On July 20, 1999, Dr. Galinski issued his opinion (Tab 7) concluding that in all five cases that Dr. Gale failed to properly treat and/or care for the patient. In his written opinion,  Dr. Galinski discussed in detail that Dr. Gale’s medical record keeping in all five cases was unacceptable.  At a Board meeting on August 11, 1999 in Jamestown, the Board and Dr. Gale entered into a Stipulated Modification to Settlement Agreement (Tab 8) because Dr. Galinski’s opinion discussed in detail Dr. Gale’s medical record keeping in all five cases and the medical record keeping was not even an issue in the First Amended Complaint; thus it was agreed by the parties to not accept Dr. Galinski’s opinion.  At the August 11, 1999 meeting in Jamestown, Dr. Gale provided information to the Board  that his medical records had been audited by Blue Cross and Blue Shield twice with the latest audit being done in June 1997 and that both times the Blue Cross and Blue Shield medical record audits found Dr. Gale’s medical records adequate.  Dr. Gale also provided information to the Board at the August 11, 1999 meeting in Jamestown that St. Alexius Medical Center had conducted an independent review by hiring Dr. Steven Kilwein to review 90 charts of Dr. Gale concerning operations that Dr. Gale had performed at St. A’s.  This independent review conducted by St. Alexius determined that there were no concerns with any of the 90 surgeries Dr. Gale had performed at St. A’s.  The parties stipulated that four members of the Board, Dr. Hofsommer, Dr. Stone, Dr. Deckert and Dr. Moen, would now act as independent reviewers in place of Dr. Galinski.  Dr. Gale was given the choice of having Dr. Galinski’s decision or allowing the Board members to review the records and briefs.  There was no other option given Dr. Gale.  The President of the Board, Dr. Aaron Olson, was not permitted to be an independent reviewer due to the on-going hostility and animosity between Dr. Olson and Dr. Gale.  However, Dr. Olson was present and communicated with other Board members at this August 11, 1999 Board meeting.  This August 11, 1999 stipulation between the parties specifically defined the role of the new reviewers stating that they : “ . . . shall review all those briefs and documents, including x-rays, which were provided to and reviewed by Adolph W. Galinski, following which the reviewers may exercise the option of either making further oral inquiry of Dr. Brian Gale or making factual findings regarding whether Gale failed to properly treat and care for patients.  The new independent reviewers’ factual findings will be binding on both the Board and Gale, and not appealable.”

On January 12, 2000, the Board had a meeting where all of the four Board members were on a telephone conference call with the Board’s attorney, Mr. Thune, and where Dr. Gale and the undersigned were present.  The Board never referred to or discussed the first amended complaint at this Board meeting.  The purpose of this meeting was for the four Board members to arrive at their findings of fact.  The Board made no provision to record this meeting, however, Dr. Gale had a tape recorder with him and Dr. Gale recorded the entire Board meeting.  The Board would not allow either Dr. Gale or the undersigned to speak at this meeting.  However,  the Board’s attorney, Mr. Thune, allowed Dr. Gale to provide him with a prepared written presentation which Mr. Thune then mailed to the four Board members after the Board meeting.  After the Board meeting on January 12, 2000, Mr. Thune prepared Recommended Findings, Conclusions and Order.  Mr. Thune mailed to the Board these recommended findings along with, Dr. Gale’s statement and medical records which were critical for the Board to review again in light of some of the statements that the Board had made at the January 12, 2000 meeting.  Mr. Thune also allowed Dr. Gale to present to the Board a written summary of the errors that the Board had made at the January 12, 2000 Board meeting, which summary also referenced the medical records that the Board either did not consider or simply ignored.

On January 27, 2000, the four Board members had another meeting whereby they considered Mr. Thune’s Recommended Findings, Conclusions and Order and they also stated that they had considered Dr. Gale’s written summary of the errors the Board had made at the January 12, 2000 Board Meeting.  The Board dropped-out findings of fact paragraphs 4 and 6 of the Recommended Findings, Conclusions and Order prepared by Mr. Thune before the January 27, 2000 Board meeting.  On February 2, 2000, the Board served upon the undersigned  Findings, Conclusions and Order Imposing Discipline (Tab 1). 

Legal Basis for Stay

Section 28-32-20, N.D.C.C. provides for a stay of the proceedings on appeal as follows:

An appeal from an order . . . of an administrative agency shall not stay the enforcement of the order . . . unless the court to which the appeal is taken, upon application and after a hearing or the submission of briefs, shall order a stay.

2 Am.Jur.2d, “Administrative Law”, § 600, p. 585, states the general rule in administrative law as follows

....it is reasonable that an appellate court should be able to prevent irreparable injury to the parties or to the public resulting from premature enforcement of a determination which may later be found to have been wrong.

2 Am.Jur.2d, “Administrative Law”, § 605, page. 590, provides that four conditions are to be considered, although not necessarily a prerequisite, in determining whether a motion for stay should be granted.  These four conditions are as follows:

1. If it is likely that the petitioner will prevail on the merits of the appeal;

2. If there will be irreparable injury to the petitioner unless a stay is granted;

3. If the granting of a stay will not cause substantial harm to other interested persons; and

4. If the granting of a stay will not harm the public interest.

 

Section 28-32-20, N.D.C.C. does not provide any criteria for the granting of a stay of an administrative order.  The four conditions for a stay set-out in the above in Am.Jur.2d parallels the four requirements that the court applied in a stay issued pursuant to Rule 62, N.D.R.Civ.P. as set-out in Cass City, Elect Co-op., Inc. v. Wold Properties, 253 N.W.2d 323, 324-325 (N.D. 1977) where in the court set forth that a showing to justify a stay would generally require:

1. A strong showing that the appellant is likely to succeed on appeal;
2. That unless granted, the appellant will suffer irreparable injury;
3. That no substantial harm will come to any party by reason of the stay;
   and
4. That no substantial harm will come to the public interest.

Dr. Gale believes that he is able to comply with all four of these requirements in order for the Court to grant him a stay of the discipline order issued by the Board. 

LIKELY TO SUCCEED ON APPEAL

Dr. Gale’s specification of error on appeal includes appealing the Board’s findings of fact since the Board breached the agreement with Dr. Gale to “ . . . review all those briefs and documents, including x-rays, which were provided to and reviewed by Adolph W. Galinski . . .”.  Instead, the reviewing Board members (a) based their findings of fact and conclusions of law on matters not in the record, (b) ignored matters that were in the record which the Board mistakenly stated were not in the record, (c) failed to consider all of the briefs, documents, facts and arguments made by Dr. Gale and failed to consider the opinion of Dr. Gale’s expert witness ( Dr. Expert 1), (d) considered matters that were outside the scope of the First Amended Complaint, (e) failed to set forth what the standard of practice was and how such standard of practice was to be determined, (f) imposed discipline that has made it financially impossible for Dr. Gale to pay in order to keep his license to practice Podiatry and to earn a living in his chosen field (g) stated at the Board hearing on January 27, 2000 that Dr. Gale would be able to complete all of the retraining requirements within three months when in fact it will take more than nine months to complete, and such retraining is not financially achievable by Dr. Gale because of his limited financial condition.

Based on Dr. Gale’s belief that the Board breached the Stipulated Modification to Settlement Agreement dated August 12, 1999, the  following analyses of the findings of fact issued by the Board on February 2, 2000 indicates that Dr. Gale is likely to succeed on his appeal of the Board’s Findings, Conclusions and Order Imposing Discipline.  The following analyses will deal with all five of the complaints that the Board considered and will set forth for the Court why it is that Dr. Gale will likely succeed on appeal.

  STANDARD OF CARE

Prior to any analyses of the five complaints it is important at the outset to point out for the Court a major deficiency in the Board’s findings of fact, conclusions and order.  The standard of care as relates to Dr. Gale’s treatment of all five patients is a threshold issue in each case.  Section 43-05-16(1)(k), N.D.C.C. states, “Engaging in unprofessional conduct that includes any departure from or the failure to conform to the minimal standards of acceptable and prevailing podiatric medical practice.”  (emphasis added)  This statute requires the Board to set forth what is the “minimal standards of acceptable and prevailing podiatric medical practice.”  A minimal standard is something that is below the accepted standard of care.  The Board’s findings of fact and conclusions fail to even state what the standard of care is much less, what the minimal standard of care is for each of the five complaints.  Establishing the standard of care and the minimum standard of care in each of the five complaints is a statutory requirement.  The four Board members who were sitting as independent reviewers in the case at bar lack the required background in surgery to establish what the standard of care was for each of the five surgeries/complaints much less, to determine what the minimum standard of care is.  As set forth in Dr. Gale’s attached affidavit (Tab 36), Dr. Robert Deckert has no surgical residency training in foot and ankle surgery, Dr. Lee Hofsommer had 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 the appellant, Dr. Gale, has four years of surgical residency training in foot and ankle surgery.  How is it possible for any of the four Board members to determine and to make a qualified judgment as to the standard of conduct or the minimum standard of conduct necessary in each of the five surgeries/complaints as relates to Dr. Gale’s performance when, in fact, Dr. Gale’s qualifications are so much higher than any of the four Board members?  Not one of the four Board members is qualified to make that determination i.e., to determine the standard of care or the minimum standard of care involved in each of the five surgeries that Dr. Gale performed.  Therefore, the Board by necessity would have had to resort to and rely upon the two expert witnesses that were employed by both the Board and by Dr. Gale in order to make such a determination.  The Board hired an expert witness, Dr. Expert 2, and Dr. Gale hired an expert witness, Dr. Expert 1.  Dr. Expert 2 discusses the standard of care in his opinion and  Dr. Expert 2’s opinion is contained as part of the Board’s brief filed (May 10, 1999) with the independent reviewer.  Dr. Expert 1  discusses at length the standard of care in his opinion.  Additionally, Dr. Expert 1 had the opportunity to review Dr. Expert 2’s opinion and to respond to Dr. Expert 2’s opinion that Dr. Gale’s surgeries were below the standard of care.  In doing so, Dr. Expert 1 also referred to professional literature in the field of podiatry to discount Dr. Expert 2’s statements about the standard of care and to point-out for the Board where Dr. Expert 2 had the facts confused.  Further Dr. Expert 1 even referenced in his expert report a textbook that was actually authored by Dr. Expert 2 which refutes Dr. Expert 2’s own conclusion that Dr. Gale’s conduct was below the accepted standard of care.  Dr. Expert 1’s entire opinion and supporting professional literature is included in the brief submitted earlier (June 22, 1999) by Dr. Gale to the independent reviewer (Dr. Galinski).  Notably, the Board’s expert’s opinion (i.e., Dr. Expert 2’s opinion) as to the standard of care is unsupported by any reference to any authoritative literature in the field of podiatry.  Here it is also important to point out for the Court that Dr. Aaron Olson, the Board’s President, has known Dr. Expert 2 for twenty-five years (See:  Attached affidavit of Dr. Olson) (Tab 9 ).  It is respectfully submitted that this relationship between Dr. Olson and Dr. Expert 2 taints Dr. Expert 2’s opinion throughout and thus renders it as neither fair nor impartial.  Dr. Expert 1’s conclusion, page 23 of his opinion, is that, “Dr. Gale’s performance on the above five patients is clearly within the standard of care for a podiatrist and as such his conduct does not fall within Section 43-05-16(1)(g), (k) or (u), N.D.C.C.” (emphasis added)   Further the Board’s reply brief dated July 9, 1999 includes no comments whatsoever from Dr. Expert 2 criticizing Dr. Expert 1’s statement concerning the standard of care.  The Board’s reply brief does disagree with Dr. Expert 1’s conclusions; yet, there is not a single reference in the Board’s reply brief as to any comment from its expert (Dr. Expert 2) ever disagreeing with Dr. Expert 1’s opinion  as to the proper standard of care.

The Board failed to set forth anywhere that it ever even considered either Dr. Expert 2’s or Dr. Expert 1’s opinions in arriving at a standard of care or a minimum standard of care; accordingly, the Board’s failure to set forth the standard of care and the minimum standard of care in the case at bar is fatal to the Board’s findings of fact, conclusions and order.  Notably, the Board has never defined the standard of care or the minimum standard of care in any statute or administrative ruling; thus the standard of care must be determined by expert testimony.  In medical malpractice cases, the plaintiff is required to establish the standard of care through an expert witness who regularly practices in that particular specialty.  The court in Larsen v. Barrett, 498 N.W.2d 191, 192 (N.D. 1993) stated, “A prima facie case of medical malpractice consists of expert evidence establishing the applicable standard of care, violation of that standard, and a causal relationship between the violation and the harm complained of.” (emphasis added)   The court in Benedict v. St. Luke’s Hospitals, 365 N.W.2d 499, 502-503 (N.D. 1985) stated, “A medical specialist must exercise the care and skill ordinarily possessed and exercised by, and reasonably expected of, other specialists engaged in similar practice.” and further “The standard of care for a physician who is not considered as a medical specialist is that he must exercise the care and skill ordinarily possessed and exercised by, and reasonably expected of, other physicians engaged in similar practice.”  The four Board members who sat as the finder of fact in the present case were not qualified to determine what the standard of care or the minimum standard of care was for the five surgeries performed by Dr. Gale since none of the four Board members have a similar practice and/or a similar education to that of Dr. Gale in performing foot and ankle surgeries.  Accordingly, the only way the four Board members could determine the standard of care  and the minimum standard of care for Dr. Gale as relates to the five surgeries Dr. Gale performed is by reference to the two expert witnesses.  The Board must also be certain when making any determination that there is a proper connection between the expert’s opinion and the First Amended Complaint since the expert’s opinion must relate only to the allegations of the First Amended Complaint.  Dr. Expert 2’s opinion makes numerous references to Dr. Gale’s medical records, an issue that is not even in the First Amended Complaint.  Dr. Expert 2 considering an issue not even in the First Amended Complaint along with, his having a 25 year friendship with Dr. Olson, President of the Board, (who has been prohibited from participating in this case) should basically disqualify Dr. Expert 2’s opinion.  On the other hand, Dr. Expert 1 in his review and in his report provided to the Board clearly sets forth the First Amended Complaint for each of the five complaints against Dr. Gale.  Further Dr. Expert 1’s analysis of each patient’s case is always done from the perspective of the First Amended Complaint and Dr. Expert 1 decidedly reviewed the records and authoritative literature prior to arriving at his opinion that Dr. Gale’s conduct clearly was within the standard of care for a podiatrist in each of the five surgeries/complaints.   

The Board’s failure to make a finding of fact concerning the standard of care or the minimum standard of care based upon either of the two expert witnesses is fatal to the Board’s findings of fact and conclusions; and therefore, the findings of fact and conclusions and order of the Board should be reversed.  As set out on page 2 of Dr. Gale’s brief (filed with the Board on June 22, 1999), the Board has the burden of proof to establish that Dr. Gale violated state law by the greater weight of the evidence.  Likewise this burden of proof also applies to the Board in proving the standard of care and the minimum standard of care and since the Board has failed in this burden, the Board’s decision against Dr. Gale should be reversed. 

DENIAL OF DUE PROCESS

A second issue concerning the Board’s conduct is that the Board considered matters outside the scope of the First Amended Complaint and as such, the Board denied Dr. Gale notice of the issues to be considered and this constitutes a denial of due process to Dr. Gale.  This denial of due process must be discussed prior to any analyses of the five complaints.  Like the standard of care issue above, the denial of due process to Dr. Gale permeates the Board’s entire decision.  As will be set forth in the analysis of each of the five complaints, the Board raises new issues after the record was closed; and accordingly, denied Dr. Gale due process of law.  The court in Devous v. Bd. Of Medical Examiners, 845 P.2d 408, 415-417 (Wyo. 1993) found that a disciplinary proceeding before a licensing board is an adversary proceeding and that a licensee has a statutory and constitutional right to notice from the agency and an opportunity to be heard before the agency and that due process clauses of the United States Constitution and the Constitution for the State of Wyoming demand these minimal guarantees.  The Devous decision, at page 415, citing from an Iowa case, Gilchrist v. Bierring, 14 N.W.2d 724, 732 (Iowa 1944), stated that :

The cases, from which we have quoted, clearly announce fundamental principles, essential to the life of a free people living under a republican form of government.  The right to earn a living is among the greatest of human rights and, when lawfully pursued, cannot be denied.  It is the common right of every citizen to engage in any honest employment he may choose, subject only to such reasonable regulations as are necessary for the public good.  Due process of law is satisfied only by such safeguards as will adequately protect these fundamental, constitutional rights of the citizen.  Where the state confers a license to engage in a profession, trade, or occupation, not inherently inimical to the public welfare, such license becomes a valuable personal right which cannot be denied or abridged in any manner except after due notice and a fair and impartial hearing before an unbiased tribunal.  Were this not so, no one would be safe from oppression wherever power may be lodged, one might be easily deprived of important rights with no opportunity to defend against wrongful accusations.  This would subvert the most precious rights of the citizen.  (Emphasis added).

In North Dakota, the court in Morrel v. North Dakota Dept. Of Transp., 1999 ND 140, ¶9, 598 N.W.2d 111 states, “Due process requires a participant in an administrative proceeding be given notice of the general nature of the questions to be heard, and an opportunity to prepare and be heard on those questions. (Citation omitted)  Notice is sufficient if it informs the party of the nature of the proceedings so there is no unfair surprise.”  There is no doubt in the present case that the Board has raised many new issues after the record was closed and thereby denied Dr. Gale notice of these issues and denied Dr. Gale an opportunity to address these new issues and to allow Dr. Gale’s expert to also address these new issues.  As the court in Devous states, Dr. Gale’s license to practice podiatry is a valuable personal right and a right in which Dr. Gale has invested substantial money and over 20 years of his life with an expectation that such an investment will provide he and his family with a living.  The Board has denied Dr. Gale due process by raising new issues after the record was closed and as such, the Board’s decision against Dr. Gale should be reversed.

     ANALYSIS OF THE FIVE COMPLAINTS

Patricia Lautenschlager: 

The Board’s first amended complaint dated April 20, 1998 against Dr. Gale as relates to Patricia Lautenschlager states that Dr. Gale violated the provisions of section 43-05-16(1)(g), (k) and (u), N.D.C.C. by:

a. failing to properly treat and care for Patricia J. Lautenschlager.  Dr. Gale performed an ankle fusion of the right ankle and a procedure to remove a portion of the medial malleous and reposition pins from the external fixator in March 1993.  As a result of the procedures, the ankle was in a position of varus, and the tibia was posteriorly displaced on the talus.  Dr. Gale performed a calcaneal osteotomy in March 1994, resulting in residual varus of the foot and pain in the subtalar joint.

The Board’s Findings of Fact dated February 2, 2000 as relates to Patricia Lautenschlager states as follows: 

1.  Dr. Gale failed to intra-operatively recognize complications critical to surgical outcome, specifically in the assessment of anatomical position before closure, which created an unnecessary risk of damage to the patient’s health and safety.

2.  Subsequent to the first operation, the limited subtalar joint motion does not support a calcaneal osteotomy as the proper procedure.

3.  The follow-up procedure, relative to the varus position was ineffective.

At the outset, it should be noted that the complaint as to Patricia Lautenschlager originated from the Bone & Joint Center, P.C. December 20, 1995 letter to the Board.  Dr. Gale performed four surgeries on Ms. Lautenschlager.  The first surgery was on March 1, 1993 for an ankle fusion (arthrodesis).  The second surgery was on March 26, 1993 for removal of medial malleous and reposition of the pins.  The third surgery was on May 28, 1993 to remove the pins after the fusion was healed.  The fourth surgery was on March 21, 1994 to reposition the heel bone (heel varus).  The Board’s first finding of fact does not even specify to which of the four operations it is referring.  Based upon the Board’s second finding of fact, it would appear that the Board’s first finding of fact is referencing the first surgery on March 1, 1993.

It becomes imperative here to point out for the Court that the Board’s President, Dr. Aaron Olson, assisted Dr. Gale in this March 1, 1993 operation (Tab 10).   Yet, and very conspicuously missing, the Board has failed to take any disciplinary action whatsoever against Dr. Olson.  The Board has chosen instead to focus all of its blame on Dr. Gale.  At the time of the March 1, 1993 surgery, Dr. Gale was an employee of Dr. Olson and both Drs. spent a great deal of time with the patient pre-operatively reviewing the possible complications and problems that could occur post-operatively. It would seem that if the surgery on the patient fell below the standard of care then most certainly Dr. Olson would have to share in the repercussions.  By the Board not even questioning and/or involving Dr. Olson in this patient’s case in any way, only serves to demonstrate that the Board’s goal here is not to police its own medical discipline nor is it to look out for the best interest of the patient and the public.  Rather the Board’s goal is to focus upon causing harm to Dr. Gale with the obvious purpose of running him out of the profession and thereby eliminating any further competition to his professional peers in the Bismarck area (i.e., the Bone & Joint Center and the Board’s President, Dr. Aaron Olson).

Dr. Stone, a Board member, stated at the January 12, 2000 Board hearing  in which the Board decided its findings of fact, that no intra-operative x-rays were taken by Dr. Gale and this was the basis for the Board’s findings of fact number one. However, the truth is that intra-operative x-rays were taken and there are reports by the radiologist from Q & R Clinic who read the x-rays. Most importantly, the radiologist reports are in the record.  Both page one and two of Dr. Gale’s operative report dated March 1, 1993 is included (Tab 10) and the two radiologist’s reports of x-rays dated March 1, 1993 are also included (Tab 11) in the record.  Dr. Gale stated in his March 1, 1993 operative report that x-rays were taken during the surgery to assess the positioning and that, “The intra-operative x-rays revealed that there was good alignment and flush surfaces of the ankle arthrodesis site.”  Very significantly, the radiology reports both concur that there was proper positioning of the ankle during surgery. Yet, the key words in the Board’s finding of fact number one are that Dr. Gale failed to intra-operatively assess the anatomical position before closure. (Intra-operative refers to what took place during the operation i.e., the intra-operative x-rays are those x-rays taken during the operation).  Dr. Stone specifically stated at the January 12, 2000 Board meeting which was taped that “...my recollection is that there is nothing in the record or report that indicated these ways and or means were assessed intra-operatively and that I would think if they had been addressed and documented that this potential complication may have been averted intra-operatively.” This statement was pointed out in the record by Dr. Gale and Mr. Thune allowed Dr. Gale to submit a letter to the Board after the January 12, 2000 Board hearing to specifically point out to the Board that the radiology reports and Dr. Gale’s operative report were overlooked by Dr. Stone. However,  Dr. Stone and the other Board members refused to change their mind about the presence or absence of the x-rays which were taken intra-operatively.  Importantly, the radiology report and Dr. Gale’s operative report both are part of the record.  How could something so obvious be completely missed by Dr. Stone?  Clearly, the other Board members either (1) failed to even review the record or (2) refused to acknowledge the very existence of the reports that are plainly part of the record.

Furthermore, the first  amended complaint fails to raise any issue about intra-operative x-rays not being taken. Since the first amended complaint does not raise any issue about intra-operative x-rays, the Board should not be allowed to raise a new issue after the record and the arguments of the Board and Dr. Gale were closed.  Raising a new issue after Dr. Expert 1 had already completed his opinion did not allow Dr. Gale and his expert (Dr. Expert 1)  to fairly deal with this new issue.  Raising a new issue after the record is closed is a denial of due process of law and as such, the Board’s decision against Dr. Gale should be reversed.

The Board’s findings of fact number 2 states, “Subsequent to the first operation, the limited subtalar joint motion does not support a calcaneal osteotomy as the proper procedure.”   This issue is also not in the Board’s first amended complaint.  The first amended complaint states, in part,  “Dr. Gale performed a calcaneal osteotomy in March, 1994, resulting in residual varus of the foot and pain in the subtalar joint”.  The Board’s finding of facts states that due to the limited motion the procedure was a bad choice. Yet, in the first amended complaint, the Board only states that the procedure which Dr. Gale performed didn’t work and caused pain. The Board’s findings of fact are outside the scope of the first amended complaint and therefore, the Board is again trying to raise a new issue that was not in the first amended complaint after the record was closed.  Such conduct denies Dr. Gale and his expert a chance to respond to the new issue. Notably, there is a difference between saying that a procedure was the wrong choice or saying that the procedure did not correct the problem and caused pain. Additionally, both the Board’s findings of fact and the first amended complaint are incorrect according to the record.  One only needs to look at the Board’s own expert report (from Dr. Expert 2) which states on page 6 that, “On March 21, 1994, Dr. Gale returned the patient to surgery to correct the varus heel deformity. He performed a calcaneal osteotomy and succeeded in everting the calcaneus to a position of varus or even slight valgus, depending on which of the examiners you chose to accept. But in any event he did correct the heel varus.” (emphasis added)  Thus even according to the Board’s own expert, Dr. Gale did correct the problem; and therefore, this part of the Board’s findings of fact is without support in the record and lacks merit and should be reversed.  

As pertains to Dr. Gale’s procedure being the correct choice of procedure, Dr. Expert 1 (Dr. Gale’s expert) states in his opinion on page 19, #2, “I myself have encountered this complication and problem after performing several hundred of these procedures.  Dr. Gale was credentialed and considered qualified by his hospital to perform this procedure as well.”  Dr. Expert 1 also provides a reference to authoritative literature (page 19 of his opinion, #4, reference #14) that supports his conclusion that calcaneal osteotomy is an acceptable procedure which is often used and that it can increase motion at the subtalar joint. Dr. Expert 1’s opinion establishes the standard of care that should be applied in this particular case.  Dr. Gale complied with this standard of care.  Accordingly, the Board’s findings of fact number two should be reversed.

As far as the patient’s pain that is mentioned in the first amended complaint, there is no mention of pain  anywhere in the record. Why or what caused the patient’s pain is not in the record and there is nothing to support the Board’s allegations that Dr. Gale was responsible for causing her pain.  The patient obviously had pain from the original injury and severe arthritis that had developed prior to her ever coming to see Dr. Gale. This fact is in the record and is the reason that the patient was seeking medical attention from Dr. Gale in the first place. If there was pain continuing after the surgery was performed by Dr. Gale for the ankle fusion and the calcaneal osteotomy, the existence of such pain does not mean that Dr. Gale caused the pain. Significantly, the pain that the patient had before she saw Dr. Gale was from the arthritis in the subtalar joint which started after the patient’s original injury occurred which was a few years before she ever saw Dr. Gale.

As relates to the Board’s finding of fact number three, “The follow-up procedure, relative to the varus position was ineffective.” (See: discussion set forth above)   Such discussion explains that the record clearly provides that both the Board’s expert and Dr. Gale’s expert agree that Dr. Gale’s procedure did in fact correct the problem. The first amended complaint states, in part,  “As a result of the procedures, the ankle was in a position of varus, and the tibia was posteriorly displaced on the talus.”  The Board members at the January 12, 2000 Board meeting all agreed that this position is an acceptable complication. The Board’s expert, Dr. Expert 2, stated in his report, page 6, “It should be acknowledged that even the best of surgeons can err in the positioning fusion of the ankle.” Further Dr. Expert 1 states on page 21 of his opinion, “The complexity of these type of procedures carries the same risks and complications regardless of which experienced surgeon performs the procedures.  As noted early, I have encountered these identical problems after several hundred of these procedures.  Clearly Dr. Gale is highly trained and experienced, there can be no question about this.  His training records demonstrate this.”  Accordingly, the Board’s findings of fact number three is in error and should be reversed.

Geraldene Parsley:

The Board’s first amended complaint dated April 20, 1998 against Dr. Gale as relates to Geraldene Parsley states that Dr. Gale violated the provisions of section 43-05-16(1)(g), (k) and (u), N.D.C.C. by:

e.  failing to properly treat and care for Geraldene Parsley.  Dr. Gale performed a gastrocnemius recession with exploration of the left Achilles tendon on May 2, 1994.  The records do not demonstrate this surgery was appropriate and Dr. Gale’s post-operative diagnosis did not match the operative findings.

The Board’s Findings of Fact dated February 2, 2000 as relates to Geraldene Parsley state as follows:

4.  Dr. Gale failed to completely and correctly assess pre-operative findings, both clinical and diagnostic, before surgical procedure was implemented.

5.  Dr. Gale’s pre-operative assessment includes a simultaneous post-operative assessment, both dictated on April 22, 1997, ten days before the operative procedure was completed.  This is a departure from the minimal standards of acceptable and prevailing podiatric medical practice.

The Board’s finding of fact number four states, “ Dr. Gale failed to completely and correctly assess pre-operative findings, both clinical and diagnostic, before surgical procedure was implemented.”  Dr. Expert 1 on page 9 of his opinion states, “It seems crystal clear from Dr. Gale’s records that surgery was appropriate for this patient, given the circumstances and nature of Ms. Parsley’s condition and complaints and orthopedic findings.  Even Dr. Johnson-the complainant- makes this clear in several places in his records over an extended period of time.  I wonder if we are all reading the same records?” (emphasis added)  Dr. Expert 1, on page 11 of his opinion, states that his conclusion is “The surgery was appropriate and the records do demonstrate this fact.” (emphasis added)   Even Dr. Expert 2 (the Board’s expert) at page 17 of the Board’s brief states, “The question then must be asked as to whether or not the surgery was needed.  And I feel that with 4 years of treatment by Dr. Johnson and with the patient continuing to have painful symptoms and with Dr. Johnson still reporting tightness that the surgery may well have been justified.” (emphasis added)  However, after making this statement Dr. Expert 2 then went on to say on page 18 of the Board’s brief, “I am persuaded that Dr. Gale took his patient to surgery without adequate documentation in his records of the need for the surgery.”  Consequently, Dr. Expert 1 even commented on page 11 of his opinion about Dr. Expert 2’s inconsistent statements wherein Dr. Expert 1 states, “This is paradoxic and makes no sense since the prolific amount of prior history and record documentation which he must have been provided from Dr. Johnson’s office would have easily made the conclusion for surgery obvious at this point in time.” (emphasis added)

The only “clinical” findings that the Board must be referring to are mentioned in the record for patient Geraldene Parsley was the measurement of ankle range of motion. This measurement is in the record as well as being in Dr. Gale’s letter to the Board after the January 12, 2000 Board meeting.  The measurement of the range of motion is documented in Dr. Gale’s progress notes as well as the pre-operative History and Physical which Dr. Gale dictated on this patient. This is all in the record. Further the Board members also acknowledged at the January 12, 2000 Board meeting that they had no problem with the procedure being correct for this patient’s situation. It was pointed out by Dr. Expert 1, page 9 of his opinion, that the person who sent in the complaint (Philip Johnson, MD) agreed that the surgery was appropriate.  Dr. Johnson evaluated this patient and treated her for years before this patient was referred to Dr. Gale by Dr. Fanous to have this procedure performed. Dr. Johnson also saw this patient after she had healed from her surgery performed by Dr. Gale. Dr. Johnson stated in his records which are part of the Board’s record that the patient’s problem was resolved and she no longer had any disability, disability that had been present when Dr. Johnson was treating her prior to her surgery with Dr. Gale. All of this was not only in the record in the first place for the Board to read and review, but it was in Dr. Gale’s letter to the Board after the January 12, 2000 Board meeting which is also part of the record.  The Board allegedly read this letter (and the record) prior to the January 27, 2000 Board meeting.

The only “diagnostic” procedure that was performed on this patient was an MRI. This was not part of the record.  Dr. Stone and Dr. Hofsommer, two members of the Board, took it upon themselves to somehow find the MRI despite the fact that it was not part of the record so they could review it. Furthermore, the MRI was in Bismarck and both Dr. Stone and Dr. Hofsommer reside in Fargo and so they had to make special arrangements to get the MRI since they both knew that the MRI was not in the record.   Dr. Hofsommer, at the January 27, 2000 Board meeting, gave an excuse for his conduct essentially stating that he made a mistake and that he knew he shouldn’t have read it.    Dr. Stone did not accept any responsibility for his attempt to include his reading of the MRI, when he knew full well that the MRI was clearly not part of the record. There were no other “diagnostic” tests performed and therefore, the Board must be referring to the MRI. Since the MRI is not part of the record, the Board is not allowed to use this information. The briefs from both of the two experts never refer to the MRI and if the Board wanted to add this MRI to the record, then Dr. Gale would have to be given a chance to respond to any such allegations made by the Board about the MRI. At the Board meeting on January 12, 2000, Dr. Hofsommer and Dr. Stone both stated that they took the MRI to radiologists to have them look at the MRI after the record had been closed. At the Board meeting on January 27, 2000, it was acknowledged by the Board’s attorney as well as Dr. Hofsommer, but not Dr. Stone, that the MRI should never have been reviewed by them and that any reference to the MRI by the Board members would have to be removed from the findings of fact. Evidently, Dr. Hofsommer  forgot about his earlier statement that he had already made at the January 12, 2000 Board meeting because at January 27, 2000 Board  meeting Dr. Hofsommer then stated that he was looking at another patient’s MRI in his office and “suggested” that he thought it was Geraldene Parsley’s MRI and that it was part of the record for her case that he was supposed to be reviewing.  At the January 27, 2000 Board meeting, Dr. Stone failed to mention anything at all about why he was reviewing this MRI with a radiologist after the record was closed. Yet, this MRI was the very reason that Dr. Stone and the other Board members agreed that there was a problem with this patient’s case when the Board was drafting their findings of fact on January 12, 2000. For the above reasons, this findings of fact number four is also incorrect and should be deleted. Unfortunately, this is also proof that the Board has tampered with the record and that the Board clearly has not been acting in good faith in its dealings with Dr. Gale.

The Board’s finding of fact number five is that, “Dr. Gale’s pre-operative assessment includes a simultaneous post-operative assessment, both dictated on April 22, 1997, ten days before the operative procedure was completed. This is a departure from the minimal standards of acceptable and prevailing podiatric medical practice.” This finding demonstrates that the Board has not made a good faith attempt to review and understand the record.  The Board’s finding first of all contains a typographical error since all the events took place in 1994, and not 1997.  The note in Dr. Gale’s  file regarding this patient is dated April 22, 1994 and such note is attached (Tab 12. ) Accordingly, this is a patient record which Dr. Gale dictated on April 22, 1994 after a pre-operative office visit with the patient and the format of this dictation is  standard in the profession.  It is standard procedure  at a pre-operative office visit dictation to state that the post-operative diagnosis will be the same as the pre-operative diagnosis.  Coincidentally, this is the very same format that Dr. Aaron Olson used when Dr. Gale was employed by Dr. Olson.  One can see that Dr. Olson used the same format when he had a pre-operative office visit with a patient (Shirley Sailer) prior to an operation (Tab 13) wherein Dr. Olson states the post-operative diagnosis is the same as his pre-operative diagnosis.  [Note: Tab 13 for Shirley Sailer is part of the record, but it is found in the record as relates to Shirley Sailer’s patient records.]  Similar pre-operative office visit dictations for the other patients will be found in the record also.  The operative report for Geraldene Parsley was not dictated on April 22, 1994, rather it was dictated on May 2, 1994 (Tab 14).  May 2, 1994 is the same day that Geraldene Parsley had her surgery performed by Dr. Gale.  Importantly, the operative report is prepared by the hospital (here Medcenter One) and not by Dr. Gale or his staff.  The operative report is dated May 2, 1994 and one can see at the end of the dictation that the dictation was performed on May 2, 1994 and the date it was transcribed was May 8, 1994.  The Board has no factual basis in the record or from the two experts that establishes that a pre-operative assessment cannot refer to a post-operative assessment.  As set forth above, this is standard procedure.  Even the Board’s own President (Dr. Olson) utilizes this exact same procedure.  Accordingly, the Board’s finding of fact number five is not supported by the record and should be reversed.

Furthermore, there is nothing in the first amended complaint that raises any issue about a pre-operative report being dictated ten days prior to the surgery and no reference to any post-operative diagnosis as being an issue of something that Dr. Gale should not have done.  Additionally, there is nothing in the Board’s brief or its expert’s opinion that  refers to Dr. Gale’s pre-operative office visit and dictation dated April 22, 1994 as somehow being improper.  On April 22, 1994, the patient was seen by Dr. Gale before the surgery to go over the procedure and sign the consent forms at Dr. Gale’s clinic. In most instances, the pre and post operative assessments are known and are the same. If the assessment changes at the time of surgery, then the assessment is changed on the official operative report that is dictated after the surgery.  There is no “rule” that states a planned surgery is only what has to be performed or the only operation that will be performed. In fact, just the opposite is true. There is a reference to a document in the record that states that if it’s in the best interest of the patient, the surgical procedure can and should be modified in whatever manner is necessary. This is part of a series of documents established by the American College of Foot & Ankle Surgeons (ACFAS) which is the authority on foot and ankle surgery in the United States. Dr. Gale is a Fellow of the ACFAS. The other Board members who are podiatrists understand the meaning of the pre-operative office visit record dated April 22, 1994 and they should have clarified this issue for Dr. Moen, but they didn’t bother to do so.  It was Dr. Moen who brought up this issue at the January 12, 2000 Board meeting.  Dr. Moen is a family practice medical doctor who does not perform surgery and therefore, Dr. Moen was more than likely confused about the purpose of this pre-operative office visit.  Likewise the April 22, 1994 dictation does not state anywhere in it that surgery was performed on April 22, 1994.  There are documents in the record other than just the operative report that support the fact that the surgery was performed on May 2, 1994, not April 22, 1994. Again, this issue has to do with medical records and such issue is not part of the complaint against Dr. Gale.  Thus  this issue should not be considered since the Board once again is attempting to raise a new issue that is outside the scope of the first amended complaint; and accordingly, in direct conflict with Dr. Gale’s right to due process.