Testimony to be added for Bill # 1262

This letter is in response to the testimony given in regards to House Bill #1262 on Tuesday, January 23, 2001. I am responding to specific statements made by Gary Thune and Aaron Olson.

I am not going to defend myself on every issue because I realize that I was not on trial although I felt that way. The truth is that it would be very gratifying if I would be given a chance to debate or even discuss the specific issues regarding the circumstances by which I have been disciplined. There never has been a trial and I have never been given a fair chance to be heard and although I tried to make several points repeatedly, they were never considered seriously.

The issue is the board system in North Dakota and my personal experience happens to be with the problems that are ongoing with the Podiatry Board. It would be helpful if you could see all of the letters that have been sent to the Governor's office over the past several years concerning this issue. I am in the process of trying to obtain copies of those letters. Up to the point of submitting this to you I have not been allowed access to those letters.

There are some serious problems with the amended portion of 1262 in reference to the discipline and the payments to the Board added to section 43-05, Section 2, Costs of prosecution : Disciplinary proceedings. This section is directly targeted at me because the Board has fined me the $20,000 they spent to prosecute me. I spent much more than that and was always willing to settle with them. Please understand that the only purpose of prolonging the disciplinary process against me was to cost me a tremendous amount of legal fees. Then they put their fees on top of mine as if I was the reason they had to spend all that money. In approximately one year I will have to pay some amount close to $15,000 or I will have my license suspended the way this is written. They have always had a plan to continue to destroy me and this is just part of it. There has to be some way to protect the doctor and this isn't it.

Once again, there are no checks and balances as to the reasonableness of the investigation and how much it costs. The motivation for the Board to find the doctor guilty is increased by this amendment to Bill 1262 because then they know they will have their expenses paid. If they want to ruin a doctor they just have to drag things out for a few years and then find him guilty and he has to pay for his expenses and the Board's.

The purpose of any professional board is the protection of the citizens. If there is any doubt as to the quality of their decisions, it behooves the legislature to remove the members of the board and allow other members to take their place.

The issue is not Gale vs. Olson. I am not the only person who has a serious problem with the Board system in North Dakota and the Podiatry Board; as you heard from Dr. Francisco Tello.

The result of keeping out competition and especially highly trained specialists such as myself and Dr. Martin is that it lowers the standard of care for healthcare in North Dakota. So as the quality of healthcare improves everywhere else in the United States we suffer. It's naturally more difficult to recruit and keep the highly specialized doctors from outside North Dakota in our state because of the cold winters.

I came to North Dakota because I grew up in a small town in the Midwest outside of Chicago and I was tired of living in places like Philadelphia, California and south Florida because of the crime and cost of living. I thought that I would be appreciated by the medical community however I have been discriminated against and persecuted since before I moved here.

The reason I stay here is because my wife is from Mandan and because I believe this is a wonderful place to live and raise a family. I also have had incredible support from my patients. I have estimated that my patient approval rating is approximately 98%. The dedication and understanding my patients have for my situation has been a source of strength for me.

In response to a few of the comments made towards me I would like to clarify the following points. Of the two malpractice cases against me, the first was started after Dr. Charles Dahl of the Bone & Joint Center talked the patient into suing me. This was also the first complaint that was sent in against me; not by the patient but by Dr. Dahl. To many people it wasn't even a complaint it was a letter of inquiry asking Dr. Olson what the scope of practice was for a Podiatrist in North Dakota. Interestingly, Dr. Olson was responsible for expanding the scope of practice for Podiatrists prior to me coming to North Dakota in approximately 1990. This was considered to be housekeeping  by Dr. Olson as a way of putting the Bill through at that time. Expanding the scope of practice wasn't considered housekeeping when it was reviewed by an administrative judge a few years later. In fact this judge felt that the scope was never really expanded properly and felt that Podiatrists should only be treating feet and not ankles until it were to be properly made into law. Of course the Podiatry Board did not accept this part of the Judge's decision.

The other malpractice case that I have had involved a patient who sued me based upon Dr. Olson's recommendation to her and her husband. Dr. Olson told them that he would be an expert against me and then once the suit was filed he refused to help the attorney for the patient. I have Dr. Olson's hand written documentation of this information.

Mr. Thune and Mr. Sletten talked about how the Podiatry Board has been present in this state for about 70 years and there weren't any problems until Dr. Gale came to town. I was brought here by Dr. Olson to expand his practice. There was never any competition for Dr. Olson until I left his practice and opened my practice in Bismarck. Dr. Olson explained himself that he was the first Podiatrist to come to North Dakota in 26 years so there was no competition for Dr. Olson for several years and there were no Podiatrists so there was no one who could be disciplined. Its likely that if there was a complaint or a problem that it was settled in an informal manner and therefore there wouldn't be any records kept.

Despite the fact that there was a Board, there really was no organized Board. When Dr. Olson took over the Board he put his friends on the Board and that's the way it has stayed ever since then. Dr. Cherian Mathew told me recently that Dr. Mathew was the Board president from 1988-1992. Dr. Mathew also told me that he Dr. Olson talked a patient into suing him as well. This has been a common practice of Dr. Olson; to speak in a negative manner about the other Podiatrists in the state. In fact there are four current complaints pending against me at this time. Three of the four complaints involve patients who were seen by Dr. Olson when they submitted the complaint to the Podiatry Board. The fourth patient was being seen by a previous Board member, Manuel Harris, DPM of Jamestown. Dr. Olson and Dr. Harris have worked together on these type of problems before. I am a witness of one Board meeting when Dr. Harris submitted a complaint concerning Dr. Francisco Tello. I have also seen another patient who sent in a complaint against Dr. Tello that is just being reviewed now. This compliant would have been normally given very little attention however because Dr. Tello practices in Bismarck, there is little doubt that Dr. Tello will be disciplined for his treatment of this patient. The stories go on and on.

Dr. Olson testified that he has only been on the Podiatry Board for about 12 years since he started practicing here in 1977. He also testified that a Podiatrist has to be practicing for 2 years before they can be on the Board. I have included a copy of Dr. Olson's Curriculum Vitae with this rebuttal which lists the following:

Dr. Olson's own CV lists him as being on the Board in 1977

Dr. Olson states in his CV that he was Board president from 1981-1987

Dr. Cherian Mathew told me that the only time Dr. Olson was not on the Board was when Dr. Mathew was president of the board (1988-92). Therefore, I was incorrect when I stated that Dr. Olson was president of the Podiatry Board for 17 of the past 23 years. He was only president for 15 of the past 23 years and he has been on the Board for 19 of the past 23 years.

Dr. Olson was sued and found guilty for the death of a patient. A jury found that Dr. Olson was 41% responsible for the patient's death. Prior to the trial date, a complaint was sent to the Board by the patients daughter. However, the Podiatry Board took only 2 months to decide that Dr. Olson had done nothing wrong in regards to the treatment of this patient. Yet a nationally renown expert testified at the trial that Dr. Olson was directly responsible for the patient's death because of the medication that was prescribed.

Mr. Thune stated that there have been 25 complaints submitted by the Board about my treatment of patients. However, Mr. Thune conveniently forgot to mention that all but 2 or 3 three of these complaints were submitted by either orthopedic surgeons or patients who were seeing Board members (mainly Dr. Olson). It's absolutely impossible for someone to have so many complaints and at the same time for the complaints to be legitimate when they only come from same doctors. Of all of these complaints that the Board has taken seriously against me, the only patient who ever sued me was the one who was told to do so by Dr. Dahl of the Bone & Joint Center. None of these patients have filed for any type of disability and of the patients who had serious problems prior to coming to see me, to my knowledge no one has else has been able to improve their problem due to being so difficult to correct. It's impossible to have 25 serious complaints that are legitimate and not have most of them result in malpractice suits unless the attorneys can't find any reason to have damages.

These are critical points in my case because many of the medical people who have reviewed the documents have been shocked that the Board can proceed in such an aggressive manner when there have been no law suits and none of the patients have even been interviewed. My expert who reviewed my records saw right through all of the Board's actions and it took him very little time to see that there no problems with care of the patients and that the Board was out to get me.

Last February when I was disciplined, there were five patients involved. Two of the five healed completely and are doing well and extremely satisfied with the results of their treatment by me but the Board decided that I did something wrong anyway. The other three of the five patients were treated by me for complications as a result of the treatment from other doctors. Two of these three patients had been treated by Dr. Olson. There were no complaints against any of the other doctors that caused the problems to begin with. In some states there are laws that prevent complaints and malpractice law suits from being filed against a doctor who is trying to correct another doctors mistakes or problems. We couldn't even get the Board to consider that issue.

Respectfully submitted.

Brian Gale, DPM, FACFAS

2418 Coolidge Avenue

Bismarck, ND

701-255-3338