2.  The Board’s decision against me is one of the reasons I have filed a Chapter 13 Bankruptcy.  I filed this Bankruptcy on February 22, 2000, case number 00-30228 since neither I nor my professional corporation have the financial ability to pay Dr.Galinski $2,175 on or before March 1, 2000 as the Board ordered me to do.  Likewise neither I nor my professional corporation have the financial ability to pay the Board’s attorney fees and costs of approximately $30,000 that the Board has ordered me to do by its February 2, 2000 Order of Discipline (i.e., $500 per month for approximately two years with a balloon payment on the balance at that time).

3.  The Board’s decision to severely restrict my practice plus their requirement for retraining  me imposes upon me even more irreparable injury.  Restricting my surgical practice limits a very significant portion of my income and this aspect of the Board’s decision in and of itself is causing me serious financial concern.  I have had several patients that were scheduled for surgery during the month of February and all of them have told me that they have decided to wait for their surgery until I am able to have my surgical privileges restored.  Adding to my financial hardship, is the Board’s additional requirement that I must travel to Tucker, GA on three separate occasions with each time requiring me to be gone from my practice for a full week’s time to attend three separate mini-residency courses.  This means that in addition to having to shut-down my office for three full weeks (and as a sole practitioner this could have a very deleterious effect upon me) plus, I must also pay for tuition, meals, lodging and air fair to and from Tucker, GA each time.  Further I am also  required to take two additional courses at the Orthopedic Learning Center.  I estimate that my out of pocket costs to take these courses will be approximately $6,000.  The Board has stated that it will reinstate full operative privileges to me only after completion of the three one week mini-residency courses in Georgia and one of the courses at the Orthopedic Learning Center.  At the Board meeting on January 27, 2000, when the Board decided its discipline requirements against me, the Board stated that I would be able to complete the three one week mini-residency courses and the Orthopedic Learning Center courses within three months so that the restriction on my surgical privileges would not create any serious financial problems for me.  This is an untrue statement by the Board.  Since that January 27, 2000 meeting, I have checked into the three mini-residency courses in Georgia and it will take me at least nine months to complete them.  I do not have the money at the present time to attend even the first mini-residency course.  In addition, I see no way in the foreseeable future to get the money because of the Board’s severe restriction on my surgical privileges.  As a result of the Board’s limiting my surgical privileges, St. Alexius Medical Center and Med-Center One have now limited my surgical privileges at their hospitals.  The effect of the Board’s discipline on me is seriously impacting my ability to make a living.  Without being allowed to do even the most common procedures that most podiatrists perform (e.g., bunion procedures), it makes it extremely difficult to be able to keep my office open indefinitely.  My performance regarding bunion procedures was not a procedure that was any part of the basis for any of the complaints that the Board is disciplining me for and yet, the Board is restricting me from doing bunion procedures as well as other common procedures that could at least provide me with additional income to continue my practice of Podiatry.  Unless I am able to get the Board’s discipline against me stayed until such time as the Court is able to render a decision on the merits of my appeal against the Board, the Board’s order is going to continue to cause me serious and irreparable harm.   

4.  My wife and I and our children have had very little to live on the past few years because of the never ending fight with the Board and also with its President, Dr. Aaron Olson.  Between the two disputes, I have had to pay out substantial amounts for attorney fees in defense of these charges.  Additionally, I have had to devote much time away from my practice; time sorely needed to establish my own practice and to build a new business as a sole practitioner here in Bismarck.  The toll of all of this on both my wife and I has been devastating to us and our families.  There is a limit as to just how much my wife and I can endure (or that anyone can endure for that matter), both emotionally and financially.  I feel that the Board’s decision is wrong and its decision is based upon improper influence and improper consideration by the Board, and upon the Board’s desire to put me out of business and to ruin my career.  Every time that I see a patient now causes me to worry and causes me to start to doubt myself and my ability to perform.  The expert in the field of Podiatry that I hired to assist with the Board’s complaint against me stated that based upon the total record my performance as a podiatrist fell within the acceptable standard of care; and furthermore, such expert even provided to the Board evidence supporting my professional decisions with authoritative literature from the Podiatric profession.  Further the Board’s own expert witness has published authoritative literature himself that actually supports the surgery that I performed on some of the five patients who the Board was reviewing.  Importantly, the surgical training of the Board members is as follows: Dr. Robert Deckert has no surgical residency training in foot and ankle surgery, Dr. Lee Hofsommer has one year of surgical residency training in foot and ankle surgery, Dr. Mike Stone has one year of surgical residency training in foot and ankle surgery and Dr. Doug Moen has no surgical residency training in foot and ankle surgery; while I have four years of surgical residency training in foot and ankle surgery. Dr. Hart, one of the orthopedic surgeons who filed complaints against me, has only six months of fellowship training in foot and ankle surgery.  Without exception, my qualifications and experience in surgery for the foot and ankle is far superior to at least three of the four reviewing Board members.  Yet, these same Board members somehow arrived at a decision that my surgery was performed improperly.  Most importantly, this adverse decision against me was made by this Board without so much as a single reference as to how the standard of care, or how even the minimum standard of care, was defined and/or determined.  No definition of any kind was ever provided by the Board as to just what the standard of care is or should be.  Yet, this is perhaps the most critical element needed in order to determine whether my (or anyone’s) surgical abilities fall above, below or somewhere in between the minimum acceptable standard of care.  Defining and/or establishing just what the  standard of care is for the operations that I performed has never been provided by the Board.  The Board’s decision that my conduct was below the standard of care is arbitrary and capricious.  Further, and very significantly, the Board never once referenced either of the two expert witnesses’ reports as to just what is the accepted standard of care or what is the accepted minimum standard of care involved for the procedures that I performed; experts who both reviewed my surgical procedures.  A standard of care is that level of care determined by those experts who have actually performed such procedures in order that they can set forth what the accepted standard of care really is.  Rather here the four reviewing Board members (three of which have never even performed such procedures) did not even attempt to determine from an expert just what the standard of care really was and thus they had no basis upon which to evaluate my surgical procedures.  Of critical importance here, is the fact that St. Alexius hospital conducted an independent review of ninety surgical cases that I performed at St. Alexius Medical Center; and notably, St. Alexius had no concerns about any of the procedures I performed or about any of the records that St. Alexius reviewed.  Clearly, the Bone & Joint Center doctors (and the President of the Board, Dr. Aaron Olson) are in competition with me for podiatric patients in the Bismarck area; therefore,  it is understandable that they would try to create problems for me.  Accordingly, and most likely not coincidentally, it was the referrals by the Bone & Joint Center to the Board that constituted the majority of the five complaints against me; only one patient actually ever filed a complaint.  It is my fervent hope that this Court will see what is happening here.  Likewise it is my fervent hope that this Court will grant a stay of the Board’s disciplinary action against me until such time as the Court has had an opportunity to study the Board’s decision and until such time as the Court has been allowed the time necessary to render its decision. 

5.  The Board interjecting a statement in its decision that there is a concern for the public safety regarding my surgical skills lacks any credibility whatsoever and such a statement was inserted in the Board’s decision for the sole purpose of trying to prevent this Court from granting a stay.  The five complaints against me that the Board reviewed date back to June 12, 1995, almost five years ago.  Three of those five patients I treated back in 1993 and 1994.  The doctors from the Bone & Joint Center (who are the ones who submitted the complaints to the Board) also saw those patients back in 1994.  Therefore, if my surgery skills were truly of any genuine concern to public safety then why did the Board allow me to continue to go right on practicing for nearly five years from June 12, 1995 to February 2, 2000?  The surgery that I perform is performed on only the foot and ankle and while there is and always should be vital concerns for the patients health and safety, nothing contained in any of the medical records or in any of the complaints against me indicates and/or even suggests that my surgery is in any way a concern for public safety. 

By this affidavit, I respectfully  request that the Court recognize what the Board is attempting to do here in order to prevent me from being granted a stay.  Based upon the evidence in my case and on the facts and arguments in the record and those presented to the Court, I respectfully request that the Court grant a stay of this Board’s actions against me.

Dated this 7^th day of March 2000.

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Brian Gale

Subscribed and sworn to before me this 7^th day of March 2000.

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Notary Public

(S E A L ) Burleigh County, North Dakota

My Commission Expires: October 11, 2002