Podiatrist says he's target of board

JEFF HANSEL, Bismarck Tribune
Sunday, April 16, 2000

Doctors Aaron Olson and Brian Gale, both podiatrists, liked each other well enough in 1992 to work together.

At the time, Olson was hoping Gale would take over some of his duties so Olson could spend more time with his family and eventually retire. In other words, Olson expected Gale to be his successor and take over his business.

"It could have been an extremely good symbiotic relationship, and it should have been," Olson said.
But the working relationship soured.

Since Gale left Olson's practice in 1993 and opened his own, Olson has sued Gale and won, and the North Dakota Board of Podiatric Medicine has disciplined Gale, who lost a state Supreme Court case that alleged the board was biased in its investigation.

Olson and Gale are again on opposite sides of the courtroom.

Gale now says the board is -- and has been for years --trying to run him out of town by disciplining him.

Gale said the fight with the board and also with its president -- who happens to have been Olson for almost a decade -- has left him in financial ruin.

"I feel that the Board's decision is wrong and its decision is based upon improper influence and improper consideration by the Board, and upon the Board's desire to put me out of business and ruin my career," Gale said in a court document.

Olson, who maintains that he is not involved in the disciplinary investigation, said: "This (the podiatry board) is not a 'good old boys club.' We're here to protect the public and the board is going to do that, whether I'm on the board or not."

Last week, Gale was in district court asking a judge to delay his punishment until his case goes to court. Judge Burt Riskedahl is to hear the appeal, but no date has been set for the court hearing.

If Riskedahl grants the stay, Gale will be able to continue providing foot care to patients. If he denies the request, Gale will have to wait until his case maneuvers the court system. In the meantime, Gale's practice is limited, meaning he cannot perform foot or ankle surgery. He can,
however, continue to see patients for diagnosis and treatment not requiring surgery.

In 1997, the board, which is responsible for licensing the state's podiatrists, began considering the current complaint against Gale involving 14 patients.

In January of this year, the board published its report on the discipline from five of those 14 cases. Gale would have to take retraining and stop performing surgery, while paying $30,000 in court and investigative costs.

The board says patients would be endangered if Gale continued to perform surgery, because of "his
unwillingness and inability to provide proper surgical care and treatment."

The board said Gale failed to obtain informed consent, to correctly assess diagnostic information, to recognize complications and to disclose the "severance of (a) nerve."

In addition to the complicated bevy of details, what makes the case unusual is the small number of well-known players.

North Dakota has only 22 practicing licensed podiatrists -- physicians who specialize in the care and treatment of foot and ankle problems. Four of them sit on the licensing and disciplining board, along with a fifth member, a medical doctor whose position is required by state law.

Gale's action is not simply an appeal of the board's discipline. It takes his fight to a new level, alleging an intentional effort by the board to smear his reputation and ruin his ability to practice podiatric medicine.

"These guys (were) setting me up from the beginning. It's unethical, of course," Gale said.

He said Olson and the board have sought to ruin him, even though he served an elected position as president of the podiatrists' state association. He is also trying to show that Olson has used his position as president of the board to influence its decisions.

Court documents say: "The President of the Board, Dr. Aaron Olson, was not permitted to be an independent reviewer (in the current case) due to the on-going hostility and animosity between Dr. Olson and Dr. Gale." But, the documents say, "Dr. Olson was present and communicated with other Board members at (an) August 11, 1999, Board meeting," at which Gale's case was
discussed.

"Olson sat there for two hours, while they were talking about me, throughout the whole meeting," Gale said. But Olson said he is not involved in the case and recused himself from the investigation.

"What he's trying to do, I believe, is justify errors in judgment or standard of care," Olson said. "I feel bad that he has chosen to make everyone else responsible. Unfortunately, it makes the entire profession look bad. I think there is serious damage."

Gale makes the following allegations, basing them on evidence, he said, that indicates that the board and Olson are both working against him -- the board by not treating him fairly and Olson by communicating with board members about the case -- including:

Inconsistency in discipline.
Gale said the board's lack of action against Olson shows its bias.

The board dismissed one case, court documents say, "Yet on October 23, 1998, a jury É held that Dr. Olson was 41 percent negligent in causing the death of (a patient). 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 percent negligent in causing the death of a patient and he receives no discipline. É This is a solid and convincing example that the
Board is out to get Dr. Gale and to put him out of business."

In another case, Gale links the board's action with an attempt to eliminate him as Olson's competition.

"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)," court papers say.

Olson said, "Had (a patient) filed a complaint against me the board would have investigated that appropriately, whether I was on the board or not." He said the board has
investigated him five times over complaints.

But Gary Thune, the board's lawyer, said those complaints were all brought against Olson by Gale's lawyer at the time, William Zuger, and that Gale is simply trying to blame everyone except himself.

Gale said, "If somebody looks at this and sees that there are five complaints against Aaron Olson, and then they look at this and see that all five complaints got thrown out, that makes someone suspicious."

But Thune said regulations require the board to investigate all written complaints, which it did.
The board tampered with the record.

Gale said two board members improperly obtained an X-ray that was not part of the record and used it in the case against him.
But 10 days after making the preliminary 14 findings of discipline against Gale, the board withdrew two, including the one about the X-ray.

The board's change of the final record is further evidence, Gale said, of its inappropriate activity, because the change shows the information should never have been included in the first place.

But Thune said that the board realized the X-ray shouldn't have been included and corrected its error. Because the X-ray isn't in the record any more, it shouldn't be an issue, he said.
The board ignored evidence of informed consent.
Gale claims that each of the five patients signed informed consent documents and were advised of potential risks. Gale's treatment in 90 patient surgeries was also reviewed by an independent physician, commissioned by St. Alexius Medical Center, who found no inappropriate patient care.

Thune stood by the board's contention. But 10 days after the preliminary findings were first filed, the board amended them from "there was no informed consent É" to "there was a lack of adequate informed consent "
The board ignored that the complaints are coming from competitors.

Almost all of the 14 original complaints were filed either by the Bone and Joint Center or Olson's office. Gale alleges Olson's involvement in his case is obvious. In one case, Gale says the only reason a complaint was filed was that Olson encouraged a patient to do so.

"Dr. Aaron Olson originally over-corrected the deformity during the first surgery for this patient. If anyone is to blame for the patient's problems in this case, it is clearly Dr. Olson and not Dr. Gale. Dr. Gale was attempting to correct Dr. Olson's mistake," court documents allege.

Gale's lawyer, James Norris, said the idea that Gale is a danger to the public is simply a ploy to keep him from obtaining a stay, noting that the board allowed Gale to continue practicing for years before imposing discipline. If the board knew all that time that Gale was a danger, it has not followed its directive to protect public safety, he said.

But Thune pointed out that Gale settled two medical malpractice cases involving improper performance of surgery, that the board is investigating three additional complaints recently filed and that five trained medical professionals all came to the same conclusion; that Gale needs more training before he does more surgery. The board said more complaints have been filed against Gale than the combined total of complaints filed against all other licensed North Dakota podiatrists in the history of the board. Norris, however, said that Gale settled the malpractice cases because he could not afford to fight them.

Norris, in court documents seeking the stay for Gale said, "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."

Both sides want board abolished

People on both sides of a contentious disciplinary investigation want the Legislature to dissolve the North Dakota Board of Podiatric Medicine and place its duties with the Board of Medical Examiners.

"There are only about thirty podiatrists in the state, and everybody either ends up having grudges against or really biased opinions in favor (of the ones being investigated)," said William Zuger, a Bismarck lawyer who represented Dr. Brian Gale until 1996, when Zuger retired.

"Basically, it boils down to: People cannot recognize their own biases," Zuger said. "É these guys, I think, really do believe that Brian (Gale) is a bad person, and they just can't look at it from an unbiased viewpoint." All five board members have served at least five years, each being reappointed by Gov. Ed Schafer. Gale's current case began in 1997.

"I've always thought the best thing to do would be to get rid of the podiatric board and put it all under the medical board," Zuger said in a letter to Schafer.

Carter Wood, a spokesman for the governor, said the situation merits review because of the low number of podiatrists in the state and the potential for financial shortcomings due to legal costs. He said the governor supports consolidation of smaller boards.

Board president Aaron Olson said he, too, would welcome a change in the law, because the board's finances have been drained. "I think that would be a real good thing, because then this whole business with Brian Gale would never have occurred," Olson said. "Our board is bankrupt. We've had to beg and borrow (financially) from the state attorney general's office" to finance the investigation.

Olson said small boards should be combined into one larger one, including veterinarians, dentists, optometrists, medical doctors, podiatrists and other professionals who handle patient responsibilities or pharmaceuticals.

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Podiatrist says he's target of board

Both sides want board abolished