| STATE OF NORTH DAKOTA
COUNTY OF BURLEIGH |
IN DISTRICT COURT SOUTH CENTRAL JUDICIAL DISTRICT CIVIL NO. 00 -C-1322 |
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| Dr. Brian D. Gale, | ) | |
| ) | ||
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Appellant, |
) | |
| ) | ||
|
vs. |
) | Dr. Gale’s Reply Brief to the Board’s Response |
| ) | to Dr. Gale’s Brief on Appeal of the Board’s | |
| ) | Administrative Decision | |
| North Dakota Board of Podiatric | ) | |
| Medicine, | ) | |
| ) | ||
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Appellee. |
) |
On October 23, 2000, the Board filed its brief in response to Dr. Gale’s brief on appeal of the Board’s
administrative decision. This brief is Dr. Gale’s reply brief which, under the Court’s order, is due by October 30,
2000.
The Board in its response brief, page 1, asserts that Dr. Gale has ignored that the Board’s findings are binding
and nonapealable. This is not true. Dr. Gale clearly set forth in his opening brief, page 4, that the Board’s findings
were a breach of the contract between the parties. The stipulation required that the findings of the Board would
not be appealable; however, as Dr. Gale set forth in his appeal brief, it was the Board that breached the contract
between the parties. Dr. Gale’s appeal brief set forth six violations by the Board which justifies an appeal of the
Board’s findings, any one of which is a sufficient basis to set aside the Board’s decision, but when considered as
a whole provides overwhelming justification to set aside the Board’s decision. The Board’s failure in its response
brief to even address the issues set forth in the analyses of the five complaints against Dr. Gale only serves to
demonstrate the Board’s arrogance and attitude that it believes it does not have to address the issues raised by
Dr. Gale in his appeal brief. The Board failed to address the following issues raised by Dr. Gale in his appeal
brief:
– (1) it was the Board that did not limit its decision to the issues set forth in the First Amended Complaint,
– (2) it was the Board that raised new issues that were not part of the First Amended Complaint,
– (3) it was the Board that went outside the record looking for reasons to rule against Dr. Gale,
– (4) it was the Board that conveniently ignored facts that were in the record which the Board stated were not in
the record,
– (5) it was the Board that failed to establish the required standard of care for each of the five procedures
involved in the five complaints against Dr. Gale and
– (6) it was the Board who failed to consider all the facts in the record, failed to consider Dr. Gale’s brief and
Dr. Gale’s expert witness.
Failure to address the issues demonstrates that the Board feels it is above the law and that it does not have to defend its decision on each of the five complaints against Dr. Gale. This conduct by the Board is not acceptable.
Dr. Gale has set forth in his appeal brief valid issues on each of the five complaints and such issues must be
explained in order to establish that the Board’s decision is in accordance with the law. Simply claiming that the
four Board members did their job without addressing each of the issues is like stating, the “King can do no
wrong”. While in reality, the “King” did not do its job as it is required under the law to do.
Accordingly, it becomes the function of the Court in this appeal to review the issues raised by Dr. Gale and to
determine whether the Board complied with the law. After all, it is the Court that makes the determination as to
whether a reasoning mind would have arrived at the same decision that the Board came to. This
reasoning mind
requirement requires that the Court must examine each of the five complaints and the analyses of the five
complaints which Dr. Gale sets forth on pages 17 through 48 of Dr. Gale’s opening brief. Examining the issues
raised by Dr. Gale will require a formidable amount of time, and that is why in Dr. Gale’s opening brief, Dr. Gale
sets forth for the Court each of the five complaints and what the First Amended Complaint states for each
complaint. Further Dr. Gale sets forth for the Court what the Board’s findings are on each of the five complaints
and then follows with a discussion of the issues and the facts pertaining to each of the five complaints. The Board
has clearly defaulted in its opportunity to explain its findings. Thus the Court is justified in treating the Board’s
failure to address the issues raised by Dr. Gale as an admission that the Board’s findings are arbitrary and
capricious, and that such findings and decision by the Board should be reversed.
The Board agreed with Dr. Gale at the Board meeting in August 11, 1999 in Jamestown that
Dr. Galinski’s
opinion would be appealable and that is why the Board then agreed instead to have four members of the Board
act as independent reviewers in place of Dr. Galinski.. Regrettably, the four Board members who were supposed
to independently review the First Amended Complaint and the facts then turned around and failed to do their job;
just as Dr. Galinski had done previously by his opinion (Tab 7). It is the Board’s conduct in committing certain
acts and omitting other acts as set forth above that resulted in the Board’s breach of the contract between the
parties. This then is precisely why Dr. Gale is appealing the findings and decision of the Board.
Following the Jamestown meeting (August 11, 1999), where both parties agreed that Dr. Galinski’s opinion was
indeed objectionable and appealable, the parties signed a stipulation (Tab 8). The stipulation signed on August
12, 1999 was that the factual findings of the Board would not be appealable by Dr. Gale. Significantly, this
stipulation was signed on behalf of Dr. Gale based upon the assumption and good faith that the Board would do
its job (and that the Board would not simply repeat what Dr. Galinski had done in his opinion). Unfortunately, the
Board did not do its job. By such failure, the Board breached the contract between the parties; which is precisely
why this appeal is necessary. Relating to a discussion on stipulations, the Supreme Court of North Dakota in
Lawrence v. Lawrence, 217 N.W.2d 792, 796 (N.D. 1974) stated:
– Generally, stipulations are either procedural or contractual in nature. Procedural stipulations are aimed at facilitating the course of a lawsuit. They simplify proof or foreshorten procedural requirements. Contractual stipulations affect the subject matter of a lawsuit. They deal with the rights or property at issue. They are styled stipulations only because they occur in connection with litigation. In essence they are contracts and are entitled to all the sanctity of a conventional contract. (Citation omitted). The essential distinction between contractual stipulations and contracts lies in remedy. The court retains management and control over all stipulations. Remedies can be sought and relief afforded in that same action rather than starting afresh with another lawsuit. (Citation omitted).
– The stipulation which the defendant would invalidate in the instant case is contractual. In determining whether a contractual stipulation is to be set aside, the law of contracts should be consulted. By her motion, plaintiff is seeking a result comparable to recission in a contract case. Therefore we shall look to the law governing recission of contracts for guidance.
– Our statute gives a party to an agreement the right to rescind for failure of consideration. Sec. 9-9-02 NDCC. Consideration for a contract fails when a party has failed or refused to perform a substantial part of his bargain. (Citations omitted).
The court in Lawrence v. Lawrence, supra at page 797 held, “Plaintiff has plainly breached the agreement by failing to perform according to its terms. Such breach is far from insubstantial in degree. Therefore, under the law, she would be entitled to rescind.” Then in Wagner v. Wagner, 1999 ND 169, 598 N.W.2d 855, the court again follows the language set forth above from the Lawrence v. Lawrence case. In the case now before the Court, the Board’s conduct in failing to perform according to the stipulation and the Board’s violation of the terms of the stipulation entitles Dr. Gale to rescind the stipulation and appeal the Board’s factual findings.
The Board at page 2 of its response brief states that Dr. Gale is not appealing the disciplinary action taken by the Board. Dr. Gale agrees that the discipline set forth by the Board is within the statutory guideline. However, such discipline will be inappropriate in the event the Court agrees with Dr. Gale that the Board’s conduct violates state law and therefore such discipline would then be reversed.
The Board on pages 4 through 6 in a section of its brief captioned “Statement of Facts” sets forth that Dr. Gale has had more complaints filed against him (i.e., 14 complaints) than the combined total of complaints filed against all other licensed North Dakota podiatrists in the 71 year history of the Board. That could be true. Yet, the real critical issue that needs be known here is just who it was that filed all of these complaints against Dr. Gale. With the exception of a very select few, the sum of these complaints against Dr. Gale was the direct result of Dr. Olson and of the Bone and Joint Clinic; all competitors of Dr. Gale. But for the blatant attempt by Dr. Olson and the Bone and Joint Clinic to quash Dr. Gale’s private practice in order to eliminate their competition in the Bismarck-Mandan area by getting rid of Dr. Gale, Dr. Gale would not be experiencing this nightmare and there would be no barrage of complaints against him. Rather Dr. Gale would be enjoying his life and his private practice as he is constitutionally entitled to do under the law.
This attack by the Board, Dr. Olson and the Bone and Joint Clinic against Dr. Gale in order to eliminate their competition is very similar in nature to the attack that Dr. Patrick experienced in
Patrick v. Burget, 486 U.S. 94 (1988). Dr. Patrick was employed by the Astoria Clinic in Astoria, Oregon (a small town of about 10,000 people and only one hospital) and in 1972, Dr. Patrick became a member of the medical staff of the hospital. The majority of the staff members at the hospital were also employees or partners in the Astoria Clinic. After one year, the Astoria Clinic invited Dr. Patrick to become a partner but Dr. Patrick declined this invitation because he felt that he was not being compensated based upon his production. Dr. Patrick then established his independent practice in Astoria. After establishing his private practice, the physicians associated with the Astoria Clinic consistently refused to have professional dealings with Dr. Patrick and refused to refer patients to him or provide him with backup coverage for patients. After a few years members of the hospital staff, being the same members that were also partners or employees of the Astoria Clinic, started proceedings to terminate Dr. Patrick’s privileges at the hospital on the basis that Dr. Patrick’s care of his patients was below the standard of care. The charges against Dr. Patrick originally encompassed 21 cases but eventually, the cases were reduced to nine cases. The experts at trial disagreed as to the magnitude of Dr. Patrick’s errors in the nine cases. See
Patrick v. Burget, 800 F.2d 1498, 1504 (9th Cir. 1986). At the hearing to revoke Dr. Patrick’s hospital privileges, the committee was noted as being inattentive during Dr. Patrick’s presentation and the doctors on the committee refused to testify as to their personal knowledge of the cases.
Dr Patrick sued the members of the hospital staff/Astoria Clinic partners under sections 1 and 2 of the Sherman Act setting forth that they had initiated and participated in the hospital peer-review proceedings in order to reduce competition from Dr. Patrick, rather than to improve patient care. The jury agreed with Dr. Patrick and awarded him $650,000 and such damages were then trebled under the antitrust provisions. The affect of the Supreme Court decision in Patrick was that Dr. Patrick prevailed since the Supreme Court held that the state-action
doctrine does not protect Oregon physicians from federal antitrust liability for their activities on hospital
peer-review committees.
In the case now before the Court:
– (1) the Board failed to limit its consideration to only the First Amended Complaint,
– (2) the Board raised new issues,
– (3) the Board considered evidence outside the record,
– (4) the Board conveniently ignored facts in the record which the Board stated were not in the record,
– (5) the Board failed to establish the standard of care for each of the five complaints and
– (6) the Board failed to consider all the facts in the record, failed to consider Dr. Gale’s brief and failed to consider Dr. Gale’s expert witness.
Such conduct by the Board establishes that its purpose is designed to simply eliminate Dr. Gale as a competing
podiatrist in the Bismarck trade area, similar to Patrick, rather than to improve patient care. This misconduct by
the Board is unconstitutional and is in violation of section 28-32-19, N.D.C.C. Further no
reasoning mind would
be able to look at the evidence, the First Amended Complaint and the reports of the two expert witnesses and
arrive at the findings set forth by the Board (Tab 1).
The Statement of Facts presented by the Board, pages 4 through 6 of its response brief, fails to set forth a single
fact that explains or refutes the issues raised by Dr. Gale in his appeal brief. Failure to present facts and argument
on the issues raised is an admission that the Board has no facts or argument to dispute the issues raised by Dr.
Gale. Thus such failure by the Board to properly respond demonstrates that indeed the Board acted arbitrarily
and capriciously against Dr. Gale and that such findings and decision by the Board should be reversed.
On page 10 of the Board’s brief it states, “In this case, a reasoning mind could reasonably determine the Board’s
factual conclusions are supported by the weight of the evidence. The overwhelming evidence, which five medical
doctors found to show Dr. Gale failed to adequately care for or treat five patients, clearly supports the Board’s
findings.” In other words, if the Board says its black when in fact it is really white then nobody is supposed to
challenge the Board’s decision. Notably absent is the Board’s failure to challenge or worse yet, even address Dr.
Gale’s assertion on pages 10 through 15 of Dr. Gale’s opening brief regarding the inadequate surgical
qualifications of the four reviewing Board members. Such failure again demonstrates an admission that Dr. Gale is
correct. Likewise Dr. Gale’s affidavit (Tab 46) concerning the four reviewing Board members lack and/or
inadequate surgical training and qualifications to determine the standard of care pertaining to the five cases
involving surgery is also an admission that Dr. Gale’s position regarding their limited training and lack of
qualifications involving surgery is undisputedly true. Without any expressed statements by the Board concerning
the standard of care and how the four reviewing Board members determined the standard of care there is
absolutely no basis in the record that these four reviewing Board members were qualified to define and apply any
required standard of care in review of what Dr. Gale did and how Dr. Gale performed concerning these five
surgeries. [See: Dr. Vogler’s opinion who is eminently qualified to determine the required care necessary in such
surgeries as to his expert opinion of how Dr. Gale’s performance was at or above the standard of care in each of
the five surgeries.] Accordingly, the Board by its silence and failure and/or its inability to deal with the standard of
care issue has allowed Dr. Gale’s position to go unchallenged; and as such, the Board had no basis to judge Dr.
Gale’s conduct in the five operations.
On page 10 of the Board’s brief, it states that the Supreme Court requirement in a worker’s compensation case
that the Board had to clarify inconsistencies in the medical evidence somehow only relates to worker’s
compensation cases. This is not what the Supreme Court states. One will search in vein to find any statement in
any of the cases cited by the Board on page 10 of its brief wherein the Supreme Court stated that the
requirement to clarify inconsistencies in medical evidence is in any way limited only to worker compensation
cases. If the Supreme Court had intended to limit its holding to only worker’s compensation cases, it would have
said so. By the Supreme Court failing to limit its decision, means that the Supreme Court’s decision applies to all
administrative proceeding cases. There is no question but that in the present case, the Board should have applied
the Kuklock v. N.D. Workers’ Comp. Bureau, 492 N.W.2d 572, 574-575 (N.D. 1992) rule. Such rule states
that where there is inconsistent medical evidence, the Board cannot rely upon evidence favorable to its position
without attempting to clarify the inconsistencies. Of course, the problem in the present case now before the Court
is that the Board is unable to clarify the inconsistencies since the Board simply refuses to consider or apply the
facts.
On page 10 and 11 of the Board’s brief, it claims that somehow the standard of care is not applicable in a
disciplinary proceeding. Who is the Board trying to fool? The North Dakota statute section 43-05-16(1)(k),
N.D.C.C. states to the contrary. A reading of this statute is all that is needed to discover that, “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.” Hence this statute requires the Board to establish “...the
minimal standards of acceptable and prevailing podiatric medical practice ” before it can determine whether
Dr
Gale’s conduct falls above or below the minimal standard of care. In the Board’s Conclusions of Law (Tab 1) in
paragraphs 1 through 5, the Board expressly states that Dr. Gale’s conduct fails to conform to minimal standards
of acceptable and prevailing podiatric medical practice and again in paragraph 6 the Board implies the same by
stating that Dr. Gale’s conduct was inappropriate care. Yet, the Board failed to ever set forth in its findings just
what the minimal standard of care was; and such failure and inadequate findings by the Board negates paragraphs
1 through 6 of its conclusions of law. Since the Board’s Conclusions of Law are in turn based on inadequate
Findings, the Board’s conclusions of law are also faulty and inadequate and should be set aside.
At the bottom of page 11 and page 12 of the Board’s brief, it discusses Dr. Gale’s due process allegations. The
Board states that the First Amended Complaint was more than sufficient to give Dr. Gale notice of the issues that
would be determined. This is not true. The Board clearly expanded the issues on each of the five complaints to
include issues that were not included in the First Amended Complaint. These new issues raised by the Board are
set forth in Dr. Gale’s opening brief in his section on Analyses of the Five Complaints, pages 17 through 48. The
Board once again failed to address any of these “new issues” and chose instead to pretend these “new issues”
don’t exist. Such issues do exist and it was the Board that raised them and it was the Board that failed to even
address them and they still remain unexplained by the Board. It is true that Dr. Gale did submit to the Board a
summary of the errors the Board had made at the January 12, 2000 Board
meeting. However, it is equally true
that the Board failed to ever address any of the errors that the Board made at its January 12, 2000 Board
meeting even after Dr. Gale summarized such errors for the Board. If the Board refuses to even consider and/or
address the errors that it made then it did no good for Dr. Gale to inform the Board of the errors. Obviously, the
Board had already made up its collective mind “so don’t bother us with the facts” so to speak. Regrettably, the
Board was not going to let facts that it failed to even consider stand in its way of its predetermined decision to
discipline Dr. Gale. Furthermore had Dr. Gale known of the new issues prior to the Board making its decision
then Dr. Gale could have had his expert witness consider these new issues and the expert could have opined on
these new issues. As a result of the attitude and the conduct of the Board as to disregarding the issues, not caring
what errors it had made and conveniently ignoring “all” the facts, it would have done Dr. Gale no good to have
addressed these new issues since the Board had already made up its mind and knew what its decision was going
to be prior to the January 12, 2000 meeting. What the Board has failed to understand, appreciate or apply is that
due process under the Constitution applies prior to the time of any decision making. Once the Board had made
its predetermined decision, it was too late for Dr. Gale to bring to the Board’s attention the many errors the
Board had made and to attempt to respond to the new issues that the Board raised on January 12, 2000; the
very time when the Board stated its already determined decision. It is the Board’s failure to give Dr. Gale notice
prior to January 12, 2000 that is in the violation of Dr. Gale’s right to due process. Hence it is this violation of
due process that also requires the Board’s decision to be reversed in the present case.
Conclusion
The Board has failed to address the facts and issues raised in Dr. Gale’s appeal brief. Accordingly, Dr. Gale
requests that the Court reverse the Board’s decision against Dr. Gale as being unconstitutional in raising new
issues, considering facts not in the record, failure to consider the facts in the record and failure to set forth the
minimal required standard of care as the basis for each of the five complaints against Dr. Gale. No
reasoning
mind could reasonably decide that the Board’s factual conclusions are supported by the weight of the evidence
as required under the law.
Respectfully submitted this 30th day of October, 2000.
____________________________________
James L. Norris - ID # 04138
Attorney for Appellant
James L. Norris, P.C.
P.O. Box 978
Bismarck, ND 58502-0978
(701) 255-2310
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above Dr. Gale’s Reply Brief to the Board’s Response to Dr.
Gale’s Appeal of the Board’s Administrative Decision was personally delivered on October 30, 2000 to the
following:
Gary R. Thune
Attorney at Law
314 East Thayer Avenue
Bismarck, ND 58501
____________________________________
James L. Norris
Attorney for Appellant