Brian Gale, DPM Errors in Board Decision Jan 27, 00

Findings of Fact

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

What Dr. Stone actually said was that no intra-operative x-rays were taken and this was his reasoning for the findings of fact in #1. However, the fact is that intra-operative x-rays were taken and there are reports by the radiologist from Q & R Clinic who read it. See copy of the two reports. Dr. Gale also stated in his operative report from the surgery that x-rays were taken during the surgery to assess the positioning. The radiology report and Dr. Gale’s operative report both concur that there was proper positioning of the surgery. The key words here are “the assessment of anatomical position”. This refers to intra-operative x-rays. Dr. Stone specifically stated at the 1/12/2000 meeting which was taped and transcribed that “my recollection is that there is nothing in the record or report that indicated these ways and or means were assessed intra-operatively and that I would think if they had been addressed, and documented that this potential complication may have been averted intra-operatively.” This was pointed out in the record and Gary Thune then allowed Dr. Gale to submit a letter to the Board to specifically make it easy for the Board to see these reports that were missed by Dr. Stone. However Dr. Stone refused to change his mind about the presence or absence of the x-rays which were taken intra-operatively. Not only were the reports part of the record but copies of the actual x-rays that were taken intra-operatively were part of the record. How could something so obvious be completely missed by Dr. Stone? The Board members either did not review this information or refused to acknowledge the existence of the reports and x-rays that are plainly part of the record. The original amended complaint doesn’t say anything about intra-operative x-rays. The Board’s own expert never brought up this issue. The Board then should not be allowed to use this as an issue since it isn’t in the amended complaint and can’t be found anywhere in the records. If this issue was never brought up until this time how could Dr. Gale and his expert fairly deal with this issue? This is the pattern of the Board. They have changed the issues after the experts have submitted their reports concerning the amended complaint leaving no way for the new issues brought up by the Board to be dealt with fairly.

2.Subsequent to the first operation, the limited subtalar joint motion does not support a calcaneal osteotomy as the proper procedure. This is not in the Board’s amended complaint.

The complaint says, “Dr. Gale performed a calcaneal osteotomy in March, 1994, resulting in residual varus of the foot and pain in the subtalar joint”. The finding of facts is saying that due to the limited motion the procedure was a bad choice. The amended complaint says that the procedure which was performed didn’t work and caused pain. These are two very different statements and therefore the Board has changed the complaint after the record was closed. There is a big difference between someone saying that a procedure was the wrong choice versus the procedure which was performed did not correct the problem and caused pain. However, both the findings of fact and the amended complaint are incorrect according to the record. Once again, one only needs to look at the Board’s own expert who says on page 6 of his report 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.” So according to the Board’s own expert, Dr. Gale did correct this problem and therefore this part of the complaint is without merit and has been disproved by the Board’s own expert.

As far as the correct choice of procedure, Dr. Expert, who was Dr.Gale’s expert states in his brief on page 19, #2 that he has performed “hundred’s of ankle fusions and that a calcaneal osteotomy is an accepted procedure in this case”. He also gives a reference to the literature (page 19, #4, reference #14) that supports the fact that calcaneal osteotomy is an acceptable procedure which is often used and that it can increase motion at the subtalar joint.

As far as the patient’s pain that is mentioned in the amended complaint, there is no mention of this anywhere in the record. The patient obviously had pain from the original injury and severe arthritis that had developed prior to ever seeing Dr. Gale. This is in the record and is the reason the patient was seeking medical attention in the first place. The fact that the pain continued after the surgery was performed for the ankle fusion and the calcaneal osteotomy does not mean that Dr. Gale caused the pain. The pain 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.

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

See the discussion above which explains that the record clearly proves that both the Board’s expert and Dr. Gale’s expert agree that it did in fact correct the problem. The amended complaint states, “as a result of the procedures, the ankle was in a position of varus”. The Board members on 1/12/00 at the Board meeting all agreed that this is an acceptable complication. Their expert, Dr. Expert, in his report that was done for the Board, on page 6 states that, “it should be acknowledged that even the best of surgeons can err in the positioning fusion of the ankle. If the Board and it’s own expert both agree that this is an acceptable complication how can the Board then discipline Dr. Gale for it?

Geraldine Parsley:

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

The only clinical findings that were mentioned was the measurement of ankle range of motion. It is in the original record as well as Dr. Gale’s letter to the Board after the 1/12/2000 meeting that 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. The Board members also acknowledge that they had no problem with the procedure being correct for this patient’s situation. It was pointed out in Dr. Gale’s brief by Dr. Expert that the person who sent in the complaint (Philip Johnson, MD) agreed that the surgery was necessary and that the correct surgery was performed. 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 her surgery performed by Dr. Gale. Dr. Johnson stated in his records which are part of the record that the patient’s problem was resolved and she no longer had any disability which was present when he was treating her prior to her surgery. All this was not only in the record but it was in Dr. Gale’s letter to the Board.

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 it not being part of the record, so they could review it. Dr. Hofsommer gave some excuse for this, essentially stating that he made a mistake and shouldn’t have read it, while Dr. Stone did not accept any responsibility for trying to include the MRI when it was clearly not part of the record. There were no other “diagnostic” tests performed so the Board must be referring to the MRI. The MRI is not part of the record so they can not use this information. The briefs from the two experts never refer to the MRI and if the Board wanted to add this MRI to the record, Dr. Gale would have to be given a chance to respond to any claims that they would make about the MRI. At the Board meeting on 1/12/2000, Dr. Hofsommer and Dr. Stone both stated that they brought the MRI to radiologists to have them look at the MRI after the record had been closed. At the meeting on 1/27/2000, it was acknowledged by the Board’s attorney as well as Dr. Hofsommer but not Dr. Stone that the MRI should not 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. Dr. Hofsommer forgot about his previous statement he made at the 1/12/2000 meeting, and at subsequently at the 1/27/2000 meeting of the Board he stated that he was looking at another patient’s MRI in his office and “suggested” that he thought it was Geraldine Parsley’s MRI and it was part of the record for her case that he was supposed to be reviewing. At the 1/27/2000 meeting, Dr. Stone didn’t mention anything at all about why he was reviewing this MRI with a radiologist after the record was closed. However, this was the reason that Dr. Stone and the other Board members agreed that there was a problem with this case. For the above reasons this finding of fact is incorrect and should be deleted. This is also proof that the Board has tampered with the record and has not been acting in good faith.

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.

This the most blatant error of all the findings of fact. The operative report for this patient was not dictated on April 22, 1997. It was dictated on May 5, 1994. This is the same day the patient had her surgery performed by Dr. Gale. Dr. Gale has no idea how the Board came up with the 1997 date. There is not only an operative report dated 5/5/94 but also there is the date at the end of the dictation which indicates the specific date the dictation was performed and the date it was transcribed. There is nothing in the amended complaint or anywhere in the record that refers to anything about the operative report being dictated ten days prior to the surgery being performed. There is nothing in the amended complaint or the Board’s brief which refers to the note in Dr. Gale’s chart dated 4/22/94. The document that was dictated ten days prior to the patient’s surgery is when 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. The date of that office visit was 4/22/94. Unfortunately, Dr. Moen who is a family practice medical doctor, does not perform surgery and was more than likely confused about the purpose of this office visit. This dictation does not state anywhere in it that the surgery was performed on 4/22/94. There are documents in the record other than just the operative report that support the fact that the surgery was performed on 5/2/94 not 4/22/94 and definitely not 4/22/97.

There are several documents in the record that show that the patient’s surgery was performed on 5/2/94 and this date is consistent with the date that the operative report was dictated. The way the pre- and post-operative assessment is dictated is a standard format. In most instances the pre and post operative assessment are known and are the same. If they change at the time of surgery then it gets changed on the official operative report that gets dictated. There is no rule that states the assumed surgery is exactly what has to be performed and the only thing that can be performed. In fact it’s just the opposite that’s true. There is a document in the record that indicates that if it’s in the best interest of the patient the surgical procedure can and should be modified in what ever manner is necessary. This is part of a series of documents established by the American College of Foot & Ankle Surgeons which is the authority on foot and ankle surgery in the United States. Dr. Gale is a Fellow of the ACFAS. In any event this is clearly a medical records issue and was never an issue in the past with the Board. Dr. Gale has never been given a chance to fully explain this or any other misunderstanding by the Board. The other Board members who are podiatrists surely understand the meaning of this note dated 4/22/94 and should have clarified this issue for Dr. Moen, but they didn’t.

The record in this 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 and the patient’s problem that she went to Drs. Johnson, Fanous and Gale for was resolved completely after her surgery by Dr. Gale. There was no complaint from the patient and the doctor who submitted the complaint was simply confused by the wording of Dr. Gale’s medical records. The amended complaint is clearly in reference to “failing to properly treat and care for Geraldine Parsley”, yet it only discusses a medical records problem as the concern. The Board members all have agreed that they didn’t have a problem with the procedure and that she did heal well because this is clearly in the records of the doctor who sent in the complaint. Medical records are not an issue with any of the complaints. The complaints that the Board has said Dr. Gale violated are sections g, k and u. Medical records are discussed under section n. and has not ever been an issue in any of these complaints. If it had been an issue, it would have been discussed in the record by both of the experts. Medical records were never an issue so this issue can not be found anywhere in the records and there fore is not grounds for disciplinary action. Even if Dr. Gale had not accurately documented the range of motion and even if the MRI had not been read accurately, there is no argument by the Board or it’s expert about whether the patient needed the surgery and that she healed well without any problems. The fact is that the Board has tried to change the complaint and has not presented any evidence to support the reasons for any of the issues they have brought up. Yet the Board has simply refused to look at the record or recognize that the record clearly and simply explains that there was nothing wrong with this case from beginning to end.

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.

The amended complaint stated, “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. There are several places in the record that shows the informed consent was obtained and given to the patient. The one which explains the procedure most clearly as well as gives the patient the list of possible complications is the consent form from Dr. Gale’s clinic which was signed by the patient 12/8/94. In this consent it states “1.I hereby request Dr. Gale to perform upon Margie Pulkrabek the following operation or procedure

1. RELEASE OF LIGAMENT AT BOTTOM OF FOOT (PLANTAR FASCIA) &. RELEASE OF ENTRAPPED NERVE IN ANKLE AND ARCH (TIBIAL NERVE) and if any unforeseen condition arises in the course of the operation calling in his judgment for procedures in addition to and/or different from those now contemplated, I further request him to do whatever he deems advisable.

2. The nature and purpose of the operation, possible alternative methods of treatment, the risks involved, and the possibility of complications have been explained to my satisfaction (chance of thick or painful scar, prolonged pain, prolonged swelling, post-operative infection, over or under correction, or a chance of further surgery may be necessary).

3. I have also been informed that there are other risks involved related to the performance of any surgical procedure. I realize that the practice of medicine and surgery is not an exact science and I acknowledge that no guarantees have been made to me as far as the outcome of the operation or procedure.

4. I, Margie Pulkrabek, have read and understand this document and all my questions regarding my procedure/surgery have been answered to my satisfaction.

5. Dated this 8 day of December, 1994.

This was witnessed by Dr. Gale’s nurse. This form was not developed by Dr. Gale. This is a standard consent form that is used by surgeons in many different areas. There is not any way to be more complete. The hospital has it’s own consent form as well. Dr. Gale also notes in his dictation on 12/8/94 the same date the patient signed the above described consent, that “The patient understands there have been no guarantees given or implied. The patient also understands that thee is a chance of thick or painful scar, recurrent heel pain, recurrent ankle pain or arch pain. The patient understands there is a chance of over or under correction, and further surgery, post-operative infection, or anesthetic reaction.” In Dr. Gale’s pre-operative history and physical which he dictated on 12/14/94, he states the above as well as “recurrence of heel pain or of neurologic symptoms or both”. The patient went to Dr. Gale with the understanding that Dr. Gale would be performing the surgery on her that she needed and therefore by her being seen by Dr. Gale she was indicating that she wanted to have the surgery performed. This informed consent is above and beyond what most doctors have in their record.

7.  The surgery was performed prematurely, given the absence of changes in the nerve conduction study.

Dr. Gale made it very clear in the record in several instances that an abnormal nerve conduction is not necessary to perform surgery on a patient with this condition. The Board’s own expert agreed with this. This was also well documented in the brief by Dr. Gale’s expert. The surgery was indicated because extensive non-surgical (conservative care) was performed by Dr. Fanous who referred the patient to Dr. Gale to have the surgery performed. Everything that is mentioned in regards to conservative that can or should be performed was done by Dr. Fanous. The Board seems to think that Dr. Gale has to perform conservative care before he is “allowed” to legally perform surgery on a patient. It was also put in the record that the option to perform surgery is not done with a prerequisite of conservative care. According to the ACFAS, the decision to perform surgery is based upon the severity of the problem and is between the surgeon and the patient. The reason for this policy on the SOC is that there are many possible instances where conservative care is not in the best interest of the patient. For example, if the patient as had severe pain for a year and has been treated by one doctor and the patient needs and wants to have surgery, it should be done. Not doing surgery in this case, would be potentially a breech in the SOC. That’s why Dr. Fanous who could not perform this type of surgery, referred the patient to Dr. Gale who he knew could do the surgery. Surgery doesn’t become an option after a required amount of non surgical care. The Board never produced any documentation that indicated that a nerve conduction test has to be or even should have changes for surgery to be performed in a patient with this type of problem. In fact, in the evaluation by the neurologist who saw Margie Pulkrabek at Dr. Gale’s request, he indicated that she was having a lot of pain and that there were nerve changes on the EMG that he performed. This is part of the record as Dr. Ragland’s evaluation and is extensively discussed in Dr. Gale’s brief. The is no place in the literature where it can found that surgery should not be performed if the nerve conduction test is normal. In fact it is very specific about this, it says in the record (Dr. Gale’s brief page 6, last two sentences) where there is a direct quote from the literature and from the Board’s own expert’s text, that “In fact the Board’s expert Dr. Expert states in his book on page 1114, that “The diagnosis of tarsal tunnel syndrome is based on historical interview and physical findings. The distribution of sensorimotor alteration is the key to accurate diagnosis.” He goes on to say… one should not discount the clinical diagnosis of tarsal tunnel syndrome in light of negative electrodiagnostic findings.” In layman’s terms this means that tarsal tunnel syndrome can be diagnosed by the amount and location of the pain and the nerve conduction test is often normal. In this case the EMG is abnormal and indicates tarsal tunnel syndrome. The patient was having severe pain, refused further conservative care and insisted on and needed to have surgery for her problem.

8. Post-operatively, Dr. Gale failed to disclose the severing of the medical calcaneal nerve, which generated the resulting numbness experienced by the patient.

(The name of the nerve is the “medial” not the “medical”. ) This is not in the amended complaint. The amended complaint says, “The procedure was not properly performed…”, not that Dr. Gale “failed to disclose”. There is no where in the record where there is any proof that Dr. Gale severed any nerves. Dr. Gale’s brief points out that the patient did remarkably well after her surgery. When she supposedly did develop some problems she did not contact Dr. Gale so there is no way he could have helped her. All we have that “suggests” that there may be a problem with this nerve is one office visit from Dr. Bopp, who later tried to withdraw the complaint but was not allowed to do so by the Board. There are ways that the diagnosis could have been made to see if in fact this nerve really was “severed”, however this wasn’t done. There was never any treatment of the problem so it has to be assumed that it wasn’t anything the patient wanted to have treated. Dr. Gale’s brief describes several ways this problem can successfully be treated if it actually did occur. Sometimes just a medication or an injection can successfully resolve the type of numbness and pain which can occur after this type of procedure. Since nothing was done to find out for sure what the problem was and since the patient didn’t need any treatment it’s impossible to say that Dr. Gale did sever this nerve and that it is something that warrants a complaint or disciplinary action. It is in the record that numbness is sometimes the intended result to relieve the severe pain some patients have with this condition. In fact this nerve is intentionally cut in some cases to relieve the pain. A neurologist could have been consulted to identify if this was the problem or to treat the patient but that doesn’t seem to have been necessary. The surgical consent form the patient signed covers this as a possible complication. It specifically states, “prolonged pain” as a possible complication. The patient was doing very well when she decided not to come back to see Dr. Gale any longer. She only had a little numbness and no pain. There is no way that Dr. Gale could have foreseen that one year later she was going to have some problems and there is no way that Dr. Gale could force the patient to come back to him for treatment.

Shirley Sailer:

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 acknowledgement of the procedural problems.

The osteotomy did correct the problem but unfortunately it reoccurred. The Board was given information explaining that this is a very difficult problem to correct. There is no acknowledgement of the procedural problems because there weren’t any problems intra-operatively. There is no place in the amended complaint that mentions anything about the “intra-operative reporting”. This “intra-operative reporting” pertains to medical records. Medical records has a specific place in the disciplinary code and is letter “n.”. This has never been a part of any of the complaints against Dr. Gale.

In Dr. Gale’s brief a reference from the literature explained that over 50% of the attempts at correction of this difficult problem are unsuccessful. Does that mean that the doctors who were unable to correct this problem for their patients should be disciplined? Dr. Gale’s expert and the Board’s expert both agreed that this type of problem is extremely difficult to correct. Dr. Gale has advanced training in the foot and ankle. Patients come to him from all over North Dakota and the surrounding states for him to treat them. Most of these patients have been to several doctors in an attempt to have their problems corrected but no one can or is willing to try to help them. Dr. Gale tells all of his patients in this type of situation that he will do what he can but there can be no guarantees given about the final results. That is just what it states in the consent form that this patient signed. It specifically states in the informed consent that the patient signed, “There is a chance of … over or under correction.” This patient signed the same type of consent form as Margie Pulkabek and the same format that all five patients signed. This is what informed consent is for. It is common knowledge to patients and doctors that not all surgery will turn out perfect. That’s the reason for consent forms. So the patient knows there are certain risks.

There is nothing in original complaint from the patient that says, “failing to recognize” anything “intra-operatively”. This is the only patient who actually sent in a complaint. The reason she sent in the complaint was because Dr. Olson falsified the record and obviously coerced the patient into submitting a complaint. By reading the note in the patient’s chart by Dr. Olson dated 1/12/98, and then the next time she was seen on 1/26/98, it’s obvious that he did his best to get the patient upset at Dr. Gale and then led her into sending a complaint in about him. First Dr. Olson makes his record of the patient’s problem appear as if there were no hope for her and then two weeks later she is “at least 100% better”. How could anyone who has reviewed the record not see what Dr. Olson was doing. The patient stated in her original complaint that Dr. Gale never took any x-rays. Dr. Gale took several x-rays to assess the patient’s healing. He also explained to the patient that he did not completely correct the Hallux Varus problem. The patient’s problem was still corrected better when she left Dr. Gale’s care than when she first came to Dr. Gale. The amended complaint states, “elevation of the first metatarsal head”. However, the Board’s expert disagrees with this and says there isn’t elevation present.

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.

Dr. Gale is willing to admit that the problem could and should have been corrected better, however this is not a reason for him to be disciplined. Dr. Gale has stated above that there was informed consent, that this is a very difficult surgery for the best surgeons to perform, and that he stated in his records that it was not completely corrected. The Board has refused to acknowledge that Dr. Gale did point it out to the patient and document that he did not completely correct the Hallux Varus deformity.

Glady Wright:

11.  The total joint implant orthroplasty performed by Dr. Gale in 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.

The joint replacement was not done incorrectly. There was good alignment of the joint during the surgery. There were no problems during the surgery. The x-rays taken by Dr. Gale after the surgery and subsequently do reveal that one part of the implant is slightly tilted, but this is not near the joint where the alignment is excellent. This is not where the patient was having her discomfort. The amended complaint states that “the phalangeal component of the implant was in a plantarflexed position after the surgery …”. Dr. Gale agrees that the implant was slightly plantarflexed (angled downward), but this is not a reason for the patient to be having pain and this was not the area where she was having a problem. Dr. Gale did also recognize this and documented it in this patient’s chart. Dr. Gale explained to the Board that he didn’t think this was of any consequence and was a very minor point. This was not where the patient was having any pain so the patient did not have to be told about it which is what Dr. Gale stated in his x-ray report. There is nothing in the amended complaint that states anything about Dr. Gale’s intra-operative care of the patient.

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. Gales’ care.

Dr. Gale did recognize and document in the chart that the phalangeal component was slightly plantarflexed. This finding of fact refers to the medical records and this is not part of the amended complaint. In Dr. Gale’s brief it refers to this patient’s own evaluation of her problem when she went for a second opinion to Dr. Hart, who is an orthopedic surgeon and is the person who sent in the complaint.
There was no actual complaint by Dr. Hart. There was a cover letter with a copy of the records from this patient, Margie Pulkrabek and Patricia Lautenschlager. The cover letter was from the Bone & Joint Clinic’s office manager and simply said they were concerned about standard of care issues and wanted the Board to review the records. Essentially they were saying, look at these records and see what you can find wrong with them; after the doctors who saw the patients added several “leading” statements to the records of each of these patients. Dr. Hart had Gladys Wright complete a patient questionnaire the first time she went to see him. In this questionnaire which is part of the record, Gladys Wright indicates that “there is no limitation of any recreational or daily activity”, “I am able to walk more than 6 blocks”, “I have some difficulty with uneven ground, stairs inclines or ladders (vs. severe difficulty)”, “I look normal when I walk”, “I am mildly displeased with the appearance of my feet and ankles”, “I usually wear conventional comfort shoewear without an orthotics or insert”, “the foot and ankle problem interferes mildly with (my) lifestyle and ability to do what (I) want to do”. These are not statements that a patient would make if she was having a serious foot problem. The patient was actually doing fairly well when she left Dr. Gale, and if she would have continued to allow him to treat her she would have likely improved. She was placed in a temporary strapping the last time she saw Dr. Gale and was very comfortable. This was a simple pad that was applied to the bottom of the patient’s foot to take some of the pressure off of the “ball of her foot” and this gave her a lot of relief. This pad was not anywhere near the area of the implant which was slightly tilted. Because she had relief from the temporary padding, more than likely only needed to be fitted with a custom arch support for continued relief. The last note in Dr. Gale’s chart for the patient on 11/26/96, indicates that the “cut out pad definitely helped”. Dr. Gale sent a request to the patient’s insurance company to receive pre-approval for custom arch supports (orthotics). A letter was sent to Dr. Gale dated 12/10/96 indicating that she was approved for the orthotics. This is also in the record. The tilt in the implant did not effect the joint alignment whatsoever.

In Dr. Hart’s chart for this patient his initial evaluation also indicates that the patient is doing well and not having much of a problem with her foot. His “Foot and Ankle Clinical Rating System (examination)” rates the patient’s range of motion at this joint as “moderate restriction (30-74 degrees)” which is much better than it was before the surgery when she had essentially no motion at all. The joint stability was rated by Dr. Hart as “stable” and the most important evaluation was the alignment which was the highest rating possible “Good, hallux aligned.” Dr. Hart later in his chart for Gladys Wright changes his mind and decides that the patient is having more problems than he originally stated. Dr. Hart went on to perform surgery on this patient to remove the joint replacement which Dr. Gale put in her foot and then fused the joint to make it permanently stiff.

In the Board’s brief, their expert sharply criticizes Dr. Hart for the poor results he achieves with the surgery he performed on this patient. So Dr. Olson performed the original surgery on this patient that was unsuccessful and Dr. Hart performed the third surgery on her which the Board’s expert says demonstrated a “lack of competence or judgment”. Dr. Hart said the post-operative x-rays from the surgery he performed look “excellent” however the Board’s expert states that the plate and all the screws he put in are loose and the positioning of the joint is wrong.

Yet somehow Dr. Gale is the only person who is at fault despite the fact that the patient was really doing at least fairly well when she decided on her own to leave his care. Once again, in this case the patient signed the same consent as the other patients. The Board agrees that this is a difficult surgery and Dr. Gale believes that the surgery really went well although he admits as Dr. Hofsommer stated at one of the Board meetings that, “the alignment of the implant was less than perfect”.

Does that mean that all of Dr. Gale’s surgery have to be perfect or he should be disciplined? The last thing that’s important to mention here again is the informed consent. Why can the informed consent only work against Dr. Gale and not in his defense? The record clearly shows that the patient was told that she may need “further surgery including a different joint replacement or a joint fusion” (which is what Dr. Hart attempted to do) along with other possible complications.