| 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, |
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vs. |
) | Dr. Gale’s Brief on Appeal |
| ) | of the Board’s Administrative Decision | |
| North Dakota Board of Podiatric | ) | |
| Medicine, | ) | |
| ) | ||
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Appellee. |
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This is Dr. Gale’s brief in support of his appeal of the North Dakota Board of Podiatric Medicine’s (Board) administrative decision against Dr. Gale dated February 2, 2000. Dr. Gale hereby incorporates Tab Exhibits 1 through 36 that were attached to Dr. Gale’s brief in support of his motion for stay dated March 8, 2000 as part of this brief as if attached. [The reason for incorporating these Tab Exhibits here is to avoid duplication and also to avoid making the record any larger than it already is.] Standard for Appeal to the District Court The standard for appeal to the district court is set out in section 28-32-19, N.D.C.C. as follows: A judge of the district court must review an appeal from the determination of an administrative agency based only on the record filed with the court. After a hearing, the filing of briefs, or other disposition of the matter as the judge may reasonably require, the court must affirm the order of the agency unless it shall find that any of the following are present:
This Court in its Memorandum Opinion dated April 25, 2000, page 2, stated that section 28- 32-19 gives considerable deference to the findings of the "agency". This Court then cites to Gale v. North Dakota Bd. of Podiatric Medicine, 1997 ND 83, 562 N.W.2d 878 as an example of the extent to which the North Dakota Supreme Court has gone to uphold the rulings of administrative agencies. It is important to point out that in Gale v. North Dakota Bd. of Podiatric Medicine the Supreme Court at ¶10 or page 881 cites to section 28-32-19 as the standard of review of an administrative agency and at page 882 the Supreme Court states, "Our review of the Board’s findings is limited to whether a reasoning mind reasonably could have determined the findings were proven by the weight of the evidence from the entire record." It is also critical to remember that Gale v. North Dakota Bd. of Podiatric Medicine involved an administrative hearing where there was a hearing officer presiding who heard testimony and considered documentary evidence whereas in the present case there was no hearing officer and there was no testimony. Rather there were only the four members of the Board purportedly read the briefs of the Board and of Dr. Gale and who allegedly reviewed documentary evidence. Further there is no language in Gale v. North Dakota Board of Podiatric Medicine which states that the ND Supreme Court gave any deference to the finding of the agency. Rather the Supreme Court at ¶39 or page 887 and again at ¶44 or page 887 bases its holding on the grounds that a reasoning mind could have arrived at the same decision that the Board came to. In Re Juran and Moody, Inc., 2000 ND 136, ¶24, 613 N.W.2d 503, 509 involved an administrative hearing wherein a hearing officer was appointed to hear the case. The North Dakota Supreme Court stated that "Here, deference to the ALJ’s factual findings is warranted. The ALJ had the opportunity to observe the witnesses and the ‘responsibility to assess the credibility of witnesses and resolve conflicts in the evidence.’" (Citation omitted) Additionally, the ND Supreme Court in In Re Juran and Moody, Inc., at ¶25 and page 510 stated, "Regarding review of an agency’s legal conclusions, we have indicated an agency ‘has a reasonable range of informed discretion in the interpretation and application of its own rules.’" Further at ¶27 the court held: We accordingly hold where an agency requests the OAH designate an ALJ to issue a final decision, judicial review of the ALJ’s factual findings should involve the standard of review used for agency decisions, but the ALJ’s legal conclusions must be reviewed in the same manner as legal conclusions generally, without special deference to the ALJ. Since the case now before the Court involves a situation where there was neither an ALJ nor a Board had the opportunity to observe witnesses and determine their credibility and resolve conflicts in the evidence, there then is no basis for this Court to provide the Board’s decision with any deference. Accordingly, the Court must apply instead the test of whether a reasoning mind reasonably could have determined that the findings were proven by the weight of the evidence in the record. The court in Volesky v. North Dakota Game and Fish Dept., 1997 ND 140, ¶7, 566 N.W.2d 812, 815 stated: Under N.D.C.C. § 28-32-19, our review involves a three-step process to decide whether the Board’s findings of fact are supported by a preponderance of the evidence, its conclusions of law are supported by its findings of fact and its decision is supported by its conclusions of law and is in accordance with the law. (Citation omitted). In reviewing the Board’s findings of fact, we do not make independent findings or substitute our judgment for that of the Board; instead, we decide whether a reasoning mind could have reasonably decided the Board’s factual conclusions are supported by the weight of the evidence. The court in Rudolph v. Dept. of Transp. Director, 539 N.W.2d 63, 66 (N.D. 1995) held that "In determining whether an agency’s findings of fact are supported by a preponderance of the evidence, the standard of review is whether a reasoning mind could reasonably have determined the factual conclusions were supported by the weight of the evidence." The court in Kuklock v. N.D. Workers’ Comp. Bureau, 492 N.W.2d 572, 574-575 (N.D. 1992) held that:
Dr. Gale’s Basis for Appeal and Statement of the Issues 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 . . .". Rather the reviewing Board members did the following: (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. Vogler), (d) considered matters that were outside the scope of the First Amended Complaint, (e) failed to set forth and define what is the standard of practice and how is such standard of practice determined, (f) imposed discipline that has made it financially impossible for Dr. Gale to pay in order to retain his license in Podiatric Medicine and to continue 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 three times that amount of time (i.e., more than nine months) to complete with such retraining financially unachievable for Dr. Gale due to his limited financial condition. (Dr. Gale has already secured additional loans and Dr. Gale has already expended the greater part of his retirement account in order to pay for the retraining required by the Board, the necessary legal fees to defend against the Board’s allegations and for living expenses necessary to support his family). Procedural History On June 12, 1995, Dr. Philip Q. Johnson of Fargo sent a letter (Tab 2) to Dr. Hofsommer of the Board concerning a patient, Geraldene Parsley, who Dr. Gale had operated on for a torn Achilles tendon and Dr. Johnson thought that perhaps the surgery was unnecessary. On December 20, 1995, the CEO of the Bone & Joint Center, P.C. sent a letter (Tab 3) to Gary R. Thune as counsel for the Board asking that four cases involving Dr. Gale be looked into because the doctors at the Bone & Joint Center thought there may be departures from the proper standards of care. These four cases involved: (1) Corrine High Elk, (2) Gwyn Herman, (3) Patricia Lautenschlager and (4) Margie Pulkrabek. On August 23, 1997, the Board filed a complaint (Tab 4) against Dr. Gale alleging that he violated the provisions of section 43-05-16(1)(g), (k) and (u), N.D.C.C. by failing to properly treat and care for (1) Patricia J. Laughtenschlager, (2) Gwyn Herman, (3) Corrine N. High Elk, (4) Patty Greer, (5) Margie A. Pulkrabek, (6) Geraldene Parsley, and (7) Cheryl Wetzstein. On April 20, 1998, the Board filed a First Amended Complaint (Tab 5) which alleged that Dr. Gale violated the provisions of section 43-05-16(1)(g), (k) and (u), N.D.C.C. against (1) Patricia J. Lautenschlager, (2) Gwyn Herman, (3) Patty Greer, (4) Margie A. Pulkrabek, (5) Geraldene Parsley, (6) Cheryl Wetzstein, (7) Gladys Wright and (8) Shirley Sailer. On June 22, 1998, the Board and Dr. Gale entered into a Settlement Agreement (Tab 6) wherein Dr. Gale waived his right to an administrative hearing since the Board and Dr. Gale both wanted to resolve this matter without an administrative hearing due to the voluminous medical information that a hearing officer would have difficulty understanding and also in order to save money. In this Settlement Agreement, the parties agreed to have an independent expert reviewer (selected by the parties) who would make factual findings regarding whether Dr. Gale failed to properly treat and care for the patients and the parties agreed that the independent reviewer’s factual findings would be binding on both the Board and Dr. Gale and not appealable. The parties agreed to have Dr. Adolph W. Galinski, Associate Dean, Clinical Sciences, Scholl College of Podiatric Medicine, Chicago, Illinois serve as the independent reviewer. On May 10, 1999, the Board filed their opening brief with Dr. Galinski. The Board hired Dr. E. Dalton McGlamry as its expert witness. In the Board’s brief (dated May 10, 1999), the Board withdrew its complaints against Dr. Gale as relates to patients (1)Cheryl Wetzstein, (2)Gwyn Herman and (3) Patty Greer. As a result of withdrawing these three complaints there were five complaints left, namely: (1) Patricia Lautenschlager, (2) Geraldene Parsley, (3) Margie Pulkrabek, (4) Shirley Sailer, and (5) Gladys Wright. On June 22, 1999, Dr. Gale filed his brief with Dr. Galinski. Dr. Gale hired Dr. Harold Vogler as his expert witness. On July 9, 1999, the Board filed its reply brief with Dr. Galinski. 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. However, in his written opinion, Dr. Galinski discussed in great 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) since Dr. Galinski’s opinion discussed in detail Dr. Gale’s medical record keeping in all five cases and 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’s 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 accepting Dr. Galinski’s decision or of allowing the Board members to review all the records and briefs. This was the only 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. Notably, however, Dr. Olson was present at this August 11, 1999 Board meeting and Dr. Olson continued to communicate with other Board members during the 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." (Emphasis added) 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 failed to ever refer to or even discuss the first amended complaint at this Board meeting. Further the Board also failed to ever discuss what the standard of care actually was for each of the five complaints or to define what the standard of care was and whether they had ever given Dr. Gale proper notice of the issues that they were considering as part of their disciplinary decision. 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; fortunately, Dr. Gale had a tape recorder with him and Dr. Gale recorded the entire Board meeting. The Board allowed neither Dr. Gale nor the undersigned to speak at this meeting even though there were errors and misstatements being made by the Board. The Board’s attorney, Mr. Thune, did then allow Dr. Gale to provide him with a prepared written presentation which Mr. Thune then mailed to the four Board members sometime after the Board meeting. After this Board meeting on January 12, 2000, Mr. Thune prepared Recommended Findings, Conclusions and Order. Mr. Thune mailed to the Board his recommended findings along with, Dr. Gale’s written statement and his medical records which were critical for the Board to review; especially, in light of some of the misstatements 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 failed to even consider or chose to simply ignore.
On January 27, 2000, the four Board members had another meeting whereby they considered Mr. Thune’s Recommended Findings, Conclusions and Order; they also stated at this January 27, 2000 meeting that they had considered Dr. Gale’s written summary of the errors that 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 prior to the January 27, 2000 Board meeting. On February 2, 2000, the Board served upon the undersigned Findings, Conclusions and Order Imposing Discipline (Tab 1). Standard of Care It is critical here at the outset to point out for the Court a major error in the Board’s findings of fact, conclusions and order. The Board completely failed to set forth the necessary standard of care in its findings, conclusions and order. This failure alone is sufficient grounds in and of itself to warrant reversal of the Board’s decision. 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 North Dakota statute requires the Board to set forth what is the "...the minimal standards of acceptable and prevailing podiatric medical practice." The minimal standard is something less than the accepted standard of care (e.g., much like a grade of C which has a range of 70 to 79 with the minimum grade of 70 also a C). 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. In addition, 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 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 the appellant, Dr. Gale, has four years of surgical residency training in foot and ankle surgery. How is it possible for any of these 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. Thus by necessity, the Board would have 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. McGlamry, and Dr. Gale hired an expert witness, Dr. Vogler. Dr. McGlamry discusses the standard of care in his opinion and Dr. McGlamry’s opinion is contained as part of the Board’s brief filed with the independent reviewer (May 10, 1999). Dr. Vogler discusses at length the standard of care in his opinion. Significantly, Dr. Vogler also had the opportunity to review Dr. McGlamry’s opinion and to then respond to Dr. McGlamry’s opinion that Dr. Gale’s surgeries were below the standard of care. In doing so, Dr. Vogler also referred to and set forth for the Board professional literature in the field of podiatry which clearly discounted Dr. McGlamry’s statements about the standard of care and to further point-out for the Board where Dr. McGlamry had the facts confused. In addition, Dr. Vogler even referenced in his expert report a specific textbook that was actually authored by Dr. McGlamry which in fact refutes Dr. McGlamry’s own conclusion that Dr. Gale’s conduct was below the accepted standard of care. Dr. Vogler’s entire opinion and verifiable, supportive professional literature is included in the brief submitted earlier (June 22, 1999) by Dr. Gale to the independent reviewer (Dr. Galinski). In contrast, the Board’s expert’s opinion (i.e., Dr. McGlamry’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. McGlamry for at least twenty-five years (See: Attached affidavit of Dr. Olson) (Tab 9 ). Dr. Gale respectfully submits that this relationship between Dr. Olson and Dr. McGlamry taints Dr. McGlamry’s entire opinion throughout and thus renders Dr. McGlamry’s opinion unfair at best and at worst, flagrantly bias. Of critical importance here, is that Dr. Vogler’s conclusion on page 23 of his opinion states, "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. McGlamry in any way criticizing this conclusion by Dr. Vogler concerning the proper standard of care. The Board’s reply brief does disagree with Dr. Vogler’s conclusions; yet, there is not a single reference in the Board’s reply brief as to any comment from its own expert (Dr. McGlamry) ever disagreeing with Dr. Vogler’s opinion as to the proper standard of care. Also absent from the Board’s reply is any reference whatsoever to supportive professional literature in the field of podiatry that is in any way consistent with the Board’s decision.
The Board failed to set forth in its findings, conclusions and order imposing discipline that it even considered either Dr. McGlamry’s or Dr. Vogler’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. This Board has never defined the standard of care or the minimum standard of care in any statute or administrative ruling; as such, the proper standard of care must be determined by expert testimony. Notably, 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 finders of fact in the present case were not qualified to determine what the standard of care is or what the minimum standard of care is for the five surgeries performed by Dr. Gale, since none of the four Board members have a similar practice or a similar education to that of Dr. Gale in performing the foot and ankle surgeries that are involved in the five complaints. 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 in the complaints that 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 that expert’s opinion and the First Amended Complaint, since the expert’s opinion must relate only to the allegations contained within the First Amended Complaint. The Board’s expert, Dr. McGlamry, in his opinion makes numerous and detailed references to Dr. Gale’s medical records, an issue that is not even in the First Amended Complaint. Dr. McGlamry considering an issue not even in the First Amended Complaint plus Dr. McGlamry’s 25 year friendship with Dr. Olson, President of the Board, (who has been prohibited from participating in this case) should essentially disqualify Dr. McGlamry’s opinion. On the other hand, Dr. Vogler 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. Vogler’s analysis of each patient’s case is always done from the perspective of the First Amended Complaint and Dr. Vogler decidedly reviewed the records and authoritative professional 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 Brief of Dr. Brian Gale (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. Consequently, since the Board has failed in this burden, the Board’s decision against Dr. Gale should be reversed.
As set forth above, the court in Kuklock v. N.D. Workers’ Comp. Bureau, supra, and the cases cited therein held that when there is inconsistent medical evidence, the Bureau could not rely upon evidence favorable to its position without attempting to clarify the inconsistencies. In addition, the Bureau was required to explain why it relied upon medical evidence supporting a denial of benefits rather than upon conflicting medical evidence that supports an award of benefits. Accordingly, in the present case, the Board cannot ignore the opinion evidence of Dr. Vogler that Dr. Gale’s performance on the five patients listed in the Complaint is clearly within the standard of care for a podiatrist without the Board attempting to clarify its inconsistent decision that Dr. Gale’s conduct falls below the minimal standards of acceptable and prevailing podiatric medical practice. The Board’s failure to even address the standard of care issue is basis alone to reverse the decision of the Board. 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 thereby constituting 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 set forth above, the denial of due process to Dr. Gale permeates the Board’s entire decision. In this brief (section entitled Analyses of the Five Complaints), Dr. Gale sets forth for the Court how in each of the five complaints the Board raises new issues after the record was closed; such conduct by the Board 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. Furthermore that the due process clauses of both 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). Slagle v. Wyoming State Bd. of Nursing, 954 P.2d 979, 982-983 (Wyo. 1998) was a case where the Board of Nursing filed a complaint against Slagle and then the Board of Nursing rendered its decision considering (1) an alleged violation of a cease and desist order and (2) allegations that Slagle made false statements on her 1993 application, neither of which were in the complaint filed by the Board. The Wyoming Supreme Court held that the Board failed to give Slagle notice that the Board would consider these two alleged violations as a basis for discipline and such failure to give Slagle notice was unconstitutional. The Wyoming Supreme Court reversed the Board’s decision to discipline Slagle. The Slagle case is similar to the case now before the Court since in the present case the Board considered new issues after the record was closed thereby denying Dr. Gale the opportunity to provide evidence, including an expert opinion on these new issues; and as such, the Board has violated Dr. Gale’s constitutional rights. 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 raised many new issues after the record was closed thereby denying Dr. Gale notice of these issues, denying Dr. Gale an opportunity to address these new issues and denying Dr. Gale’s expert witness the opportunity to address these new issues. Consistent with the Devous and Slagle courts, 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 his right of due process by raising new issues after the record was closed; accordingly, the Board’s decision against Dr. Gale is unconstitutional and should be reversed. Analyses of the Five Complaints Patricia Lautenschlager:
The Board’s Findings of Fact dated February 2, 2000 as relates to Patricia Lautenschlager states as follows:
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 to. 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." (Emphasis added) 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. Gales’ 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. As set forth in Kuklock v. N.D. Workers’ Comp. Bureau, supra, the Board must explain inconsistent medical evidence in rendering its opinion and yet, the Board completely failed to comment on evidence that is clearly in the record and which renders its opinion not only inconsistent but totally incorrect. 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. Vogler had already completed his opinion did not allow Dr. Gale and his expert (Dr. Vogler) to fairly deal with this new issue. As set forth in Devous and Slagle, raising a new issue without notice to Dr. Gale is unconstitutional 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 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 and 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. McGlamry) 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. The weight of the evidence supports Dr. Gale’s position that he did nothing wrong, thus the Board’s finding of fact is not supported by a preponderance of the evidence and should be reversed. As pertains to Dr. Gale’s procedure being the correct choice of procedure, Dr. Vogler (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. Vogler 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. Vogler’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. Again, the preponderance of the evidence does not support the Board’s decision. 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. The preponderance of the evidence does not support the Board’s decision. 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] The discussion set forth 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. McGlamry, 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. Vogler 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 not supported by a preponderance of the evidence 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-operatively findings, both clinical and diagnostic, before the 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 the surgical procedure was implemented." Dr. Vogler 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. Vogler, 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. McGlamry (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. McGlamry 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. Vogler even commented on page 11 of his opinion about Dr. McGlamry’s inconsistent statements wherein Dr. Vogler 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 Board’s findings are not supported by a preponderance of the evidence. 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. Vogler, 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. Again, the Board’s findings are not supported by a preponderance of the evidence. 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. As the court in Slagle held where no notice was given to Slagle on two matters which the Nursing Board considered in arriving at their decision to discipline Slagle, such failure of notice was unconstitutional and required the Board’s decision to be reversed. Such is also the case here since the Board’s conduct in considering evidence not in the record and basing a decision on such evidence without giving Dr. Gale an opportunity to produce evidence on such evidence is unconstitutional and should be reversed. 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 a preponderance of the evidence 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, similar in nature to the Devous and Slagle cases which held that such conduct was a violation of their constitutional rights. The record in the Parsley case clearly shows that this patient had a tight Achilles tendon. It also shows that the Board and the doctor who submitted the complaint agree that the surgery was appropriate and that the procedure healed well. Further the patient’s problem, for which she went to see both Drs. Johnson and Fanous and then Dr. Gale, was completely resolved after her surgery by Dr. Gale. There was never any complaint from the patient, and the doctor who submitted the complaint against Dr. Gale was simply confused by the wording in Dr. Gale’s medical records. The Board members all agreed at the January 12, 2000 Board meeting that it did not have a problem with the procedure and that the patient (Geraldene Parsley) did heal well; and furthermore, this is clearly in the records of the doctor who sent in the complaint against Dr. Gale. Dr. Gale’s medical records are not an issue with this patient. Additionally, the first amended complaint for this patient states that the Board is claiming that Dr. Gale violated sections g, k and u. Medical record violations are contained in subsection "n" and were not an issue with this patient and most importantly, subsection "n" was never an issue in the first amended complaint. If Dr. Gale’s records had been made an issue, such records would have been considered by both of the expert witnesses. Medical records were never an issue in the first amended complaint. Medical records cannot be grounds for disciplinary action against Dr. Gale. There is no argument by the Board or it’s expert but that the patient needed the surgery and that she healed well without any problems. The fact is that once again the Board is attempting to raise a new issue after the record is closed. The Board has simply refused to look at the record and has refused to recognize that the record clearly and simply explains that Dr. Gale did nothing wrong with this patient from beginning to end. The Board’s findings of fact against Dr. Gale is not supported by a preponderance of the evidence and should be reversed. The Board’s raising a new issue is similar to Devous and Slagle and is unconstitutional conduct requiring reversal of the Board’s decision. Margie Pulkrabek: The Board’s first amended complaint dated April 20, 1998 against Dr. Gale as relates to Margie Pulkrabek states that Dr. Gale violated the provisions of section 43-05-16(1)(g), (k) and (u), N.D.C.C. by: d. failing to properly treat and care for Margie A. Pulkrabek. Dr. Gale performed a tarsal tunnel release with plantar fascia release on the right foot in December 1994. Ms. Pulkrabek was left with persisting numbness and pain in the right foot following the surgery. A tarsal tunnel release was not indicated. The procedure was not properly performed in that the medial calcaneal nerve was cut. The Board’s Findings of Fact dated February 2, 2000 as relates to Margie Pulkrabek states as follows: 6. Dr. Gale failed to provide the patient with adequate information as to the risks (i.e. numbness, etc.), benefits and alternatives, prior to performing the surgical procedures. There was a lack of adequate informed consent obtained in this case. 7. The surgery was performed prematurely, given the absence of changes in the nerve conduction study. 8. Post-operatively, Dr. Gale failed to disclose the severing of the medical calcaneal nerve, which generated the resulting numbness experienced by the patient.
Shirley Sailer: The Board’s first amended complaint dated April 20, 1998 against Dr. Gale as relates to Shirley Sailer states that Dr. Gale violated the provisions of section 43-05-16(1)(g), (k) and (u), N.D.C.C. by: h. failing to properly treat and care for Shirley Sailer. Dr. Gale attempted to repair the hallux varus (iatrogenic) of the right foot following a bunion correction in 1990 by another podiatrist. Dr. Gale’s June 1996 surgery on the right foot involved soft tissue balance and osteotomy of the first metatarsal phalangeal joint. The pre-operation varus of the hallux was approximately 15 degrees; the final position of approximately 20 degree varus with elevation of the first metatarsal head. Dr. Gale failed to recognize shifting of osteotomy from the earlier x-rays. There was also further loosening of the screw and proximal migration of the capital fragment. The Board’s Findings of Fact dated February 2, 2000 as relates to Shirley Sailer states as follows: 9. In an attempt to surgically correct a hallux varus of the patient’s right foot, Dr. Gale failed to intra-operatively recognize that the osteotomy was not correcting the problem. The intra-operative reporting contains no acknowledgment of the procedural problems. 10. Post-operatively, Dr. Gale continued his failure to recognize that the hallux varus had not been corrected, in spite of the fact that his post-operative x-ray indicated the initial surgery was inadequate to correct that problem.
Gladys Wright: The Board’s first amended complaint dated April 20, 1998 against Dr. Gale as relates to Gladys Wright states that Dr. Gale violated the provisions of section 43-05-16(1)(g), (k) and (u), N.D.C.C. by: g. failing to properly treat and care for Gladys Wright. Dr. Gale performed a total joint implant of the right first metatarsal phalangeal joint in July 1996. The phalangeal component of the implant was in a plantarflexed position after surgery and there was loosening of the distal component. Joint congruity also failed to be kept after surgery. Dr. Gale failed to diagnose loosening of the implant. The Board’s Findings of Fact dated February 2, 2000 as relates to Gladys Wright states as follows: 11. The total joint implant arthroplasty performed by Dr. Gale on this patient’s right first metatarsal phalangeal joint was procedurally done incorrectly. While this is a difficult procedure, the failure of Dr. Gale to recognize the improper placement of the implant, intra-operatively, is a departure from the minimal standard of acceptable and prevailing podiatric medical practice. 12. Of even greater concern is Dr. Gale’s failure, post-operatively, to recognize and identify the incorrect positioning of this implant in the medical records, prior to this patient leaving Dr. Gale’s care.
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