9. Margie Pulkrabek, Bone & Joint

10. Patty Greer,  Dr. Olson

11. Marbelle Putz,  Bone & Joint (Dr. Hart)

12. Karen Dryden,  Bone & Joint (Dr. Hart)

13. Gladys Wright,  Bone & Joint (Dr. Hart)

14. Shirley Sailer, Dr. Olson

Of the three new complaints that the Board also felt compelled to mention once again despite them not being in the record, two of these patients were seen by Dr. Olson and one of them was seen by Dr. Manny Harris. Dr. Harris is a former Board member and he is the only Board member who has been replaced from the Board in the past 10 years.

In the above list where Dr. Olson is listed the patient wrote or typed the actual complaint. However, it's fairly obvious from the records since Dr. Olson was treating each one of them that Dr. Olson made it clear to the patients that Dr. Olson felt Dr. Gale had done serious harm to them.

In regards to Dr. Johnson's complaint he is an orthopedic surgeon in Fargo and we will discuss his role in more detail shortly.

N.D. Admin. Code § 63-01-01-01(3) states that the Board is supposed to change one member each year and that each board member should only serve a four year term on the Board. However, for some reason the Board has not followed it's own statute. If it had Dr. Gale is quite certain that many of the complaints would not have been submitted let alone ending up in such harsh and uncalled for discipline by the Board. N.D. Admin. Code § 63-01-01-01(3), states that:

3. Board membership. The board consists of five members appointed by the governor. Four of the members are doctors of podiatric medicine. One member is a doctor of medicine. The board members annually elect by majority vote from the board membership the president, vice president, and secretary-treasurer and such other officers as are established by the board. Members of the board who are doctors of podiatric medicine shall serve four-year terms arranged so that one term expires each year.

At this time Dr. Olson has been the Board president for 15 out of the last 21 years. Dr. Deckert has been on the Board for 12 consecutive years. Dr. Hofsommer has been on the Board for 8 consecutive years. Dr. Moen has been on the Board for 7 consecutive years. Dr. Stone has been on the Board for 5 consecutive years.

In the affidavit signed by Dr. Hofsommer accompanying the Board's brief he states that, "Aaron Olson has removed himself from the room when complaints concerning Gale have been discussed at general meetings of the Board". Unfortunately, this is not true. In the minutes from the Board meeting in Jamestown on August 11,1999 (attached hereto), Dr. Hofsommer himself who is the Board's secretary made the following statement: "Mr. Norris wished to point out communication between Dr. Olson and Dr. Hofsommer. Dr. Hofsommer stated that the communication referenced Dr. Stone being a part of the process also and to include him in review of briefs. Mr. Thune suggested that he would be part of the review process and advised Dr. Olson to have no more communication."

At the August 4, 1995 meeting of the Board (attached hereto) the Board discussed some of the patients who are involved as part of the five complaints that are part of the record now. At that Board meeting there were five complaints reviewed against Dr. Olson. Of these five complaints one involved the same patient, Melvin Keator, who Dr. Gale was disciplined for in the Supreme Court decision below. Dr. Olson assisted Dr. Gale in the operation involving Mr. Keator. The Board in its Board meeting on November 8, 1995 (attached hereto) placed a letter of concern to Dr. Olson regarding more attentiveness to record keeping including initialing x-ray findings involving Mr. Keator and that was the sole "discipline" to Dr. Olson while Dr. Gale received two years probation concerning Mr. Keator. Another complaint against Dr. Olson included in the August 4, 1995 Board meeting involved a patient, Milo Hoisveen, in which the Board was to investigate as to the standard of care. On November 8, 1995, the Board dismissed the complaint involving Mr. Hoisveen since the Board considered the medical care to Mr. Hoisveen "to be appropriate." Yet on October 23, 1998, a jury (see attached Verdict) held that Dr. Olson was 41% negligent in causing the death of Milo Hoisveen. The Board essentially destroys Dr. Gale's professional life for five operations that did not cause any of the patients serious harm, yet Dr. Olson was 41% negligent in causing the death of a patient and he receives no discipline. There is something seriously wrong with this picture. This is a solid and convincing example that the Board is out to get Dr. Gale and to put him out of business. This is why the Court must take action to stop the Board from destroying Dr. Gale's professional life. Dr. Gale's opening brief sets forth that the Board does not have a factual basis for what it has done to Dr. Gale and why it is necessary that a stay be issued at this time.

Supreme Court Decision

In regards to the Supreme Court decision, Gale v. North Dakota Bd. of Podiatric Medicine, 562 N.W.2d 878 (N.D. 1997), there was only one patient complaint, submitted by a Bone and Joint doctor, Charles Dahl. This complaint was concerning the treatment of Melvin Keator that was considered to be a standard of care issue. The treating physicians who submitted the other two complaints, coincidently, once again doctors from the Bone and Joint Clinic stated during their depositions that they didn't see any problems with the treatment and healing of the patients who they sent in complaints about and the complaints were then withdrawn by the Board. Melvin Keator sued Dr. Gale for malpractice and that case was settled prior to any trial. In the current disciplinary proceeding none of the five patients have filed any malpractice case against Dr. Gale and the five complaints are primarily the complaints of The Bone and Joint Center, competitors of Dr. Gale. It is strange that none of the patients provided any statements or testimony against Dr. Gale, nor did any of the five patients provide any statements or testimony that they were harmed by Dr. Gale or that they thought Dr. Gale's medical treatment caused them to have injuries or problems that did not exist prior to Dr. Gale's treatment of them.

Missing Records From Geraldene Parsley

There were many pages of the records from Geraldene Parsley-Spath that were missing when the record was reviewed by Dr. Gale prior to the record being submitted to the Court. The record which Dr. Gale has had in his possession was given to Dr. Gale by Dr. Hofsommer several years ago. This patients records were present when Dr. Gale reviewed the record with Doug Bahr prior to it being sent to Dr. Galinski. A significant amount of the records (approximately 50 pages) were missing when Dr. Gale reviewed the record just before the record was sent to the Court. The records which were missing were important in that they had many accounts of this patient's injuries and treatments of her Achilles tendon.

A document that was also missing is a "Work Tolerance Assessment" dated May 15, 1993 which Dr. Stone referred to at the January 27, 2000 meeting. So Dr. Stone likely had this part of this patient's record, however for some reason it was not included in the record that was to be submitted to the Court. If there was one page in the record that would stand out to Dr. Gale as being the most important evidence of improper conduct by the Board, it would be the following information that is part of this patient's chart and is a documentation of a telephone call between Dr. Philip Johnson and a Dr. Merlin. The following is a quote from the March 21, 1994 memorandum prepared by Dr. Johnson (attached hereto) concerning Geraldine Parsley-Spath:

TELEPHONE CALL: I had a conversation with a Dr. Merlin who is, I believe, a hired physician by Health Mart down in Minneapolis concerning Geraldene Parlsey-Spath. Basically I discussed with him that Geraldene Parsley-Spath suffers from Chronic Achilles tendinitis with a fibrotic nodule present within the Achilles tendon. At the present course, we need to improve her eccentric strength of her gastrosoleus muscle group. When she can comprehend this and do this well, then possibly she could be started on her own home program as well. It will probably more than likely require further intervention if it does not improve with her conservative management, namely with an MRI scan and the possibility of surgical excision. He agreed with this and he will be sending me a letter stating this as well. (Emphasis added).

The Board insists that there was no evidence of this patient having a "fibrotic nodule". Yet in the records that they supplied as part of the record to Dr. Gale from the doctor who submitted the complaint against Dr. Gale there is clear evidence from Dr. Johnson that there was a fibrotic nodule and that Dr. Johnson was suggesting that he planned to do exactly what Dr. Gale later did when the patient came to him for treatment.

There are two other important documents from Dr. Johnson's records concerning this patient. One is the July 25, 1994 note (attached hereto) which is the first time Dr. Johnson sees Geraldene Parsley-Spath after her surgery performed by Dr. Gale. In this note Dr. Johnson states:

Geraldine and her husband come to the office. Since I have seen her last she had a podiatrist out in Bismarck explore her Achilles tendon and apparently removed a nodule. He placed her into a cast for two weeks and from what I gather didn't see her in follow up. She was then referred back to her primary care doctor who then ordered no physical therapy for her and told her that she would be able to return to work. At the present time she is complaining of pain in the area of the incisional area and pain with activities as well.

On physical examination she barely gets her foot up to neutral. On the opposite side she is up to about 7 degrees of dorsiflexion. The scar is a deloid type scar. It's very hypertrophic. She has swelling on the distal aspect of the Achilles tendon at its insertion around the area of the calcaneus as well. It's difficult for me to palpate any fibrotic nodules within the area. Her Achilles tendon is intact however as there is a negative Thompson test and as well there is no palpable defect in between the substance of the Achilles tendon. She is also now starting to get some secondary discomfort in the patellofemoral joint because she's walking around in an equinous position with her foot. She has a patellofemoral click and tenderness on the lateral facet of the patella but otherwise the knee examination is normal.

This is a difficult case. Personally the way I treat the resection of the fibrotic nodules within the Achilles tendon is we do not cast them. We put them in a functional AFO and let them work on range of motion right away.

In measuring her calf girth measurements 3 inches distal from the joint line she is one inch difference on the left as compared to the right and obviously she has diminished muscle mass and muscle strength in that leg.

At the present time she is not fit to go back to her work as an aid and stand on her feet for 8 hours at a time. At best she should just be placed into sedentary activity really with no walking, no stair climbing, no running type activities. She is going to need significant rehabilitation here. There is no question that she has not had proper rehabilitation to rehabilitate from her surgery and her injury and accordingly this needs to be done. We will focus our efforts on improving her strength and her flexibility of her leg and I'll review her back in six weeks. Until that time she is not to return to her former job.

The next time Dr. Johnson sees the patient is on October 11, 1994. Somehow, Geraldene Parsley-Spath must have made a remarkable recovery because the only comment Dr. Johnson has is "The ankle appears to be doing pretty well on the left but she does have a grade I inversion injury on the right." The only reason the patient went to see Dr. Johnson on October 11, 1994 was because she had sprained her right ankle. Dr. Gale performed the surgery on the patient's left ankle.

Then Dr. Johnson sees this patient again on January 30, 1995 (attached hereto) and states in his notes, "Her ankles bilaterally though has excellent range of motion and really no nodularity that I can appreciate on the right Achilles tendon and a well healed incision on the left." What Dr. Johnson is saying is that the ankle motion problem has been corrected by Dr. Gale's surgery and that the nodule is no longer present. Dr. Johnson has documented that Dr. Gale's surgery corrected the patient's problem. Dr. Johnson filed a complaint against Dr. Gale and yet Dr. Johnson documented in his chart that the patient needed to have the surgery that Dr. Gale performed and then later after the surgery was performed documents that the surgery was successful. How can Dr. Gale be disciplined for this surgery when the complaining doctor has agreed that the surgery was appropriate and corrected the patient's problem. Dr. Johnson never saw any of Dr. Gale's records of his treatment of Geraldene Parsley-Spath except for his operative report. Dr. Johnson was probably confused about the wording of the operative report or maybe he was upset because Dr. Gale performed surgery on "his" patient. In any event, Dr. Gale should not be disciplined for performing a surgery that took care of the patient's problem.

Galinski and Board Agreements

Dr. Gale and the Board both agreed that using an outside doctor would save time and money. The Board wasn't doing Dr. Gale any "favors" by agreeing to proceed in this manner. In fact it was Doug Bahr from the attorney general's office who suggested the idea of finding an independent doctor to review the records instead of having a hearing officer review them. In regards to the Board agreeing not to use Dr. Galinski's report and opinion, this position was presented to the Board by Dr. Gale and the Board agreed that Dr. Galinski did not do what he was asked to do and that his report was unfair. Dr. Gale told the Board that Dr. Galinski's report mainly considered and discussed a failure to keep records which was not even an issue in the complaints against Dr. Gale. At the August 11, 1999 Board meeting, Dr. Gale provided proof that his medical records and documentation had been evaluated by independent sources and found to be acceptable. Dr. Gale presented independent impartial evaluations of his work in the form of two audits by Blue Cross/ Blue Shield and Dr. Kilwein's review of 90 cases Dr. Gale performed at St. Alexius Medical Center.

Because Dr. Gale demonstrated to the satisfaction of the Board that Dr. Galinski's report was severely flawed and untrue, the Board agreed to review the records in place of Dr. Galinski's decision. If the Board would have given Dr. Gale any other choices about who was going to review the record instead of Dr. Galinski,  Dr. Gale would have gladly taken anyone who he thought would be fair and impartial. The Board didn't give Dr. Gale any other options. His choices were to take Dr. Galinski's findings which would have resulted in severe discipline or to hope that the Board would review the record and be fair and impartial. Dr. Gale signed the agreement for Dr. Galinski to perform the review of the records in good faith and Dr. Gale was shocked at the harshness of Dr. Galinski's report. Dr. Gale feels that he was forced into the agreement with the Board due to the above circumstances.

The point now is that the Board did not review the records or they ignored the records or both. In addition, the Board considered documents that were not in the record and the Board did not read or understand the briefs or the report of the two experts and the Board did not limit itself to the five complaints, rather the Board raised new issues which violated Dr. Gale's due process rights. There are just too many obvious mistakes that the Board made which can justify the findings of fact and the conclusions that the Board came to.

The findings of fact are appealable because the Board breached the contract with Dr. Gale by not reviewing the records, ignoring the facts in the records, by considering matters outside the record, not limiting themselves to the issues raised in the five complaints, by not determining the standard of care from the two experts and by raising new issues after the record was closed. The agreement has not been followed by the Board and the findings of fact and conclusions are in violation of the agreement between the parties and are contrary to the facts and state law and therefore the entire process has been tainted and should be void.

Section 9-07-03, N.D.C.C. states that "A contract must be so interpreted as to give effect to the mutual intention of the parties as it existed at the time of contracting so far as the same is ascertainable and lawful. For the purpose of ascertaining the intention of the parties to a contract, if otherwise doubtful, the rules given in this chapter are to be applied." The court in National Bank of Harvey v. Intern. Harvester, 421 N.W.2d 799, 803 (1988) states:

The primary goal of a court is to ascertain the mutual intentions of the contracting parties. (Citations omitted) A contract may be explained by reference to the circumstances under which it was made. § 9-07-12, N.D.C.C. In addition, the parties conduct in the course of performance after the contract's formation can help determine the meaning of ambiguous language. (Citations omitted) Of particular assistance in addressing the ambiguity of this agreement is Section 9-07-14, N.D.C.C.:

If the terms of a promise in any respect are ambiguous or uncertain, it must be interpreted in the sense in which the promisor believed at the time of making it that the promisee understood it.

In the present case the parties knew and understood that the Board was to review the record, review the briefs and opinions of the experts and to render a decision based upon the first amended complaint. Here the Board did not base its decision upon the first amended complaint, failed to consider the record, considered matters outside the record and failed to set forth the minimum standard of conduct that Dr. Gale was alleged to have violated and raised new issues after the record was closed. The Board's conduct breached the contract with Dr. Gale and therefore the Court may consider the facts to determine if the Board has violated the contract by failing to base its decision upon the first amended complaint, if the Board failed to consider the record, if the Board considered matters outside the record, if the Board failed to set forth the minimum standard of conduct that Dr. Gale was alleged to have violated and if the Board raised new issues after the record was closed.

Discipline is Not Appropriate

In regards to the discipline, Dr. Gale would like to make it perfectly clear to the Court that he is objecting to the Board's discipline in addition to objecting to the process by which the Board arrived at the discipline. The Board's process of arriving at the discipline leaves no doubt that the discipline is excessive and harsh. The fact that the Board limits Dr. Gale's surgery and then expects him to somehow be able to afford to pay for extensive training makes it impossible for Dr. Gale to be able to complete the training. The costs involved with defending himself have been enormous. The discipline can not be justified even if Dr. Gale really had some problems with these five patients. None of these five patients have applied for any type of partial or complete disability and none of them have made any malpractice claims against Dr. Gale. Dr. Gale tried to help several of these patients who had unsuccessful treatment by other doctors. Some of these patients did well and Dr. Gale's treatment of them was very successful. How can anyone justify disciplining a doctor when the treatment of the patient was successful. In regards to the patients who continued to have problems after they left Dr. Gale, no evidence has been provided that anyone else has been able to help those patients. In addition Dr. Gale believes that it is likely that if they would have stayed with Dr. Gale and allowed him to treat them that he would have been successful in helping them as well.

The Board states in it's brief that Dr. Gale can complete the training any time and that this doesn't cause irreparable damage. If Dr. Gale can't complete or even start the training the Board has mandated, Dr. Gale can't have the restrictions on his license lifted and therefore there is irreparable damage. There already has been irreparable damage done now even if the Court allows Dr. Gale's stay of the Board's discipline. Dr. Gale has been under tremendous financial hardship and stress over the past several years. He has barely been able to keep his clinic open and now the situation has become desperately close to not being able to continue practicing due to the above problems. If the Court gives Dr. Gale a Stay of the Board's decision and Dr. Gale goes on to win his appeal, it will likely take 3-5 years for Dr. Gale to resolve his extensive debt problem. That would only be possible if the Board stopped taking action against Dr. Gale and if they decided not to appeal the decision to the Supreme Court.

Dr. Gale had no choice about filing bankruptcy. He was unable to continue paying for his personal bills and in no way has enough resources to pay the Board's debt incurred by them for their legal fees in pursuing Dr. Gale in this disciplinary proceeding. Dr. Gale has barely managed to keep his clinic open. He does not have the funds to pay for the Board's discipline and maintain his clinic. The Board has limited Dr. Gale's surgical cases which in turn has severely limited his income which limits his ability to pay his legal fees let alone shoulder the burden of the Board's legal fees and the costs of completing expensive and time consuming training that has been required by the Board. The Board has gone out of it's way to be so specific in it's training required of Dr. Gale that it is simply impossible for Dr. Gale to even consider being able to complete the training. There are many questions that Dr. Gale has presented to the Board about this training in regards to the specifics of it and the Board has not responded. The Board has no desire for Dr. Gale to even attempt to complete the training that they have outlined. There has not been any correspondence to Dr. Gale by the Board in regards to his questions that he submitted to the Board immediately after the discipline was set forth. Without answers to Dr. Gale's questions, Dr. Gale can not even begin to know how to go about trying to obtain the training to satisfy the Board. The Board has made it clear that they do not expect Dr. Gale to be able to begin, let alone complete the training that they have required him to do.

The Board has tried to make the filing of bankruptcy a central issue in Dr. Gale's attempt to obtain a stay of the Board's findings, conclusions and order for discipline, however the true central issue is how Dr. Olson and the Board has spent the past 7 years attacking Dr. Gale and destroying his life.

Dr. Gale is asking the Court to see the terrible injustice that has occurred in this case against Dr. Gale and to put an end the 7 year ongoing battle that has occurred between Dr. Gale and the Board.

Financial loss at Dr. Gale's clinic due to board actions

As set out in Dr. Gale's attached affidavit, Dr. Gale's January 2000 charges were $. January is always the slowest month of the year. February charges were $. March charges were $. So there was a minimum of $ in lost charges between the lost surgery cases and the bad publicity. If we just look at the surgery charges for procedures that Dr. Gale is not allowed to do now, in January there was approximately $ and that's just the surgical charge for the procedure. There's another $ or so that would be in addition to the $that is lost for follow up appointments for the surgery patients when they need x-rays and casting performed. This amounts to about $ of lost charges from not being able to do surgery. This is just for one month, multiply this by 12 and you come up with $. This results in lost income and creates irreparable harm to Dr. Gale.

There were approximately 15 patients who were actually scheduled in February and March for surgery. The charges for these patients alone would have been about $, and in addition Dr. Gale would have normally had several other patients who would have called to have their surgery. Typically Dr. Gale averages about 15-20 surgical cases each month and he has only performed one hospital surgery since the board's discipline took effect in February.

Standard of Care Responsibility

It is not Dr. Gale's responsibility to "bring up" the issue of standard of care. It is the Board's responsibility to set forth in the findings of fact the minimum standard of care that the Board alleges that Dr. Gale has not complied with. This is a statutory requirement placed upon the Board's by section 43-05-16(1)(k), N.D.C.C. which 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). The Board in its findings of fact never made a finding as to the minimum standard of conduct for each of the five operations nor did the Board set forth the basis for the minimum standard of care. This is a fatal error by the Board and is a basis for setting aside the Board's findings, conclusion and order.

Dr. Gale's expert (Dr. Expert) did point out that Dr. Gale's treatment of all five patients was within the standard of care. Dr. Gale's expert set forth authoritative literature that supported his claims about Dr. Gale's treatment of the five patients as being within the standard of care. The Board never even attempted to set forth any reason why Dr. Expert's opinion concerning the standard of care was not appropriate or what it determined was the minimum standard of care for each of the five surgeries performed by Dr. Gale. The Board's findings and conclusions are void of any reference to evidence that would establish the appropriate standard of care in this case.

The Board's expert, Dr. McGlamry accepted Dr. Gale as one of the authors in the text edited by Dr. McGlamry himself. This text was used extensively by Dr. Gale's expert to show that the literature supports the treatment which Dr. Gale performed for these patients. The standard of care was discussed by both experts. The Board's expert and the Board itself however, as discussed in Dr. Gale's previous brief, did not ever set forth what the minimal standard of care is for each of the five cases. The Board's findings and conclusions did not even attempt to define the minimum standard of care for each of the five cases that the Board considered.

Not only did the Board not bother to consider the statute or the first amended complaint but the Board didn't think it was necessary or important to interview any of the patients involved or Dr. Gale for that matter. It was made clear to Dr. Gale that he would not be allowed to have any interaction with the Board members. The only time Dr. Gale was allowed to speak to the Board was at the Jamestown meeting on August 11, 1999 and even then there was never any discussion allowed to take place between the Board members and Dr. Gale to answer any questions the Board members had or resolve any obvious misunderstandings or concerns that the Board members had about the cases. Dr. Gale believes that the Board could not defend their actions and that's the reason why they refused to engage in any discussion about the issues with Dr. Gale. Dr. Gale finds this very unusual because the Board has a duty to be fair and impartial.

At the Board meeting in Bismarck on January 12, 2000, Dr. Hofsommer was discussing the information relating to Geraldene Parsley. In the transcription of this meeting which is part of the record, Dr. Hofsommer states on page 31 lines 6 through 11 that: "I feel, therefore, that -- I don't know. If we can't use the medical records, I see as throwing that one out. You know, obviously I see some problems there, but as far as actually (inaudible), I don't know if I - - well, I guess it was careless, would be as close as I could get." The tape of this Board meeting discloses that where the first -- is in the quote that Dr. Hofsommer laughs. Dr. Hofsommer's laugh relates to the Board's intended use of medical records to base discipline on Dr. Gale which also recognized that Dr. Galinski's reference to medical records was the basis that the Board agreed that Dr. Galinski's decision was outside the scope of the first amended complaint and so the Board wanted to sure to avoid any reference to medical records as a basis for discipline against Dr. Gale.

This conduct clearly shows that the Board members had made the decision discipline Dr. Gale before they figured out how to justify the discipline.

CONCLUSION

Based on the above argument and based on the prior brief of Dr. Gale the Court has a sufficient basis in which to grant Dr. Gale's request for a stay of the Board's order of discipline until a decision on the merits of the appeal has been made by the Court.

Respectfully submitted this 7th day of April, 2000.

____________________________________

James L. Norris - ID # 04138
Attorney for Appellant
James L. Norris, P.C.
P.O. Box 978
Bismarck, ND 58502-0978
(701) 255-2310

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