App. 399,
536 P. 2d 838, 841 (1975), aff'd 191 Colo. 344,
558 P. 2d 563 (1976).
It is therefore a reprequisite to
A-144
submission of a claim of outrageous conduct
to the finder of fact that the Court determine
as a question of law whether reasonable
people could differ as to the outrageous
nature of the actions complained of,
Mere words, however profane or
insulting, will not establish a cause of action
for outrageous conduct, See Meiter v,
Cavanaugh, 40 Colo. App. 454, 580 P. 2d 399
(1978); Holtz v. United Airlines, Inc.,
No. 76-A-513 (D. Colo. June 6, 1977). In the
instant action, the foundation for the claim
of outrageous conduct is the allegations
contained in Counts I and 2 concerning
Defendants' communication of the contents
of the Gaylor letter, The words allegedly
written and/or spoken are not even profane
or obviously insulting, and have been
determined to be non-defamatory. In light
of the foregoing, the Court is of the opinion
A-145
that a reasonable person could not find that
the Defendants' statements constituted
outrageous conduct,
Rule 56(b) of the Colorado Rules of
Civil Procedure provides:
A party against whom a claim, counter-
claim or crossclaim is asserted or
declaratory judgment is sought may, at
any time, move with or without
supporting affidavits for a summary
judgment in his favor as to all or any
part thereof,
Summary judgment is a drastic remedy,
but where there are no genuine issues of
legally dispositive facts, it is the duty of the
court to enter a summary judgment. Fort
Collins Houses v. Fort Collins, 30 Colo. App.
445, 496 P. 2d 1074, 1077 (1972).
For the above stated reasosns, the Court
concludes that there is no ee issue of
any material fact, The Court hereby enters
summary judgment in favor of the Defendants
A-146
and against the Plaintiff in this matter,
SO ORDERED this 8th day of January, !951.
BY THE COURT:
(signed) Anthony F. Vollack
DISTRICT JUDGE
A-147
IN THE DISTRICT COURT IN AND FOR THE
COUNTY OF JEFFERSON
STATE OF COLORADO
Civil Action No, 77CV0782, Div. 4
DONALD E. TYLER,
Plaintiff,
vs. ORDER
THE HARTFORD INSURANCE
GROUP, FRANCIS FRY,
ROBERT S, BRITTAIN,
— = eee ee ee ee ee ee ee ee ee”
Defendants.
This matter coming on to be heard on the
2lst day of February, 1978, on the motion of
the plaintiff to compel the defendants to turn
over for inspection files pertaining to the
defense of three suits instituted by the
plaintiff against Dr, Larsen, Mr. Gaylor
and Dr. Marks, in which the Defendant
Hartford Insurance Company afforded
A-148
defenses in the said suits filed in the Adams
County District Court, The files in question
based upon statements of counsel for the
defendant were prepared in anticipation of
trial, and that said materials contained
mental impressions, conclusions and
opinions and legal theories of the attorneys
and other agents of Hartford Insurance
Company.
The suits in Adams County were
predicated on the same letter from Mr.
Gaylor which the plaintiff is contending in the
present lawsuit to have been published by the
defendants in this action to his damage.
The defendants contend that the materials
contained in said files are privileged and not
discoverable by the plaintiff.
The defendants contend further that a
similar request made by the plaintiff during
A-149
discovery procedures in Adams County and
the trial judge in that case denied the
plaintiff's request to review the files on the
grounds that they were privileged under Rule
26 (b) (3), Colorado Rules of Civil Procedure.
The Court concludes based upon
statements of counsel that the materials in
the subject files were prepared or compiled
in anticipation of litigation and that said
materials, containing the impressions,
conclusions and opinions of the agents of the
Defendant Hartford Insurance Company and
legal theories of their attorneys concerning
the said litigation would not be discoverable
under Rule 26 (b) (3).
The Court therefore denies the plaintiff's
motion to compel the defendants to produce
the three files concerning the Adams County
litigation for inspection by the plaintiff in
A-150
this case,
Done in open Court, this 28th day of
February, 1978.
BY THE COURT:
(signed) Anthony F. Vollack
District Judge
A-151
5
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.