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Wednesday, March 21, 2001

Bill would allow
podiatric board to
borrow from bank

JEFF HANSEL, Bismarck Tribune


Court costs reaching $50,000, and another $20,000 in
outstanding debt, have led the North Dakota Board of
Podiatric Medicine, and most of the state's podiatrists who
specialize in treating foot and ankle problems, to ask the
state Legislature for help. 

The debts have accumulated while the board defended its
disciplinary findings against Dr. Brian Gale, a Bismarck
podiatrist. 

Legislators are looking for a way to protect patients from
malpractice, while protecting the integrity of the board in
its oversight of the state's 21 podiatrists. At the same time,
they are seeking a way for the board to pay the legal fees
from court cases that have reached the North Dakota
Supreme Court once, and are headed there again. 

Legislative testimony last week indicated that House Bill
1377 would set precedent for other small boards that
oversee professions other than podiatry, such as
audiology, occupational therapy and cosmetology. The bill
would allow the podiatric board to declare an emergency
and apply to borrow from the Bank of North Dakota. It
would also allow the bank to decide whether to loan
money to the board. 

The podiatric board owes so much money now that the
only way to avoid violating the state Century Code, which
does not allow it to incur debt beyond its $11,000 in
annual license fees without legislative approval, is to get
the approval and raise annual license fees for podiatrists,
board President Aaron Olson said. 

One alternative would be for Gov. John Hoeven to
dissolve the board and reappoint new members.
Supporters of Gale say that would show one of two things:
The board has been biased and running up a debt all along
to chase Gale out of town because the new board would
find a quick solution, or the board has been fair because
the new board members would make the same types of
disciplinary decisions against Gale. Testimony during the
hearing called for Hoeven to appoint new members by
asking for the resignation the board's current members. 

But this week, Duane Haudek, policy adviser for health
and human services to Hoeven, said, "The short answer is,
the governor doesn't have the authority to do that." 

All of this comes after years of controversy that led to a
police report filed a little more than a year ago of a death
threat against Aaron Olson's wife, Marcia Olson, by a
woman from another state that the report says is a relative
of Gale. No charges were filed in that incident, and Gale
said Thursday he was unaware of it.

Board lawyer, special assistant attorney general Gary
Thune, testified that the board was created in 1929 and
was financially sound. He noted that Gale forfeited his
license in California, prior to coming to North Dakota,
with charges pending against him. The first formal
complaints against Gale were filed here in 1994, Thune
said, and the second and third set -- involving patients
whose care was deemed questionable by the board --
were filed between 1994 and 2000. He said Gale's
malpractice insurance was not renewed by the Podiatry
Insurance Company of America and that non-renewal was
upheld by the U.S. District Court of Appeals and the
Eighth Circuit Court of Appeals. In 1997, Thune said, the
North Dakota Supreme Court upheld disciplinary action
taken against Gale resulting from the first set of complaints.
In 2000, a district judge confirmed a disciplinary decision
against Gale on the second set of complaints. The third set
of disciplinary charges are pending and another appeal is
pending before the state Supreme Court. 

"There have been 25 complaints sent to the board against
me over the past seven to eight years," Gale testified. "Of
those 22 are from local competitors or patients that they
were seeing. Amazingly, of the two local orthopedic
groups, one of them has sent approximately 10 of those
complaints in against me and the other orthopedic group
has sent none." 

Orthopaedic surgeon Sen. Ralph Kilzer, R-Bismarck, said
"All that fuss about the persons on the podiatry board is
nothing more than a continuation of the feud between
Aaron Olson and Brian Gale." He said legislators are
aware of the issue and are focusing their efforts, instead,
on keeping the podiatric board functioning to protect
North Dakota residents. 

Olson said rumors that the board would go bankrupt and
cease being able to license any podiatrists in North
Dakota if HB1377 isn't passed are unlikely, but possible. 

"I suppose you could draw that conclusion," he said. "Š If
you no longer have a board, then who are you licensing."
Olson said he plans to resign as board president at the end
of his current term on June 13. He said he is tired of the
stress of the job, which is volunteer, except for per diem
allowances and mileage. 

"I think we're being exceptionally fair, but no one gives us
credit for that," he said. 

Testimony by supporters of Gale at the Capitol last week
before the Senate Government and Veterans Affairs
Committee, called for the resignation of all the board's
members, including Olson. Olson said he has been advised
not to resign because it could give an inappropriate
appearance. 

Kilzer said the problems will only continue to grow if the
third round of patient complaints against Gale proceeds.

"I don't think that the bill takes care of the long-term
problem by any means," Kilzer said. "So I do not think that I would like to see the bill in its present form passed." He said he was giving only his personal opinion and did not speak for the rest of the committee. He said he would
prefer to see the bill morph into a "study resolution" that
would look at how boards of less than 100 licensees carry
out their functions. He said putting all small boards under
one umbrella may be an option. But an attempt to put the
podiatric board under the wings of the North Dakota
Board of Medical Examiners has already failed. 

Meanwhile, a Board of Inquiry set up by the American
Association of Podiatric Medicine is investigating Gale's
allegations that there is corruption on the North Dakota
board and that Olson and the board are simply trying to
ruin his business and run him out of town. 

Dr. Robert Sowell, president of the national association,
said he could not say who specifically was being
investigated by the Board of Inquiry, but such actions are
not common. 

"I would say it's a rare event," he said. 

Deputy Attorney General Sandi Tabor said a temporary
measure is needed from the North Dakota Legislature to
give her office time to find alternatives. 

"Hopefully during the interim we can figure out something,"
she told the committee. 

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