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Friday, June 1, 2001 Podiatrist's case against medical board reaches ND Supreme CourtJEFF HANSEL, Bismarck Tribune
The North Dakota Supreme Court heard arguments Thursday in a lawsuit that pits a Bismarck podiatrist against the North Dakota Board of Podiatric Medicine. Both sides say the case has left them near bankruptcy. The case turns on a key question: Was an agreement, which includes a statement that a disciplinary decision against Gale is binding and nonappealable, broken? If the agreement was broken, the court would then have to look at the board's findings and decide whether the board erred in disciplining Gale for his treatment of five patients. "The major issue is whether he waived his right to appeal. That's kind of an initial obstacle," said Gale's attorney, Jim Coles. The justices questioned Coles and Special Assistant Attorney General Gary Thune, who represented the board, on issues such as open meetings; administrative rules; an MRI X-ray obtained by the board that was not part of the records being reviewed; and what role the board's president, Dr. Aaron Olson, played. Two justices, Chief Justice Gerald VandeWalle and Justice Carol Kapsner, recused themselves without giving a reason, which, a court official said, is common. Justice William Neumann sat in for VandeWalle. Northwest Judicial District Court Judge William McLees and East Central Judicial District Judge Lawrence LeClair filled the two vacancies. Both attorneys in the case concentrated on whether Gale gave up his right to appeal the board's decision. If Gale retained his right to appeal, that would open the door for the justices to overturn a district court decision and reverse the discipline against Gale, Coles said after the hearing. During oral arguments, Thune said he believed that there is ample evidence to show Gale gave substandard care to the five patients in question. He was interrupted by Justice Mary Maring who said, "Are you admitting that this issue (of whether the board made the correct disciplinary decision) is before us, despite the stipulation (that the decision would be non-appealable)?" Thune said he was not admitting that, but trying to show that, even if the justices decide Gale retained his right to appeal, the evidence clearly shows that the board's disciplinary decision was appropriate. He also said, in respect to Gale's right to appeal, "I believe the district judge properly ruled that it had been waived." Such cases, court officials said Thursday, are typically decided by the Supreme Court within 60 to 90 days, but there is no time limit. (To see the supreme court briefs from both sides in the case, go to http://www.court.state.nd.us/Court/Calendar/20010032.HTM.) Health reporter Jeff Hansel may be reached at hansel@ndonline.com or 250-8255.
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