Gale v. ND BD. OF PODIATRIC MEDICINE, 20010032.

• Decision Date: 30 July 2001
• Docket Number: No. 20010032.,20010032.
• Citation: 2001 ND 141,632 N.W.2d 424
• Parties: Dr. Brian D. GALE, Appellant, v. NORTH DAKOTA BOARD OF PODIATRIC MEDICINE, Appellee.
• Court: North Dakota Supreme Court

632 N.W.2d 424

2001 ND 141

Dr. Brian D. GALE, Appellant, v. NORTH DAKOTA BOARD OF PODIATRIC MEDICINE, Appellee.

No. 20010032.

Supreme Court of North Dakota.

July 30, 2001.

James J. Coles, Coles Law Firm, PC, Bismarck, ND, for appellant.

Gary R. Thune, Special Assistant Attorney General, Pearce & Durick Law Firm, Bismarck, ND, for appellee.

MARING, Justice.

[¶ 1] Dr. Brian Gale appeals from a judgment dismissing his appeal to district court from an order of the North Dakota Board of Podiatric Medicine ("the Board") imposing discipline. We conclude Gale waived his right to challenge the findings of fact on appeal, and we affirm the judgment dismissing his appeal to district court.

I

[¶ 2] Gale is a doctor of podiatric medicine practicing in Bismarck. In 1994, the Board filed a formal complaint against Gale resulting in discipline being imposed for his failure to properly treat a patient and his use of misleading advertising. Gale was placed on unsupervised probation for two years and ordered to pay a civil penalty. We affirmed the Board's order in Gale v. North Dakota Bd. of Podiatric Med., 1997 ND 83, 562 N.W.2d 878.

[¶ 3] After our ruling in Gale, the Board acted on additional complaints it had received about Gale. It resolved complaints from four patients through informal proceedings. In August 1997, the Board initiated a formal complaint based upon Gale's treatment of seven other patients. In April 1998, the formal complaint was amended to include complaints by two additional patients, and to drop the complaint of one patient.

[¶ 4] The formal complaint alleged violations of N.D.C.C. § 43-05-16(1)(g), (k), and (u), which provides:

Grounds for disciplinary action.

1. The board may refuse to grant a license or permit or may impose disciplinary action as described in this chapter against any podiatrist. The following conduct, whether occurring in this state or elsewhere, is prohibited and is a basis for disciplinary action:

....

g. Engaging in any unethical conduct; conduct likely to deceive, defraud, or harm the public; demonstrating a willful, careless, or negligent disregard for the health, welfare, or safety of a patient; or podiatric medical practice that is professionally incompetent, in that it may create unnecessary danger to any patient's life, health, or safety regardless of whether an actual injury is proved.

....

k. 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.

....

u. A continued pattern of inappropriate care as a podiatrist.

[¶ 5] The formal complaint alleged specific details of Gale's alleged improper treatment of patients¹:

Brian David Gale, D.P.M., while licensed as a doctor of podiatric medicine by the North Dakota State Board of Podiatric Medicine, and while in the state of North Dakota, violated the provisions of 43-05-16(1)(g), (k), (u), North Dakota Century Code, by:

a. failing to properly treat and care for Patricia J. Lautenschlager. Dr. Gale performed an ankle fusion of the right ankle and a procedure to remove a portion of the medial malleous and reposition pins from the external fixator in March 1993. As a result of the procedures, the ankle was in a position of varus, and the tibia was posteriorly displaced on the talus. Dr. Gale performed a calcaneal osteotomy in March 1994, resulting in residual varus of the foot and pain in the subtalar joint.

....

d. failing to properly treat and care for Margie A. Pulkrabek. Dr. Gale performed a tarsal tunnel release with plantar fascia release on the right foot in December 1994. Ms. Pulkrabek was left with persisting numbness and pain in the right foot following the surgery. A tarsal tunnel release was not indicated. The procedure was not properly performed in that the medial calcaneal nerve was cut.

e. failing to properly treat and care for Geraldene Parsley. Dr. Gale performed a gastrocnemius recession with exploration of the left Achilles tendon on May 2, 1994. The records do not demonstrate this surgery was appropriate and Dr. Gale's post-operative diagnosis did not match the operative findings.

....

g. failing to properly treat and care for Gladys Wright. Dr. Gale performed a total joint implant of the right first metatarsal phalangeal joint in July 1996. The phalangeal component of the implant was in a plantarflexed position after surgery and there was loosening of the distal component. Joint congruity also failed to be kept after surgery. Dr. Gale failed to diagnose loosening of the implant.

h. failing to properly treat and care for Shirley Sailer. Dr. Gale attempted to repair the hallux varus (iatrogenic) of the right foot following a bunion correction in 1990 by another podiatrist. Dr. Gale's June 1996 surgery on the right foot involved soft tissue balance and osteotomy of the first metatarsal phalangeal joint. The pre-operation varus of the hallux was approximately 15 degrees; the final position of approximately 20 degrees varus with elevation of the first metatarsal head. Dr. Gale failed to recognize shifting of osteotomy from the earlier x-rays. There was also further loosening of the screw and proximal migration of the capital fragment.

[¶ 6] On June 22, 1998, the Board and Gale entered into a settlement agreement which provided Gale would waive his right to an administrative hearing and the matter would be submitted to an independent expert reviewer to make binding, nonappealable findings of fact. The agreement provided, in pertinent part:

Gale agrees to waive his right to an administrative hearing.

The Board and Gale wish to resolve this matter without an administrative hearing.

....

NOW, THEREFORE, the Board and Gale agree to resolve this matter as follows:

1. The records of patients involved in the complaint will be submitted to an independent expert reviewer selected as outlined in paragraph 3. The independent reviewer will make factual findings regarding whether Gale failed to properly treat and care for the patients. The independent reviewer's factual findings will be binding on both the Board and Gale, and not appealable.

[¶ 7] The parties selected Dr. Adolph Galinski, Associate Dean, Clinical Sciences, Scholl College of Podiatric Medicine, to serve as the independent expert reviewer. The parties submitted medical records, expert opinions, and briefs to Dr. Galinski. Dr. Galinski issued his report on July 20, 1999, making specific findings that Gale had failed to properly treat and care for each of the five patients. Dr. Galinski also noted that Gale's medical recordkeeping was unacceptable.

[¶ 8] Gale appeared with legal counsel at the Board's regular annual meeting on August 11, 1999. Gale and his attorney informed the Board they believed Dr. Galinski had improperly considered Gale's medical recordkeeping, which had not been alleged in the formal complaint, and they therefore did not consider his report binding. Gale's attorney indicated they were considering an appeal to district court, but suggested that the Board members could serve as independent reviewers, reexamine the medical records of the five patients, and make new findings of fact. After lengthy discussion, and a recess to allow Gale and his attorney to consult, the parties agreed to amend the earlier settlement agreement and have four of the five members of the Board² reexamine the records and make binding, nonappealable findings of fact.

[¶ 9] On August 12, 1999, the parties memorialized their new agreement in a written stipulation:

AS AGREED at the Annual Meeting of the Board of Podiatric Medicine held at the Jamestown Hospital in Jamestown, North Dakota on the evening of Wednesday, August 11, 1999, the undersigned legal counsel hereby STIPULATE TO MODIFY the intent and meaning of that Settlement Agreement dated June 22, 1998 (a copy of which is attached hereto and incorporated by reference), as follows:

1. INDEPENDENT REVIEWER:

All references to an "independent reviewer" shall be interpreted to mean the following four members of the Board of Podiatric Medicine:

Lee Hofsommer, D.P.M;

Mike Stone, D.P.M.;

Bob Deckert, D.P.M.; and

Doug Moen, M.D.

It is agreed that these four members of the Board shall replace Adolph W. Galinski as the independent reviewers under said Settlement Agreement.

2. ROLE OF NEW REVIEWERS:

The above-named reviewers shall review all those briefs and documents, including x-rays, which were provided to and reviewed by Adolph W. Galinski, following which the reviewers may exercise the option of either making further oral inquiry of Dr. Brian Gale or making factual findings regarding whether Gale failed to properly treat and care for patients. The new independent reviewers' factual findings will be binding on both the Board and Gale, and not appealable.

All other provisions of the aforesaid Settlement

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