Brian Gale Statement to APMA

FOR THE RECORD TO REMIND PODIATRISTS OF THE
FAILURE OF THE APMA TO HELP BRIAN GALE, DPM

WE REPORT -- YOU DECIDE.
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Statement to APMA House of Delegates


Dr. Speaker, Members of the Board of Trustees and Members of the House of Delegates. The Board of Inquiry stated in their report that “the evidence presented to the Board of Inquiry (BOI) was insufficient to justify any further action against any individual”.



I respectfully request that the House of Delagates (HOD) do one of the following: modify, reject or table this decision, for the following reasons.



I requested that the APMA form a BOI to investigate the unethical activities by three individuals who were members of the APMA as well as members or former members of the North Dakota Podiatry Board. Those members names are Aaron Olson, Lee Hofsommer and Michael Stone. This request came from me after I was encouraged to do so by Ronnie Lepow, DPM.



I was given the told by Dr. Lepow that he saw enough evidence himself of unethical activities by these people and that a BOI could be formed by the BOT to investigate these individuals, not the North Dakota Podiatry Board.

I would not have requested the BOI if I thought there was any chance that anyone who reviewed the documents could come to a different conclusion from everyone else.



In it’s report, the BOI states, “…there are clear and unambiguous Court decisions found in the record. The BOI cannot be that of an appellate body with respect to the legal questions involved. The report goes on to say, the BOI is sympathetic to Dr. Gale’s concerns and to his claims, but the “weight of the scale” decrees that the court system in North Dakota,, even with its faults, which are similarly seen throughout the American legal system, cannot be overruled by this Board.”



I respectfully submit to the HOD that the BOI was never asked to overrule, contradict, or review with the expectation that they would criticize anything that the North Dakota Courts decided. In fact, some of those decisions were made in favor of me.

As stated previously, I specifically asked the BOI to look into unethical actions of individual members of the APMA. The court decisions that went against me pertained to whether or not I signed an agreement stating that I would accept the North Dakota Podiatry Board’s decision and that I would not appeal that decision.



The North Dakota Podiatry Board did not follow the rules of the agreement and therefore I did appeal their decision. The only point the courts reviewed was this agreement. The courts did not review any of the medical facts pertaining to the cases involved. In fact, the courts always assume that the Board members are ethical and never review any medical facts. The courts only review procedure and their review of the procedures are very cursory since the Boards are state agencies and they always give what’s called deference to the Boards.



The problem with the BOI is one of apples and oranges. The BOI was supposed to be looking at ethics while the courts were looking at an agreement to not appeal a decision. For this reason I believe the BOI did not complete it’s purpose that it was given by the APMA BOT when it was formed.



Another reason why the BOI did not complete it’s task is because I requested that the BOI contact several individuals including other Podiatrists, MD’s and lay people for testimony. The BOI did not contact any of them.



The BOI was also contacted by several individuals as well as some organizations who have publicly supported me after investigating the same records that the BOI was given. The BOI refused to take testimony from anyone who contacted them.



The BOI had 18 months to complete the investigation. It was only about 6 weeks ago that I was called to answer questions by the BOI. The questions they asked me were not specific questions about the information that was submitted to them. They were very general questions and the answers to them were outlined in my original letters to the BOI. I was given the impression that the BOI was not familiar with the materials I submitted to them.



I realize that the BOI had a difficult task and that I did send them a very large amount of materials. Unfortunately however, the way this report appears if it is accepted, the APMA is condoning the type of activities that were carried on by these individual members.



This should not be the message that this HOD sends to our profession. The profession needs to know that unethical activities will not be tolerated and a message should be sent that is loud and clear.







Dr. Sowell made the statement at the Resolutions Committee meeting on Saturday, that “we have to prove the value of membership in the APMA”. I have turned to the APMA for help in a situation where everyone who is unbiased and not placing politics in front of ethics has very easily and quickly seen the obvious errors made by the individuals in question.



I was the student government president at PCPM and was given the student faculty award for my class. I completed an extensive residency. I am board certified and I have been credentialed by several hospitals to perform surgery to the extent of my training. The only malpractice suits I have had are from either a local orthopedic surgeon or Aaron Olson talking patients into suing me.



Currently there is a malpractice suit involving a patient who I performed a surgery involving a bone graft. A few years after the surgery after the bone graft had resorbed, Olson took an x-ray and told the patient and her parents that I never put a bone graft in her foot and convinced them to sue me. This is exactly why Resolution 23.9 is present in the Code of Ethics of the APMA. It states that Podiatrists should not be involved with “meritless malpractice”.



Aaron Olson was found by a jury to be 41% responsible for a patient’s death. The Podiatry Board took only one month to review the records in this case and make the decision that he did not do anything medically unacceptable. I have been attacked and destroyed by these people since 1993. None of the patients involved in the complaints against me have ever filed for any disability let alone anything as serious as die as a result of anything I did.



There are organizations which have done their own investigation of the records and come to the conclusion that these individuals acted unethically. Specifically, Richard Willner, President of the Center for Peer Review Justice which has a membership of approximately 2100, most of which are MD’s and DO’s. The American Association of Physicians and Surgeons has also publicly supported me after their attorney, Andy Shiefly reviewed the records. This is an organization of several thousand medical professionals, mainly MD’s and DO’s.



The Semmelweis Society was founded in 1982 by Verner Waite, MD. This organization was founded to fight sham peer review. As the pie becomes smaller, there has been more and more anti-competitive activities going to the State and Federal Courts. Unfortunately, when a hospital or board decides that it wants to get rid of a doctor, it’s very difficult to fight.





There have been three sets of complaints against me. The first involved one patient. This patient stated under oath that he was told by a local orthopedic surgeon to send in a complaint against me and to sue me.



While I was being put through an administrative law trial involving this complaint in 1995, the judge noted in his findings that Olson had improperly changed the law in North Dakota in 1989 from the “foot” to the “foot and ankle”. The judge advised that it was his opinion that since the law was not properly changed that it should still only be the “foot” and include “the ankle”. The Podiatry Board decided not to accept the judges findings and to this day this problem has not been addressed. The judge called the action taken by Olson as potentially done in “bad faith” as Olson submitted the changes to the law as nothing more than “housecleaning”. A term that’s used when the changes to the law are not significant in it’s overall effect.



The second set of complaints involved five patients. None of these patients sued and none of them were questioned. Four of these five complaints came from the local orthopedic surgeons. The fifth came from a patient after she was seen and told to do so by Olson.



Of these same five patients, two had excellent results without any complaints or complications. The other three were referred to me after they had complications from surgery performed by someone else. Two of these three complications were results of surgery performed by Olson and the third was from a local orthopod.



There were no complaints submitted by the patients against the original surgeon who’s care resulted in the complications. The three patients left my care either in about the same condition or better than when they first came to me.



In January, 2000, the Podiatry Board disciplined me by removing my surgical privileges until I complete the same mini-residency at Tucker, Georgia three times along with another course of CME’s totally 166 hours. They also are making me repay the Board approximately $50,000 in legal charges they ran up to discipline me.



I have never been allowed to discuss any of the complaints with anyone from the Podiatry Board. I was never given a chance to resolve any questions they had. I was never asked to give my “side of the story” in a situation where the Board members asked me questions in an attempt to resolve any issues.



My expert, Harold Vogler submitted an extremely detailed report regarding these complaints. The report included references to podiatric literature supporting every action taken by me and every conclusion made by Dr. Vogler.



The individuals on the Podiatry Board never referred to Dr. Vogler’s report and never attempted to explain why they disagreed with his opinion. The Board’s expert had no references to support any conclusions or opinions that he gave.



After several Podiatrists in North Dakota and I worked hard to testify about the activities of these individuals to the North Dakota State Legislative Session last year, we were finally able to change the laws to have term limits placed on the Board members.



The North Dakota Legislative Session also formed a Committee to investigate the possibility of combining the smaller Board in the state because of the potential for abuse of power.



State Senator John Andrist stated that “



Some of the Podiatry Board members had been it for 10,15 and even 20 years. Olson had been the president for approximately 20 years. After we were able to get the term limits, Olson and others resigned. In two months from now there will only be one Board member remaining from the one’s who had disciplined me.



After never considering to resolve any of these complaints in the past, the Board has suddenly given the Attorney General’s office full authority to settle the remaining complaints against me.



We as a profession can have a Code of Ethics on paper and we can review and update that Code of Ethics, but it’s not worth the paper it’s written on if it’s not enforced.



This is an important decision that will send a very loud message to the members of our profession. Either the message is unethical activities are tolerated and will not be scrutinized by the APMA. This in turn leaves the door open for others to take a lesson from these individuals and look for ways to conduct their own “witch hunts” in their areas.



Or, this House of Delegates can make a statement that this type of unethical activity will not be tolerated and in turn it will go a long way towards preventing future abuse of power such as this.



I formally request that the House of Delegates either modify, reject or table the decision concerning this report. I submitted a list of many possible senerios for the BOI to consider.



It was understood from the onset that the APMA has no jurisdiction over state boards or courts. The purpose of the BOI was to take some type of action against the individuals membership in the APMA and to help me in one way or another.



If I had know that there would be any chance that the BOI would return a report stating that they did not find evidence to support unethical activities, I certainly would have never asked for the BOI as Dr. Lepow advised me to in the first place.



For those of you who are motivated to vote by politics, please consider making the ethical and obvious choice in this situation.



Thank you for your time.



Brian Gale, DPM