selfincrimination.kaiserpapers.info
Link for Translation of this Kaiser Papers page from Google Translation Service
On
Friday, May 25, 2007, Dave Thornton of the California Medical Board was
deposed by the Circuit Court of the State of Wisconsin in and for Eau
Claire County. This was necessary for a thorough explanation to
the State of Wisconsin as to how and why Dr. Michael T. (Terry) McEnany, chief of TPMG's Cardiovascular Surgery Department
was allowed to continue practicing medicine, was enabled by Kaiser
Permanente to falsify employment documents to secure an out of state
job in Wisconsin, again overseeing a Cardiovascular Surgery Department , and other
serious endangering to patient matters. This document establishes
the history of, validity of following documents and the Kaiser
Permanente justification of self protection for breaking the law and
consequently endangering numerous patient lives.
A true copy of this set of documents can be viewed at:
http://selfincrimination.kaiserpapers.info/pdfs/thornton_20070717085607.pdf
A true copy of this set of documents can be viewed at:
http://selfincrimination.kaiserpapers.info/pdfs/thornton_20070717085607.pdf
IN THE CIRCUIT COURT OF THE STATE OF WISCONSIN IN AND FOR EAU CLAIRE COUNTY
E. VIRGINIA ROBINSON,
INDIVIDUALLY AND AS SPECIAL
ADMINISTRATOR FOR THE ESTATE
OF MILES ROBINSON,
Plaintiffs,
PHYSICIANS INSURANCE COMPANY
OF WISCONSIN, INC., MIDELFORT CLINIC, LTD., LUTHER. HOSPITAL, AND
M. TERRY MCENANY, M. D., AND
WISCONSIN PATIENTS COMPENSATION FUND,
Defendants
Deposition of
DAVE THORNTON
Friday, May 25, 2007
Reported by: JULIE STINNEIT, CSR 11578
E. VIRGINIA ROBINSON,
INDIVIDUALLY AND AS SPECIAL
ADMINISTRATOR FOR THE ESTATE
OF MILES ROBINSON,
Plaintiffs,
vs. Case Number: 99CV657
Case Code: 30104/30105
Case Code: 30104/30105
PHYSICIANS INSURANCE COMPANY
OF WISCONSIN, INC., MIDELFORT CLINIC, LTD., LUTHER. HOSPITAL, AND
M. TERRY MCENANY, M. D., AND
WISCONSIN PATIENTS COMPENSATION FUND,
Defendants
Deposition of
DAVE THORNTON
Friday, May 25, 2007
Reported by: JULIE STINNEIT, CSR 11578
APPEARANCES
FOR THE PLAINTIFFS:
MICHAEL J. HAPPE Attorney At Law Appearing by Telephone
Ryberg & Happe, SC
200 Riverfront Terrace
Suite 100
P.O. Box 1999
Eau Claire, Wisconsin 54702-1999
(715) 833-9699
FOR THE DEFENDANTS:
DAVID J. COLWIN
Attorney At Law
Sager, Colwin, Samuelsen & Associates, S.C.
201 South Marr Street
Fond Du Lac, Wisconsin 54935
(920) 921-5770
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INDEX OF EXAMINATION
PAGE
BY MR. HAPPE ................................................................................ 4
BY MR. COLWINN ............................................................................29
FURTHER EXAMINATION
BY MR. HAPPE ......................................................................... 59, 70
BY MR. COLWIN............................................................................ ..68
EXHIBITS
PLAINTIFFS' DESCRIPTION PAGE
1 Settlement Agreement....................................................................4
2 Decision .......................................................................................4
3 Confidential Memorandum ........................................................... ..4
4 5/3/93 Correspondence ..................................................................4
5 6/18/93 Correspondence................................................................ 4
6 6/25/93 Correspondence................................................................ 4
7 Application for Appointment to the Medical Staff................................4
---o0o---
BE IT REMEMBERED that on Friday, the 25th day of May, 2007, at the hour of 9:14 a.m. of said day, at the MEDICAL BOARD OF CALIFORNIA, 1426 Howe Avenue, Suite 92, Sacramento, California, before me, Julie Stinnett, a Certified Shorthand Reporter, personally appeared:
DAVE THORNTON,
called as a witness herein, having been administered an oath in accordance with C.C.P. Section 2094, was examined and testified as follows:
---o0o--
(Exhibits 1-7 were marked for identification.)
EXAMINATION BY MR. HAPPE
Q. Would You please state your full name.
A. David Thornton, T-h-o-r-n-t-o-n.
Q. Mr. Thornton, what is your professional address?
A. It's 1434 Howe Avenue, H-o-w-e, Sacramento, California 95825.
Q. Have you ever given a deposition before?
A. Yes.
Q. Just to familiarize you with some of the ground rules, if if you don't hear me or understand my question, please let me know.
A. Okay.
Q. If you don't understand a question, just please let me know that. If you have to take a break, please let us know.
You have been sworn to tell the truth. This deposition would be really the same as if you were testifying in a court of law.
Do you understand that?
A. Understood. Yes.
Q. What is your occupation, sir?
A. I'm the Executive Director of the Medical Board of California.
Q. And what does the Executive Director of the Medical Board of California do? What are your duties?
Q. The Medical Board of California, then, is an entity of the state of California?
A. It is. It's under the umbrella of the Department of Consumer Affairs, and it is the state agency that licenses physicians and surgeons and disciplines those license.
Q. My next question was going to be what is the purpose of the medical board, and you have just explained that purpose?
A. I did .
Q. Okay. How long have you been the Executive Director for the Medical Board?
A. Approximately three years.
Q. And how long have you been employed by the Board?
A. Approximately 32 years.
Q.- Are you-familiar with an investigation by the Medical Board - when I Say ''Medical Board," I'm referring to the Medical Board of California throughout. So if you would please take that in consideration.
Are you familiar with the Medical Board's investigation of Kaiser Permanente Hospital in San Francisco and a couple of its administrators, Dr. Madvig and Alvarez?
A. Yes, I am.
Q. I'd like you to take a look at Exhibit 1, please.
A. Okay.
Q. Could you tell us what Exhibit 1 is.
A. Exhibit 1 is a Settlement Agreement of the imposition of violation (sic) and civil penalty against Mr. Alvarez, Frank Alvarez, and Dr. Madvig, Philip R. Madvig, both employed by Kaiser Permanente, San Francisco.
Q. And Exhibit 1 attaches and incorporates into it two exhibits, it appears, Exhibit A and Exhibit B; is that correct?
A. That's correct.
Q. And what is Exhibit A attached to Exhibit 1?
A. Exhibit A is the Notification of Violation and Imposition of Civil Penalty that was served on Mr. Alvarez and Dr. Madvig.
Q. And what is Exhibit B attached to Exhibit 1?
A. Exhibit B is the Notice of Defense and Special Defense.
Q. It's my understanding that Exhibit 1 is a public document; is that true?
A. That's correct.
Q. And Exhibit 1 is a certified public document certified by the records custodian of the Medical Board of California?
A. Correct.
Q. And does that certified public document that we have identified as Exhibit 1 include Exhibits A and B? In other words, when we say that Exhibit 1 is a public document, is that also true of the exhibits that are attached to Exhibit 1?
A. Yes.
Q. At this time, I'd like you to take a look at Exhibit 2, and I would ask you to identify that document, please.
A. This is the Board's Decision -- the Medical Board's Decision in the matter of the accusations filed against Michael T. Mcenany, M-c-e-n-a-n-y, M.D., Case Number 03-1997-71927. The decision was ordered July 7th, 1998, with an effective date of July 14th, 1998.
Q. Attached to Exhibit 2 is Exhibit A; is that correct?
A. Yes.
Q. Could you identify Exhibit A, please.
A. Exhibit A is a copy of the accusation filed against Dr. Mcenany. and an accusations is a -- an administrative charging document charging him with various violations in the Medical Practice Act.
Q. Is Exhibit 2 a public record in the State of California?
A. Yes.
Q. And Exhibit 2 also appears to be a certified public record; is that correct?
A. That's correct.
Q. And when and by whom was Exhibit 2 certified?
A. It was certified by Loretta Arroyo, A-r-r-o-y-o, records custodian. And it was certified on May 24th, 2007,
Q. Mr. Thornton, I'd like to go into a little more detail with respect to Exhibit 1.
A. Okay.
Q. When I say Exhibit 1, again, I'm referring to Exhibit 1 that includes as one document the exhibits that are attached thereto.
Do you understand that?
A. Yes.
Q. One more thing before I get to Exhibit 1. I'm sorry. Are you familiar with the investigation conducted by the Medical Board of California with respect to the accusations against Dr. Mcenany?
MR. COLWIN: Object to the form of the question.
Go ahead.
THE: WITNESS: Yes, I am familiar with it.
Q. (BY MR. HAPPE) In the Exhibit 2 it refers to Michael T. Mcenany. Do you know, has that individual also been referred to as Terry Mcenany?
A. I believe so, yes.
Q. And Dr. Mcenany was a cardiovascular or cardiothoracic surgeon in San Francisco between -- at least between the periods of 1993 --well, at some point in 1993?
A. Yes.
Q. With respect to Exhibit 1, what is your understanding of the reason for the investigation by the Medical Board of Mr. Alvarez and
Dr.Madvig?
MR. COLWN: Object to the form of the question. Also, foundation.
Go ahead.
THE WITNESS: We had received information -- "we" meaning the Medical Board, had received information that restrictions had been placed on Dr. Mcenany's license by Kaiser Hospital in San Francisco, and that those restrictions were not reported to the Medical Board as required by Section 805 of the California Business and Professions Code.
Q. (BY MR. HAPPE) - Does the Medical Board of California then do a thorough investigation?
MR. COLWIN: Object to the form of the question.
THE WITNESS: Yes.
Q. (BY MR. HAPPE) And I'd like to refer you to Exhibit A, page 2.
A. Exhibit 1 or A?
Q. The determination (sic) of violation.
MR. COLWIN: Are you referring, Michael, to Exhibit 1A?
MR. HAPPE: Yes.
MR. COLWIN: Okay.
Q. (BY MR. HAPPE) Are you with me there, Mr. Thornton?
A. Yes.
Q. Okay. Are the determination of violations that are identified in Exhibit I, Exhibit A attached thereto, in paragraphs 4 through 16 the findings made by the Medical Board of California as result of their investigation?
MR. COLWIN: Objection as to form with regard to the word "findings."
Go ahead.
THE WITNESS: Yes. The determination of violations was based on what we determined were violations as a result of our investigation.
Q. (BY MR. HAPPE) Those were findings made by the Medical Board of California that Dr. Madvig and Mr. Alvarez were entitled to admit or deny and raise a defense?
A. Well, they were in the form of a notice of violation, and, as such, they are allowed to raise a defense to defend themselves against those accusations.
Q. Those determination of violations were, in essence, findings that the Medical Board of California made as a result of the investigation?
MR. COLWIN: Objection to form.
Go ahead.
THE WITNESS: Yes .
Q. (BY MR. HAPPE) What were -- I'd like you to just go through, if you would, please, the specific findings that were made by the Medical Board as a result of its investigation.
MR. COLWIN: Objection to the form.
THE WITNESS: Okay. What we found was that sometime in late 1992, early 1993, that restrictions were placed on Dr. Mcenany's license - not -- strike that. Not on his license but on his ability to practice medicine at Kaiser in San Francisco, and the restrictions were in the form of the fact that he was not allowed to perform any surgeries unless he had an assistant surgeon there with him.
Q. (BY MR. HAPPE) Why is that a restriction on Dr. Mcenany's surgical privileges at Kaiser?
MR. COLWIN: Objection to form and foundation.
Go ahead.
THE WITNESS: Well, because of the way Section 805 reads, hospitals are required to report any restriction of staff privileges for a medical disciplinary cause of reason if those restrictions last more than 30 days. And by requiring that Dr. Mcenany have an assistant surgeon before he can perform any surgeries, the Medical Board deemed that as a restriction on his ability to practice Medicine at
that facility.
Q. (BY MR. HAPPE) Did the Medical Board determine that the restriction on Dr. Mcenany's privileges was necessitated as a result of concerns regarding his competency and concerns for patient safety?
MR. COLWIN; Objection to form and foundation.
THE WITNESS; I -- that was part of the findings of our investigation, yes.
Q. (BY MR. HAPPE) You mentioned Rule (sic) 805. Could you maybe step back for a moment and explain to us what Rule 805 is and how it applies to Kaiser and Dr. Mcenany?
A. Well, it's not a rule. It's a section of law. It's Section 805 of the California Business and Professions Code. And that section, as it was - the form it was in at that time in 1993, required the Chief of Staff and the Administrator of a hospital to report restrictions or the termination of staff privileges to the Medical Board within certain specified time periods. And these restrictions that were placed would be the result of a medical disciplinary cause or reason. In other words, they were placed on there because there was some concern about patient safety.
And let me give you an example of the type of restriction that probably wouldn't have to be reported to the Board, and that is if the physician failed to complete medical records at the hospital that didn't impact patient safety, that would not be a medical disciplinary cause of reason, even though his privileges were restricted.
Q. Okay. Dr. Mcenany has disputed that there was a restriction on his privileges, and he has classified it as just some temporary assistance for another doctor to assist him during a practice review or peer review that was taking place at Kaiser, and that it was not a restriction that needed to be reported.
Number one, do you and the Medical Board dispute that and why?
MR. COLWIN: Objection. Form, foundation.
Go ahead.
THE WITNESS: We do dispute that, and the reason is -- you have to look at the circumstance. Could Dr. Mcenany have practiced at the hospital without an assistant? And if the answer is yes, then it wouldn't be a reportable incident. But since our investigation found that he was required to have this assistant surgeon in order to practice at the facility, then that was a reportable incident.
Q. (BY MR.. HAPPE) And was the restriction that was found by the Medical Board confirmed by internal Kaiser Hospital documents?
MR. COLWIN: Objection to --
Q. (BY MR. HAPPE) Specifically, I'd like you to refer to Exhibits 3 and 4.
MR. COLWIN: Same objections.
THE WITNESS: Those two exhibits did help confirm our belief that there was a restriction in place that should have been reported.
Q. (BY MR. HAPPE) I'd like you to take a look at paragraph 7 of Notification of Violation.
Was there also a report by Dr. Bruce Blumberg that formed a basis for the Medical Board's conclusion that there was a risk to patient safety as a result of Dr. Mcenany's surgical performance in San Francisco in 1993?
MR. COLWIN: Objection. Hearsay and foundation.
Go ahead.
THE WITNESS: Well, as Dr. Blumberg found, there were some concerns for patient safety, and that there were two recent, unexpected patient deaths, a higher than expected mortality rate for Dr. -- he refers to him as, I think, "M" in this particular document -- Dr. Mcenany's patients, a higher incident of surgical complication, rough handling of tissues, a high incident of torn vessels, air locks (sic) and grafts that require lengthening or shortening, operating with inadequate assistance, scheduling cases in a manner that exceeds the threshold of his endurance and an episodic history of dysfunctional relationships with colleagues, both within and outside his own department.
Does that answer your question?
Q. (BY MR. HAPPE) Yes.
Did Dr. Blumberg find anything else with respect to Dr. Mcenany's surgical performance and his behavior at Kaiser?
MR. COLWIN: Objection as to the word -- object to the form of the question, specifically with regard to the word "find."
Go ahead.
THE WITNESS: I think he found that he had characterized it as a forceful personality; one who was unwilling to accept or seek the advice of his colleagues, and also that his behavior on at least two occasions jeopardized patient care.
Q. (BY MR. HAPPE) Were there also concerns raised by members of the cardiovascular staff and physicians from the anesthesiology department concerning Dr. Mcenany --
MR. COLWIN: Object - I'm sorry.
[BY MR. HAPPE) -- in late 1992?
MR. COLWIN: Objection. Hearsay. Foundation and form.
Q. (BY MR. HAPPE) I'm referring to paragraph 6.
A. You are referring to which paragraph? I'm sorry.
MR. COLWIN: Six.
Q. (BY MR. HAPPE) Paragraph 6.
A. Six. Okay. Yes.
That was one of our findings.
Q. At what point did the Medical Board of California find that the -- through its investigation that the restriction on Dr. Mcenany's privileges was imposed?
MR. COLWIN: Same objections.
Go ahead.
THE WITNESS: Well, I don't know that we identified an exact date, but we did identify they were clearly in place early March of 1993.
Q. (BY MR. HAPPE) I take it, then, the fact that Dr. Mcenany was not allowed to perform any surgery without another senior staff surgeon acting as his first assistant was something that was extraordinary?
MR. COLWIN: Object to the form of the question, and assumes facts not in evidence.
Go ahead.
Q. (BY MR. HAPPE) I mean extraordinary in the sense it required to be reported and was out of the ordinary.
MR. COLWIN: Same objections.
THE WITNESS: Well, I don't know if I would classify it as extraordinary, but it was a restriction on his privileges at that facility
which required reporting to the Medical Board.
Q. (BY MR. HAPPE) Was there any doubt by the Medical Board that, in fact, Dr. Mcenany's surgical privileges were restricted at Kaiser Hospital in 1993?
MR. COLWIN: Objection as to form. Foundation.
Hearsay.
Go ahead.
THE WITNESS: There was no doubt.
Q. (BY MR. HAPPE) As I understand it under Rule 805 of the Business and Professions Code, there are two aspects to that: One is it's required to report a restriction if it's been imposed for more than 30 days during a 12-month period for a medical disciplinary reason; and, two, an 805 report is required to be completed if a physician resigns before the completion of or during an investigation
indicating a medical disciplinary cause or reason; is that correct?
MR.. COLWIN: Objection. Compound.
Go ahead,
THE WITNESS: You are correct on both counts. Section 805 is pretty explicit in that if a physician resigns while there is an investigation or upon the notification of an investigation, that's a reportable incident.
The reason for that is that individual hospitals have the ability to restrict or remove a physician from their staff, but that doesn't protect the public. That physician can then move to another hospital, get staff privileges and continue to practice and present a harm to the public.
So the Medical Board is key to getting that information so that we can do an investigation and place restrictions or revoke the physician's license, if necessary, and that's the reason 805 -- Section 805 is in existence.
Q. (BY MR. HAPPE) Were the restrictions on Dr. Mcenany's privileges ever terminated before he resigned his employment at Kaiser?
MR. COLWIN: Objection to form and foundation. Go ahead.
THE WITNESS: Not that I'm aware of.
Q. (BY MR. HAPPE) Okay. In its investigation, did the Medical Board of California find any evidence that the restriction had been lifted before Dr. Mcenany resigned?
A. No.
Q. And you mentioned earlier that part of the violation of Kaiser was the failure to report the restriction. Was there also a violation of 805 as a result of failing to file notice of the investigation of Dr. Mcenany before he resigned his employment and left California?
MR. COLWIN: Objection. Form and foundation.
Go ahead.
THE WITNESS: I'm not sure I understand your question. They are not - the hospital is not required to report an investigation to us. They are only required to report if there are restrictions placed while that investigation is in progress. They are required to report if the physician resigns while an investigation is in progress.
Q. (BY MR. HAPPE) Okay. I guess that's what I was referring to.
Was there a violation of the second aspect there that you just mentioned?
MR. COLWIN: Objection. Foundation.
Go ahead.
THE WITNESS: I think you are asking me if there was really two reportable incidents, and--
MR. HAPPE: Yes.
THE WITNESS: -- the answer would be yes. Once 30 days elapsed when those restrictions were placed on Dr. Mcenany requiring him to have an assistant surgeon, there should have been an 805 report filed at that point.
Also, there should have been an 805 report filed once he resigned while the investigation was still in progress.
So there could have been two incidents that should have been reported to the Medical Board.
Q. (BY MR. HAPPE) Okay. The second incident, is that the requirement that is identified in Section 805 (b) , 4 (a), as identified in paragraph 4 of the Medical Board findings?
A. Yes.
Q. And is the purpose of that provision to prevent a bad doctor from bouncing from state to state?
MR.COLWIN: Objection to form.
THE WITNESS: No. It's not really designed to keep them from bouncing from state to state. It's more to keep them from bouncing from one hospital to the next in California--
MR. HAPPE: Okay.
THE WITNESS: - without some notice to the Medical Board.
Q. (BY MR. HAPPE) Do hospitals in another state have access to determine whether a physician who has resigned
resigned in the middle of an ongoing investigation, to your knowledge?
A. I don't know. Restrictions are required to be reported by the hospital to the National Practitioner Data Bank, but I don't know if other states have access to that information. They may, but I'm no expert on the data bank.
Q. Okay. In any event, that reporting requirement is to prevent a doctor from bouncing from hospital to hospital, then?
A. Yes. Let me -- let me modify that. It doesn't really prevent them from bouncing from hospital to hospital. But what it does is it gives the Medical Board notice that there is a problem with this physician, gives us the opportunity to investigate. Also puts the other hospitals on notice, because that 805 report is on file. Should that physician seek staff privileges, hospitals are required to check with the Medical Board before they grant those staff privileges to see if any 805 reports are on file.
So I just want to make sure that that's clear, that it doesn't prevent them, but it does put the other facilities and the Medical Board on notice.
Q. I understand. Thank you for that clarification.
Did the Medical Board of California become aware of a cover-up of the restriction?
MR. COLWIN: Objection to the form of the question and also foundation.
Go ahead.
Q. (BY MR. HAPPE) ,Or a -- did the Medical Board become aware at some point of a cover-up between Dr. Mcenany and Kaiser with respect to avoiding the filing of an 805 report?
MR. COLWIN: Same objections.
THE WITNESS: We did become aware that there was an effort -- what we -- what I would classify as a cover-up or a failure to report that was facilitated by Dr. Mcenany and his lawyer with Kaiser; that if he resigned, that there wouldn't be any reporting to the Medical Board.
Q. (BY MR. HAPPE) Mr. Thornton, in Exhibit A to Exhibit 1, there is reference in paragraph 12 am 13 to some correspondence between the attorneys for Kaiser Hospital in San Francisco and Dr. Mcenany's attorney.
Do you see that in Exhibit 1A?
A. Yes.
Q. Are those letters identified in Exhibits 5 and 6 to this deposition? Could you take a look at those, please.
MR. COLWIN: Here you go.
THE WITNESS: Exhibit Number 5 is the June 18th letter -- June 18th, 1993, letter from Dr. Mcenany's attorney to Kaiser. That is identified as Exhibit 5.
The June 25th, 1993, letter in paragraph 13 from Mr. William Patrick, Kaiser Vice President, to Dr. Mcenany's lawyer is the letter identified as Exhibit 6.
Q. (BY MR. HAPPE) Do Exhibits 5 and 6 evidence the cover-up engaged in by Dr. Mcenany and Kaiser?
MR. COLWIN: Objection to form.
Go ahead.
Also, hearsay.
Go ahead.
THE WITNESS: It's my belief and the Medical Board's belief that they do.
Q. (BY MR. HAPPE) Is it your belief that that was fraudulent, the activity on the part of Dr. Mcenany and Kaiser?
MR. COLWIN: Objection to foundation, form.
THE WITNESS: I -- I believe it was fraudulent activity. Whether it was on Dr. Mcenany's part or his lawyer's part with Dr. Mcenany's knowledge, I can't answer that aspect of it. But we believe -- the Medical Board believes that these letters evidence a - an attempt to cover up the fact that Dr. Mcenany was resigning with restrictions in place. And that, you know, contrary to Section 805 of the Business and Professions Code, those restrictions, that information, would not be reported to the Medical Board.
Q. (BY MR. HAPPE) Do those letters, Exhibits 5 and 6, evidence a conscious disregard of the requirement in Rule 805?
MR. COLWIN: Objection. Form and foundation. In addition, the question is asking this gentleman, this witness, to enter into the mind of Dr. Mcenany as well as other individuals who drafted and received these documents.
Go ahead.
THE WITNESS: I would agree with counsel that I can't -- I can't comment on that because I don't know if it was a conscious effort on their part to disregard the law. I think the documents pretty much - pretty well speak for themselves .
Q. (BY MR. HAPPE) I'd like you to take a look at Exhibit B that's attached to Exhibit 1. That is the defense that was asserted by the administrators at Kaiser Permanente in San Francisco.
A. Yes.
Q. And is there anywhere in that defense where Mr . Alvarez and Dr. Madvig specifically denied that there was a restriction on Dr. Mcenany's privileges? /Again, that's a specific denial of the restriction.
A. Well, a specific denial that there were restrictions, I don't see that present in here, no.
Q. Okay. According to the notification, the maximum penalty for the violation -- Kaiser's violation for failure to file the 805 report was a fine of $20,000; is that correct?
A. No. The maximum penalty is $10,000 that can be applied to both individuals.
Q. Okay. 10,000 for each violation, there being two violations would be $20,000?
A.. Correct.
Q. And what was the outcome of the proceedings against Mr. Alvarez and Dr.Madvig?
A. Well, that's contained in Exhibit 1 starting with, I guess, paragraphs 1 through 8; and do you want me to go through that or --
Q. Well, it appears to me that they decided not to mount any kind of vigorous defense but agreed to pay a fine of $19,900; is that correct?
MR. COLWIN: Object to the form and characterization of the question.
Go ahead.
THE WITNESS: Specifically the respondents, which would be Dr. Madvig and Mr. Alvarez, stated their understanding of Section 805 and the requirements of 805, that they maintained that they never intentionally failed to file a required report with the Medical Board; that they regularly seek out the advice of counsel concerning the need to file 805 reports; that they agreed to prepare a
written document regarding the filing of 805 reports which will identify the individual and so on in paragraph 4; and that they also agree to pay the Medical Board of California the amount of $19,900.
Q. (BY MR. HAPPE) And that's just $100 short of the maximum fine they would have had to pay?
A. Yes.
Q. Based on your experience as an employee of the Medical Board of California and in being exposed to matters 5 like this where notification of violations are asserted by the Board, if one has a solid defense, do you find that they would typically engage in a settlement agreement such as Exhibit l?
MR. COLWIN: Objection to form. Also, relevancy.
FOR THE PLAINTIFFS:
MICHAEL J. HAPPE Attorney At Law Appearing by Telephone
Ryberg & Happe, SC
200 Riverfront Terrace
Suite 100
P.O. Box 1999
Eau Claire, Wisconsin 54702-1999
(715) 833-9699
FOR THE DEFENDANTS:
DAVID J. COLWIN
Attorney At Law
Sager, Colwin, Samuelsen & Associates, S.C.
201 South Marr Street
Fond Du Lac, Wisconsin 54935
(920) 921-5770
---o0o---
INDEX OF EXAMINATION
PAGE
BY MR. HAPPE ................................................................................ 4
BY MR. COLWINN ............................................................................29
FURTHER EXAMINATION
BY MR. HAPPE ......................................................................... 59, 70
BY MR. COLWIN............................................................................ ..68
EXHIBITS
PLAINTIFFS' DESCRIPTION PAGE
1 Settlement Agreement....................................................................4
2 Decision .......................................................................................4
3 Confidential Memorandum ........................................................... ..4
4 5/3/93 Correspondence ..................................................................4
5 6/18/93 Correspondence................................................................ 4
6 6/25/93 Correspondence................................................................ 4
7 Application for Appointment to the Medical Staff................................4
---o0o---
BE IT REMEMBERED that on Friday, the 25th day of May, 2007, at the hour of 9:14 a.m. of said day, at the MEDICAL BOARD OF CALIFORNIA, 1426 Howe Avenue, Suite 92, Sacramento, California, before me, Julie Stinnett, a Certified Shorthand Reporter, personally appeared:
DAVE THORNTON,
called as a witness herein, having been administered an oath in accordance with C.C.P. Section 2094, was examined and testified as follows:
---o0o--
(Exhibits 1-7 were marked for identification.)
EXAMINATION BY MR. HAPPE
Q. Would You please state your full name.
A. David Thornton, T-h-o-r-n-t-o-n.
Q. Mr. Thornton, what is your professional address?
A. It's 1434 Howe Avenue, H-o-w-e, Sacramento, California 95825.
Q. Have you ever given a deposition before?
A. Yes.
Q. Just to familiarize you with some of the ground rules, if if you don't hear me or understand my question, please let me know.
A. Okay.
Q. If you don't understand a question, just please let me know that. If you have to take a break, please let us know.
You have been sworn to tell the truth. This deposition would be really the same as if you were testifying in a court of law.
Do you understand that?
A. Understood. Yes.
Q. What is your occupation, sir?
A. I'm the Executive Director of the Medical Board of California.
Q. And what does the Executive Director of the Medical Board of California do? What are your duties?
A.
Well, I am appointed by the board members.
There are 21 board members who are appointed by the governor.
Nineteen of them are
appointed by the
governor, two by the legislature here in California. They then, in
turn, appoint an executive
director, and I act as the person
delegated with their authority to run
the day-to-day operations of the Medical Board, the licensing
operations the enforcement operations
and our various programs. So
I have the delegated authority of the Board to perform those
duties.
Q. The Medical Board of California, then, is an entity of the state of California?
A. It is. It's under the umbrella of the Department of Consumer Affairs, and it is the state agency that licenses physicians and surgeons and disciplines those license.
Q. My next question was going to be what is the purpose of the medical board, and you have just explained that purpose?
A. I did .
Q. Okay. How long have you been the Executive Director for the Medical Board?
A. Approximately three years.
Q. And how long have you been employed by the Board?
A. Approximately 32 years.
Q.- Are you-familiar with an investigation by the Medical Board - when I Say ''Medical Board," I'm referring to the Medical Board of California throughout. So if you would please take that in consideration.
Are you familiar with the Medical Board's investigation of Kaiser Permanente Hospital in San Francisco and a couple of its administrators, Dr. Madvig and Alvarez?
A. Yes, I am.
Q. I'd like you to take a look at Exhibit 1, please.
A. Okay.
Q. Could you tell us what Exhibit 1 is.
A. Exhibit 1 is a Settlement Agreement of the imposition of violation (sic) and civil penalty against Mr. Alvarez, Frank Alvarez, and Dr. Madvig, Philip R. Madvig, both employed by Kaiser Permanente, San Francisco.
Q. And Exhibit 1 attaches and incorporates into it two exhibits, it appears, Exhibit A and Exhibit B; is that correct?
A. That's correct.
Q. And what is Exhibit A attached to Exhibit 1?
A. Exhibit A is the Notification of Violation and Imposition of Civil Penalty that was served on Mr. Alvarez and Dr. Madvig.
Q. And what is Exhibit B attached to Exhibit 1?
A. Exhibit B is the Notice of Defense and Special Defense.
Q. It's my understanding that Exhibit 1 is a public document; is that true?
A. That's correct.
Q. And Exhibit 1 is a certified public document certified by the records custodian of the Medical Board of California?
A. Correct.
Q. And does that certified public document that we have identified as Exhibit 1 include Exhibits A and B? In other words, when we say that Exhibit 1 is a public document, is that also true of the exhibits that are attached to Exhibit 1?
A. Yes.
Q. At this time, I'd like you to take a look at Exhibit 2, and I would ask you to identify that document, please.
A. This is the Board's Decision -- the Medical Board's Decision in the matter of the accusations filed against Michael T. Mcenany, M-c-e-n-a-n-y, M.D., Case Number 03-1997-71927. The decision was ordered July 7th, 1998, with an effective date of July 14th, 1998.
Q. Attached to Exhibit 2 is Exhibit A; is that correct?
A. Yes.
Q. Could you identify Exhibit A, please.
A. Exhibit A is a copy of the accusation filed against Dr. Mcenany. and an accusations is a -- an administrative charging document charging him with various violations in the Medical Practice Act.
Q. Is Exhibit 2 a public record in the State of California?
A. Yes.
Q. And Exhibit 2 also appears to be a certified public record; is that correct?
A. That's correct.
Q. And when and by whom was Exhibit 2 certified?
A. It was certified by Loretta Arroyo, A-r-r-o-y-o, records custodian. And it was certified on May 24th, 2007,
Q. Mr. Thornton, I'd like to go into a little more detail with respect to Exhibit 1.
A. Okay.
Q. When I say Exhibit 1, again, I'm referring to Exhibit 1 that includes as one document the exhibits that are attached thereto.
Do you understand that?
A. Yes.
Q. One more thing before I get to Exhibit 1. I'm sorry. Are you familiar with the investigation conducted by the Medical Board of California with respect to the accusations against Dr. Mcenany?
MR. COLWIN: Object to the form of the question.
Go ahead.
THE: WITNESS: Yes, I am familiar with it.
Q. (BY MR. HAPPE) In the Exhibit 2 it refers to Michael T. Mcenany. Do you know, has that individual also been referred to as Terry Mcenany?
A. I believe so, yes.
Q. And Dr. Mcenany was a cardiovascular or cardiothoracic surgeon in San Francisco between -- at least between the periods of 1993 --well, at some point in 1993?
A. Yes.
Q. With respect to Exhibit 1, what is your understanding of the reason for the investigation by the Medical Board of Mr. Alvarez and
Dr.Madvig?
MR. COLWN: Object to the form of the question. Also, foundation.
Go ahead.
THE WITNESS: We had received information -- "we" meaning the Medical Board, had received information that restrictions had been placed on Dr. Mcenany's license by Kaiser Hospital in San Francisco, and that those restrictions were not reported to the Medical Board as required by Section 805 of the California Business and Professions Code.
Q. (BY MR. HAPPE) - Does the Medical Board of California then do a thorough investigation?
MR. COLWIN: Object to the form of the question.
THE WITNESS: Yes.
Q. (BY MR. HAPPE) And I'd like to refer you to Exhibit A, page 2.
A. Exhibit 1 or A?
Q. The determination (sic) of violation.
MR. COLWIN: Are you referring, Michael, to Exhibit 1A?
MR. HAPPE: Yes.
MR. COLWIN: Okay.
Q. (BY MR. HAPPE) Are you with me there, Mr. Thornton?
A. Yes.
Q. Okay. Are the determination of violations that are identified in Exhibit I, Exhibit A attached thereto, in paragraphs 4 through 16 the findings made by the Medical Board of California as result of their investigation?
MR. COLWIN: Objection as to form with regard to the word "findings."
Go ahead.
THE WITNESS: Yes. The determination of violations was based on what we determined were violations as a result of our investigation.
Q. (BY MR. HAPPE) Those were findings made by the Medical Board of California that Dr. Madvig and Mr. Alvarez were entitled to admit or deny and raise a defense?
A. Well, they were in the form of a notice of violation, and, as such, they are allowed to raise a defense to defend themselves against those accusations.
Q. Those determination of violations were, in essence, findings that the Medical Board of California made as a result of the investigation?
MR. COLWIN: Objection to form.
Go ahead.
THE WITNESS: Yes .
Q. (BY MR. HAPPE) What were -- I'd like you to just go through, if you would, please, the specific findings that were made by the Medical Board as a result of its investigation.
MR. COLWIN: Objection to the form.
THE WITNESS: Okay. What we found was that sometime in late 1992, early 1993, that restrictions were placed on Dr. Mcenany's license - not -- strike that. Not on his license but on his ability to practice medicine at Kaiser in San Francisco, and the restrictions were in the form of the fact that he was not allowed to perform any surgeries unless he had an assistant surgeon there with him.
Q. (BY MR. HAPPE) Why is that a restriction on Dr. Mcenany's surgical privileges at Kaiser?
MR. COLWIN: Objection to form and foundation.
Go ahead.
THE WITNESS: Well, because of the way Section 805 reads, hospitals are required to report any restriction of staff privileges for a medical disciplinary cause of reason if those restrictions last more than 30 days. And by requiring that Dr. Mcenany have an assistant surgeon before he can perform any surgeries, the Medical Board deemed that as a restriction on his ability to practice Medicine at
that facility.
Q. (BY MR. HAPPE) Did the Medical Board determine that the restriction on Dr. Mcenany's privileges was necessitated as a result of concerns regarding his competency and concerns for patient safety?
MR. COLWIN; Objection to form and foundation.
THE WITNESS; I -- that was part of the findings of our investigation, yes.
Q. (BY MR. HAPPE) You mentioned Rule (sic) 805. Could you maybe step back for a moment and explain to us what Rule 805 is and how it applies to Kaiser and Dr. Mcenany?
A. Well, it's not a rule. It's a section of law. It's Section 805 of the California Business and Professions Code. And that section, as it was - the form it was in at that time in 1993, required the Chief of Staff and the Administrator of a hospital to report restrictions or the termination of staff privileges to the Medical Board within certain specified time periods. And these restrictions that were placed would be the result of a medical disciplinary cause or reason. In other words, they were placed on there because there was some concern about patient safety.
And let me give you an example of the type of restriction that probably wouldn't have to be reported to the Board, and that is if the physician failed to complete medical records at the hospital that didn't impact patient safety, that would not be a medical disciplinary cause of reason, even though his privileges were restricted.
Q. Okay. Dr. Mcenany has disputed that there was a restriction on his privileges, and he has classified it as just some temporary assistance for another doctor to assist him during a practice review or peer review that was taking place at Kaiser, and that it was not a restriction that needed to be reported.
Number one, do you and the Medical Board dispute that and why?
MR. COLWIN: Objection. Form, foundation.
Go ahead.
THE WITNESS: We do dispute that, and the reason is -- you have to look at the circumstance. Could Dr. Mcenany have practiced at the hospital without an assistant? And if the answer is yes, then it wouldn't be a reportable incident. But since our investigation found that he was required to have this assistant surgeon in order to practice at the facility, then that was a reportable incident.
Q. (BY MR.. HAPPE) And was the restriction that was found by the Medical Board confirmed by internal Kaiser Hospital documents?
MR. COLWIN: Objection to --
Q. (BY MR. HAPPE) Specifically, I'd like you to refer to Exhibits 3 and 4.
MR. COLWIN: Same objections.
THE WITNESS: Those two exhibits did help confirm our belief that there was a restriction in place that should have been reported.
Q. (BY MR. HAPPE) I'd like you to take a look at paragraph 7 of Notification of Violation.
Was there also a report by Dr. Bruce Blumberg that formed a basis for the Medical Board's conclusion that there was a risk to patient safety as a result of Dr. Mcenany's surgical performance in San Francisco in 1993?
MR. COLWIN: Objection. Hearsay and foundation.
Go ahead.
THE WITNESS: Well, as Dr. Blumberg found, there were some concerns for patient safety, and that there were two recent, unexpected patient deaths, a higher than expected mortality rate for Dr. -- he refers to him as, I think, "M" in this particular document -- Dr. Mcenany's patients, a higher incident of surgical complication, rough handling of tissues, a high incident of torn vessels, air locks (sic) and grafts that require lengthening or shortening, operating with inadequate assistance, scheduling cases in a manner that exceeds the threshold of his endurance and an episodic history of dysfunctional relationships with colleagues, both within and outside his own department.
Does that answer your question?
Q. (BY MR. HAPPE) Yes.
Did Dr. Blumberg find anything else with respect to Dr. Mcenany's surgical performance and his behavior at Kaiser?
MR. COLWIN: Objection as to the word -- object to the form of the question, specifically with regard to the word "find."
Go ahead.
THE WITNESS: I think he found that he had characterized it as a forceful personality; one who was unwilling to accept or seek the advice of his colleagues, and also that his behavior on at least two occasions jeopardized patient care.
Q. (BY MR. HAPPE) Were there also concerns raised by members of the cardiovascular staff and physicians from the anesthesiology department concerning Dr. Mcenany --
MR. COLWIN: Object - I'm sorry.
[BY MR. HAPPE) -- in late 1992?
MR. COLWIN: Objection. Hearsay. Foundation and form.
Q. (BY MR. HAPPE) I'm referring to paragraph 6.
A. You are referring to which paragraph? I'm sorry.
MR. COLWIN: Six.
Q. (BY MR. HAPPE) Paragraph 6.
A. Six. Okay. Yes.
That was one of our findings.
Q. At what point did the Medical Board of California find that the -- through its investigation that the restriction on Dr. Mcenany's privileges was imposed?
MR. COLWIN: Same objections.
Go ahead.
THE WITNESS: Well, I don't know that we identified an exact date, but we did identify they were clearly in place early March of 1993.
Q. (BY MR. HAPPE) I take it, then, the fact that Dr. Mcenany was not allowed to perform any surgery without another senior staff surgeon acting as his first assistant was something that was extraordinary?
MR. COLWIN: Object to the form of the question, and assumes facts not in evidence.
Go ahead.
Q. (BY MR. HAPPE) I mean extraordinary in the sense it required to be reported and was out of the ordinary.
MR. COLWIN: Same objections.
THE WITNESS: Well, I don't know if I would classify it as extraordinary, but it was a restriction on his privileges at that facility
which required reporting to the Medical Board.
Q. (BY MR. HAPPE) Was there any doubt by the Medical Board that, in fact, Dr. Mcenany's surgical privileges were restricted at Kaiser Hospital in 1993?
MR. COLWIN: Objection as to form. Foundation.
Hearsay.
Go ahead.
THE WITNESS: There was no doubt.
Q. (BY MR. HAPPE) As I understand it under Rule 805 of the Business and Professions Code, there are two aspects to that: One is it's required to report a restriction if it's been imposed for more than 30 days during a 12-month period for a medical disciplinary reason; and, two, an 805 report is required to be completed if a physician resigns before the completion of or during an investigation
indicating a medical disciplinary cause or reason; is that correct?
MR.. COLWIN: Objection. Compound.
Go ahead,
THE WITNESS: You are correct on both counts. Section 805 is pretty explicit in that if a physician resigns while there is an investigation or upon the notification of an investigation, that's a reportable incident.
The reason for that is that individual hospitals have the ability to restrict or remove a physician from their staff, but that doesn't protect the public. That physician can then move to another hospital, get staff privileges and continue to practice and present a harm to the public.
So the Medical Board is key to getting that information so that we can do an investigation and place restrictions or revoke the physician's license, if necessary, and that's the reason 805 -- Section 805 is in existence.
Q. (BY MR. HAPPE) Were the restrictions on Dr. Mcenany's privileges ever terminated before he resigned his employment at Kaiser?
MR. COLWIN: Objection to form and foundation. Go ahead.
THE WITNESS: Not that I'm aware of.
Q. (BY MR. HAPPE) Okay. In its investigation, did the Medical Board of California find any evidence that the restriction had been lifted before Dr. Mcenany resigned?
A. No.
Q. And you mentioned earlier that part of the violation of Kaiser was the failure to report the restriction. Was there also a violation of 805 as a result of failing to file notice of the investigation of Dr. Mcenany before he resigned his employment and left California?
MR. COLWIN: Objection. Form and foundation.
Go ahead.
THE WITNESS: I'm not sure I understand your question. They are not - the hospital is not required to report an investigation to us. They are only required to report if there are restrictions placed while that investigation is in progress. They are required to report if the physician resigns while an investigation is in progress.
Q. (BY MR. HAPPE) Okay. I guess that's what I was referring to.
Was there a violation of the second aspect there that you just mentioned?
MR. COLWIN: Objection. Foundation.
Go ahead.
THE WITNESS: I think you are asking me if there was really two reportable incidents, and--
MR. HAPPE: Yes.
THE WITNESS: -- the answer would be yes. Once 30 days elapsed when those restrictions were placed on Dr. Mcenany requiring him to have an assistant surgeon, there should have been an 805 report filed at that point.
Also, there should have been an 805 report filed once he resigned while the investigation was still in progress.
So there could have been two incidents that should have been reported to the Medical Board.
Q. (BY MR. HAPPE) Okay. The second incident, is that the requirement that is identified in Section 805 (b) , 4 (a), as identified in paragraph 4 of the Medical Board findings?
A. Yes.
Q. And is the purpose of that provision to prevent a bad doctor from bouncing from state to state?
MR.COLWIN: Objection to form.
THE WITNESS: No. It's not really designed to keep them from bouncing from state to state. It's more to keep them from bouncing from one hospital to the next in California--
MR. HAPPE: Okay.
THE WITNESS: - without some notice to the Medical Board.
Q. (BY MR. HAPPE) Do hospitals in another state have access to determine whether a physician who has resigned
resigned in the middle of an ongoing investigation, to your knowledge?
A. I don't know. Restrictions are required to be reported by the hospital to the National Practitioner Data Bank, but I don't know if other states have access to that information. They may, but I'm no expert on the data bank.
Q. Okay. In any event, that reporting requirement is to prevent a doctor from bouncing from hospital to hospital, then?
A. Yes. Let me -- let me modify that. It doesn't really prevent them from bouncing from hospital to hospital. But what it does is it gives the Medical Board notice that there is a problem with this physician, gives us the opportunity to investigate. Also puts the other hospitals on notice, because that 805 report is on file. Should that physician seek staff privileges, hospitals are required to check with the Medical Board before they grant those staff privileges to see if any 805 reports are on file.
So I just want to make sure that that's clear, that it doesn't prevent them, but it does put the other facilities and the Medical Board on notice.
Q. I understand. Thank you for that clarification.
Did the Medical Board of California become aware of a cover-up of the restriction?
MR. COLWIN: Objection to the form of the question and also foundation.
Go ahead.
Q. (BY MR. HAPPE) ,Or a -- did the Medical Board become aware at some point of a cover-up between Dr. Mcenany and Kaiser with respect to avoiding the filing of an 805 report?
MR. COLWIN: Same objections.
THE WITNESS: We did become aware that there was an effort -- what we -- what I would classify as a cover-up or a failure to report that was facilitated by Dr. Mcenany and his lawyer with Kaiser; that if he resigned, that there wouldn't be any reporting to the Medical Board.
Q. (BY MR. HAPPE) Mr. Thornton, in Exhibit A to Exhibit 1, there is reference in paragraph 12 am 13 to some correspondence between the attorneys for Kaiser Hospital in San Francisco and Dr. Mcenany's attorney.
Do you see that in Exhibit 1A?
A. Yes.
Q. Are those letters identified in Exhibits 5 and 6 to this deposition? Could you take a look at those, please.
MR. COLWIN: Here you go.
THE WITNESS: Exhibit Number 5 is the June 18th letter -- June 18th, 1993, letter from Dr. Mcenany's attorney to Kaiser. That is identified as Exhibit 5.
The June 25th, 1993, letter in paragraph 13 from Mr. William Patrick, Kaiser Vice President, to Dr. Mcenany's lawyer is the letter identified as Exhibit 6.
Q. (BY MR. HAPPE) Do Exhibits 5 and 6 evidence the cover-up engaged in by Dr. Mcenany and Kaiser?
MR. COLWIN: Objection to form.
Go ahead.
Also, hearsay.
Go ahead.
THE WITNESS: It's my belief and the Medical Board's belief that they do.
Q. (BY MR. HAPPE) Is it your belief that that was fraudulent, the activity on the part of Dr. Mcenany and Kaiser?
MR. COLWIN: Objection to foundation, form.
THE WITNESS: I -- I believe it was fraudulent activity. Whether it was on Dr. Mcenany's part or his lawyer's part with Dr. Mcenany's knowledge, I can't answer that aspect of it. But we believe -- the Medical Board believes that these letters evidence a - an attempt to cover up the fact that Dr. Mcenany was resigning with restrictions in place. And that, you know, contrary to Section 805 of the Business and Professions Code, those restrictions, that information, would not be reported to the Medical Board.
Q. (BY MR. HAPPE) Do those letters, Exhibits 5 and 6, evidence a conscious disregard of the requirement in Rule 805?
MR. COLWIN: Objection. Form and foundation. In addition, the question is asking this gentleman, this witness, to enter into the mind of Dr. Mcenany as well as other individuals who drafted and received these documents.
Go ahead.
THE WITNESS: I would agree with counsel that I can't -- I can't comment on that because I don't know if it was a conscious effort on their part to disregard the law. I think the documents pretty much - pretty well speak for themselves .
Q. (BY MR. HAPPE) I'd like you to take a look at Exhibit B that's attached to Exhibit 1. That is the defense that was asserted by the administrators at Kaiser Permanente in San Francisco.
A. Yes.
Q. And is there anywhere in that defense where Mr . Alvarez and Dr. Madvig specifically denied that there was a restriction on Dr. Mcenany's privileges? /Again, that's a specific denial of the restriction.
A. Well, a specific denial that there were restrictions, I don't see that present in here, no.
Q. Okay. According to the notification, the maximum penalty for the violation -- Kaiser's violation for failure to file the 805 report was a fine of $20,000; is that correct?
A. No. The maximum penalty is $10,000 that can be applied to both individuals.
Q. Okay. 10,000 for each violation, there being two violations would be $20,000?
A.. Correct.
Q. And what was the outcome of the proceedings against Mr. Alvarez and Dr.Madvig?
A. Well, that's contained in Exhibit 1 starting with, I guess, paragraphs 1 through 8; and do you want me to go through that or --
Q. Well, it appears to me that they decided not to mount any kind of vigorous defense but agreed to pay a fine of $19,900; is that correct?
MR. COLWIN: Object to the form and characterization of the question.
Go ahead.
THE WITNESS: Specifically the respondents, which would be Dr. Madvig and Mr. Alvarez, stated their understanding of Section 805 and the requirements of 805, that they maintained that they never intentionally failed to file a required report with the Medical Board; that they regularly seek out the advice of counsel concerning the need to file 805 reports; that they agreed to prepare a
written document regarding the filing of 805 reports which will identify the individual and so on in paragraph 4; and that they also agree to pay the Medical Board of California the amount of $19,900.
Q. (BY MR. HAPPE) And that's just $100 short of the maximum fine they would have had to pay?
A. Yes.
Q. Based on your experience as an employee of the Medical Board of California and in being exposed to matters 5 like this where notification of violations are asserted by the Board, if one has a solid defense, do you find that they would typically engage in a settlement agreement such as Exhibit l?
MR. COLWIN: Objection to form. Also, relevancy.
Go ahead.
THE WITNESS: I've been involved in a number of failure to file 805 reports over the years and have been involved in settlement negotiations with those failures to file, and I find that if the facility and the individuals believe that they have a strong defense, that they will push the matter to trial.
I don't know if I can answer it any better than that. I can't get into the minds of the --
Q. (BY MR. HAPPE) No. That's fine.
A. Okay.
Q. I just want to clarify one thing. In Exhibit 1 you refer to "Dr. M." That refers to Dr. Mcenany; is that correct?
A. Yes.
Q. Now, Mr. Thornton, if you would, please, take a look a.t Exhibit 7.
A. Okay.
Q. And I'll represent to you that that is a true and accurate copy of the Luther Hospital Application for Appointment to the Medical Staff completed by Dr. Mcenany that we have obtained through discovery in this matter.
I'd like you to take a look at page 2 in the middle of that page in reference to "Additional Information."
Do you see that portion of the document?
A. Yes.
Q. Dr. Mcenany was asked in that application to answer this question: "My prior staff memberships have been revoked, suspended, reduced, voluntarily withdrawn, or not renewed at all," and Dr. Mcenany responded by checking "No."
Do you see that?
A. Yes, I do.
Q. Was that a truthful response?
MR. COLWIN: Objection. Foundation. Again, this gentleman can't go into the mind of Dr. Mcenany.
Q. (BY MR. HAPPE) Let me clarify that for you, Mr. Thornton.
With respect to the findings that the Medical Board of California made concerning the restriction as a result of its investigation, is
Dr. Mcenany's response to that question truthful?
MR. COLWIN: Same objections.
THE WITNESS: Based on the fact that this was signed by Dr. Mcenany in July of 1993, it's my opinion that that is not a truthful answer based on our investigation.
Q. (BY MR. HAPPE) Mr. Thornton, is there any doubt in your mind that Dr. Mcenany's privileges were restricted and required to be disclosed in an 805 report in 1993 while Dr. Mcenany was practicing in San Francisco, California?
MR. COLWIN: Objection. It's been asked and answered. Also, it's irrelevant and also foundation.
Go ahead.
THE WITNESS; No.
MR. HAPPE: Thank you. Those are all the questions I have. Mr. Colwin may have some questions for you.
MR. COLWIN; I do.
EXAMINATION BY MR. COLWIN
Q. Mr. Thornton, you were asked to bring with you today certain documents pertaining to the Medical Board of California's investigation of the two individuals from Kaiser Permanente as well as Dr. Mcenany, correct?
A. Do you mean the notice of the deposition included in that?
Q. Yes.
A. Yes, I was.
Q. Did you bring with you today the documents that were requested?
A. No.
Q. And why is it that you didn't?
A. Because the only documents that I advised Mr. Happe that I would release are public documents.
Q. Okay. And what specific public documents did you bring with you today?
There are a number of documents here that have been marked as exhibits, correct?
A. Correct.
Q. Could you tell us specifically which of those that have been marked today as exhibits are public documents that you can release?
A. Exhibit 1 and Exhibit 2, documents
Q. These are the only documents that you can release?
A. That's correct.
Q. Okay. I assure that the MBC's file with regard to the Alvarez/Madvig investigation consists of considerably more than Exhibit Number, 1?
A. Yes.
Q. Okay. And I assume that the MBC's file with regard to Dr. Mcenany consists of considerably more than Exhibit Number 2?
A. Correct.
Q. Now, I take it you cannot tell us what is in those files today, specifically?
A. I can't. No, I can't.
Q. Why is that?
A. Well, I don't -- I have not reviewed the complete file. I know generally what's in an investigation file, but specifically, each and every document that is in this file, no, I can't tell you.
Q. Okay. Let me ask you this: Did you review the MBC's file with regard to the Madvig/Alvarez investigation before coming here today?
A. Only the documents that I have in front of me.
Q. Okay. And what about the MBC's file with regard to Dr. Mcenany, did you review that before coming here today in order to prepare yourself for the deposition?
A. No.
Q. Have you ever reviewed either one of those files in detail?
A. I have in the past, yes.
Q. When would you have done that most recently?
A. Probably the late 1990s, early 2000.
Q. Okay.
A. Somewhere in that area.
Q. At least seven years ago, perhaps longer?
A. Yes.
Q. Now, as I understand it, although you are the Executive Director today of the MBC, you were not back at the time of the Alvarez/Madvig and the Mcenany investigations, true?
A. Correct.
Q. And you also were not the investigator who was responsible for those two investigations, true?
A. True.
Q. There was an individual from the MBC who was responsible for those investigations, true?
A. Yes.
Q. In addition to obtaining some documents from Kaiser Permanente, the investigator, Mr. Ball, interviewed a number of witnesses, didn't he?
A. Yes.
Q. And you -- strike that.
As a result of those interviews and conversations, can we assume there are probably either some statements and/or memos with regard to what has been said by these witnesses?
A. There would be statements. There would be an investigation report prepared by Mr. Ball that summarizes the statements of those witnesses and documents.
Q. And those are not here in front of us today, are they?
A. No, they are not.
Q. So if I wanted to cross-examine you today with regard to the detailed basis for the MBC's position with regard to those investigations, I cannot do that, can I?
MR. HAPPE: Okay. Objection..
THE WITNESS; No.
MR. HAPPE: Calls for state of mind. Speculation.
(BY MR. COLWIN) Your answer was --
I'm sorry. Were you finished, Michael?
MR. HAPPE: Yes.
Q. (BY MR. COLWIN) Your answer was, no, I cannot cross-examine you because you don't have the documents here today?
A. No, I don't. You are correct.
Q. I am correct, I cannot cross-examine you?
A. Not on those documents.
Q. Okay. I can't cross-examine you -- the only thing that I can cross-examine you today -- with regard to today is the accusations and the notification of civil penalty, true, and the other documents that are attached?
A. Documents - right. The exhibits that are in front of us.
Q. Okay. Again, Exhibits 1 and 2 are just a fraction of the documents that are in the Medical Board's files with regards to those two proceedings, true?
A. True.
Q. In fact, although there are some references in the notification of civil penalty and the accusation to some specific documents, we don't -- you did not produce today any of the documents that were considered by the Medical Board in reaching its conclusions or its allegations, true?
A. True.
MR. HAPPE: Objection. That misstates.
MR. COLWIN: Okay.
MR. HAPPE: David, the letters and the two memos are specifically referenced.
MR. COLWIN; I indicated in my question that the accusation and the notification of civil penalty refer to those documents, but Mr. Thornton did not produce those documents.
Q. (BY MR. COLWIN) Is that true?
A. That's true.
Q. Okay. And you cannot produce those documents, true?
A. True.
Q. By California law or -
A. True
Q. -- administrative --
A. Right.
Q. Okay. Now, any information and conclusions that you have reached individually, any opinion that you have provided today, are based upon essentially double hearsay. In other words, you -- you did not investigate this matter yourself, did you?
A. No, I did not.
Q. And you have not reviewed the documents that form the basis for the Medical Board's opinions or conclusions in their entirety, have you?
MR. HAPPE: Objection. Vague and ambiguous.
Q. (BY MR.COLWIN) Go ahead.
A. That's correct, I have not.
Q. Okay. And to the extent that you have reviewed some of the documents, you have not done that for at least seven years, true?
A. True.
MR. HAPPE: Objection. David, four of the documents are right on the table.
MR. COLWIN: I'm talking about -- I'm sorry. I'll clarify that.
Q. (BY MR. COLWIN) You have not reviewed the - with the exceptions of Exhibits 1 and 2, you have not reviewed the investigation documents in at least seven years, true?
MR. HAPPE: Objection. Misstates.
David, Exhibits 3, 4, 5 and 6 are on the table. 3 He's reviewed them this morning in the course of the deposition.
Q. (BY MR. COLWIN) You can answer. Go ahead.
A. Well, I'm confused, because I have reviewed some of the documents that would have been in the file, the documents that Mr. Happe just referred to, and I have reviewed those this morning. So as recent as this morning, I reviewed some of the documents that are contained in our investigation file, although I did not produce these documents. I don't -- I would have to ask Mr. Happe where he obtained those, because he didn't obtain them from the Medical Board.
Q. Okay. Have you reviewed -- for example, have you ever reviewed, to the test of your recollection, Dr. Mcenany's response? I don't mean the formal response but the response, either from him or through his attorney, to the allegations that made back in 1996 and 1997?
MR. HAPPE: Objection. Vague and ambiguous.
What allegations are you referring to? The failure to report the 805 or the accusations in the -- accusations specifically against Dr. Mcenany?
MR.COLWIN: Both.
THE WITNESS: Have I reviewed his response to either of those charges ... and allegations? No.
Q. (BY MR. COLWN) Okay. Let's talk a little bit about your role, if any, back in 1996 and 1997 with regard to these two proceedings.
Did you have any formal role with regard to the Madvig/Alvarez proceeding?
A. Yes.
Q. What was that?
A. At the time I was a supervising investigator. I was in charge of the Board's Disciplinary Coordination Unit, which is the unit that handles and processes and serves all of the legal documents, including the -- would include all of the documents contained in Exhibit l.
Q. Okay.
A. So those documents are prepared by our lawyer, the Deputy Attorney General who's assigned to the matter. They are -- I'm going to give you an idea of the process.
Q. Sure. 'That's fine.
A. The process is that then those legal documents are forwarded to our headquarters office here in Sacramento to the Discipline Coordination Unit. They are prepared for the signature of the Executive Director. And once that's done, then those documents are served on the parties.
The same would be true of Exhibit Number 2, the accusation, which is Exhibit 2A, I believe, is processed through the unit that I was in charge of.
And regularly I reviewed all the documents as they came through that were processed by the analysts in that unit. So that's my involvement in it and my familiarity with the case.
Q. Okay. Let's talk a little bit further about procedure with regard - specifically with regard to these two letters, that is, the Madvig/Alvarez letter and the Mcenany letter.
Now, in both of those cases there were formal documents filed by the MBC with regard to one against Dr. Madvig and Mr. Alvarez and one against Dr. Mcenany,
Correct?
A. Correct.
Q. And, basically, what those documents were were similar to complaint that would be filed in an administrative proceeding, true?
A. True.
Q. There are formal names given to those documents. Basically what they amount to are complaints, true?
A. You could make the analogy that they are similar to a criminal complaint. They are charges that have to be proven.
Q. Sure. What they represent are allegations that are being made by the Medical Board of California against Alvarez and Madvig and Dr. Mcenany, true?
A. True.
Q. In fact, the settlement agreements that were reached with regard to both of those matters refer to allegations that were being made by the Medical Board of California against those three individuals, true?
A. Just a moment. Yes.
Q. Okay. And although you have -- or Attorney Happe has phrased a number of questions in terms of "findings by the Medical Board," the fact of the matter is there has never been a judicial or quasi judicial finding of any kind with regard to Dr. Mcenany or Dr. Madvig or Mr. Alvarez in these matters; isn't that true?
A. I'm not understanding. We have - if you mean did it go to trial and we proved the charges at trial, no. That did not happen. But there was a settlement in both of them; one with Dr. Mcenany surrendering his license based on the fact that there were charges pending at the time and the settlement that we have already talked about in the Madvig/Alvarez--
Q. I understand that.
A. I guess that's what I'm saying. I don't understand your question. Does it relate to having gone to trial and prove the charges?
Q. Yes.
A. No, that didn't happen.
Q. Okay. All right. The reason it didn't happen was because these charges were denied, and ultimately there was a settlement between the individuals and the Medical Board of California, true?
MR. HAPPE: I object to the extent that the restriction was never specifically denied.
You can go ahead and answer.
THE WITNESS: I would say that that's true, that there were - Dr. Mcenany denied when we stipulated to surrender his license. I don't think there was a specific denial by Dr. Madvig and Mr. Alvarez.
Q. (BY MR. COLWIN) Okay. Let's take a look at Exhibit Number 1, and I believe it is 1B, the notification (sic) of Defense that was filed by Kaiser Permanente.
Do you have that?
A. Yes.
Q. Okay. Okay. On the second page of the Notice of Defense and Special Defense, Kaiser specifically denies the allegations contained in the notice (sic) of Violation and Imposition of Civil Penalty, true?
A. True.
Q. Okay. So they .... have denied all of the allegations made by the Medical Board of California, true?
A. You didn't finish the sentence on that: " ... and request a hearing."
Q. Okay.
A. So at some point they could have had a hearing on this matter, and they chose not to, and there was a settlement. This was an initial document that was filed by them basically denying the charges. You are right.
Q. Okay.
A. This was a Notice of Defense.
Q. Okay. Mr. Happe asked some questions before, and you just made some reference to the fact that Kaiser did not specifically deny that there was a restriction, and, in fact, Kaiser did deny the allegations made by the Medical Board, didn't it?
A. Yes.
Q. Okay. And they did request a hearing, true?
A. Yes, they did.
Q. Okay. And if it went to a hearing, the Medical Board of California would have been -- would have had the burden of proof, true?
A. Yes.
Q. Just like a civil case or a criminal case, true?
A. Yes.
Q. And the burden of proof in that kind of a matter is much higher than it is in a civil matter, isn't it?
MR. HAPPE: Objection. Calls for a legal conclusion. Competency. 1 don' t think he's required to answer a question like that that calls for a legal conclusion.
Q. (BY MR. COLWIN) Well, the truth is, in a matter such as this, the burden of proof for the Medical Board of California is clear and convincing evidence as opposed to ... preponderance of evidence, true?
A. There is two different standards. On the civil penalty, it's preponderance. On the accusation against Dr. Mcenany for - against his medical license is clear and convincing.
Q. Okay. If this matter -- the proceeding against Dr. Madvig and Mr. Alvarez was ultimately settled, true?
A. True.
Q. And Kaiser Permanente consistently denied that there was ever a restriction, true?
MR. HAPPE: Objection. Foundation.
THE WITNESS: I -- I don't know the answer to that question, whether they consistently denied or at some point -- I'd have to go back and look at the settlement agreement part of it. But by using the term "consistently denied," I don't know what that means.
Q. (BY MR. COLWIN) Okay. Well, can you produce a document today in which Kaiser admitted that there was a restriction?
A. NO.
Q. Do you know of such a document?
A. No.
Q. As far as you know, no such document exists, true?
A. As far as I know, that's true.
Q. Okay. Now, although you feel strongly about the Medical Board of California's position, the truth is, if this matter went to a hearing, evidence would be put on by both sides, and there was some risk to both sides that one or the other would lose, true?
A. True.
Q. Including the Medical Board of California. There was the possibility that if this matter went to trial the Medical Board could lose?
MR. HAPPE: Objection to the term "possibility."
You want to put a percentage on that or just to the extent that anything in the world is possible?
Q. (BY MR. COLWIN) Is that true?
A. That would be my response, anything in the world is possible.
Q. The truth is, any time one of these matters goes to trial, there is some risk to both sides, true?
A. Yes.
Q. And going back to one of my earlier questions, there has never been a finding by a judge or a jury that, in fact, there was a restriction, true?
MR. HAPPE: Objection. Asked and answered.
You can go ahead.
THE WITNESS: True.
Q. (BY MR. COLWN) And with regard to Dr. Mcenany, the proceeding against him was also settled; is that true?
A. That's true.
Q. And in his Settlement Agreement, it specifically indicates that he denied the accusations or allegations ,that were being made against him, true?
A. That's part of what he -- he stated when settling the case. He also indicated that should he ever reapply for license in California, then the matters would be deemed true.
Q. I understand that, but --
But, specifically, he did deny the charges.
That's paragraph 10 of Exhibit 2.
Q. And so Dr. Mcenany, during the investigation and through the settlement of this matter, denied the allegations that were being made against him, true?
MR. HAPPE: Object to the extent it misstates. You can answer.
THE WITNESS; My answer is is that in this document, Exhibit Number 2, paragraph 10, he specifically denies the allegations and the accusations,
Q. (BY MR. COLWIN) Okay, Now, let's talk a little bit about the alleged restriction. First of all, is there a statute or some administrative code -- administrative code provision in California that defines the word "restriction"?
MR. HAPPE: I object to the form of the question, specifically the term alleged "restriction."
You can go ahead and answer, if you can, sir.
Q. (BY MR. COLWIN)' Well, let's deal with that specific issue.
The truth of the matter is that because there was no judicial determination as to whether the allegations were true, the Medical Board's opinion with regard to the restriction was nothing more than an allegation, true?
A. It was an allegation, that's true.
Q. Okay. And so my use of the term "alleged restriction" is a fair characterization of that term, true?
MR. HAPPE; Objection. Form of the question. Foundation.
You can go ahead and answer.
THE WITNESS: I think that that's probably a fair statement, that, you know, the Medical Board believed that there was a restriction of his ability to practice medicine at that facility, but that would have been an alleged, you know -- I guess you could characterize that as alleged,
Q. (BY MR. COLWIN) Okay. And so going back to my earlier question, is there a state statute that defines the word "restriction"?
MR.HAPPE: Object on foundation.
You can answer, if you can.
THE WITNESS: I don I t know how Section 805 read at the time in 1993. I believe it currently includes a definition of "restriction."
Q. (BY MR. COLWIN) Okay. So are you aware whether the -- whether Section 805 or any other California statute back in 1993 defined the word "restriction"?
A. I'm not aware of any statute that defined that. I believe there was case law that defined that, but I don't specifically -- what that -- I can't quote you the citation.
Q. As you sit here today, do you know -- can you tell me what the specific definition of the word "restriction" was back in 1993 under California law?
A. No, I can It.
Q. And can you tell me with certainty that there was a definition of the word "restriction" under California law in 1993?
A. No, I can't.
Q. Was there in 1993 a definition of the word "restriction" that had been adopted by the Medical Board of California, that you are aware of?
A. Not that I'm aware of.
Q. With regard to the alleged restriction, you do know that Dr. Mcenany during the practice review in 1993 was never required to obtain authorization or permission before operating on any patient, true?
MR. HAPPE: Objection. Foundation.
THE WITNESS: It Is my understanding that that's correct, a1though he was required to have an assistant surgeon.
Q. (BY MR. COLWIN) And with regard to your use of the word "requirement," and I believe earlier you referred to the word imposed, Kaiser took the position that this use of an assistant was not imposed on Dr. Mcenany but rather it was something that he voluntarily agreed to, true?
MR, HAPPE: Objection. Misstates.
THE WITNESS: If that was Kaiser's position, then they should have litigated this matter instead of settling it.
MR. COLWIN: I'll move to strike the answer as not being responsive.
THE WITNESS: But I think it is responsive.
Q. (BY MR. COLWIN) But Kaiser's position was -
A. I don't know what Kaiser's position was.
Q. Okay. And there has never been a finding that -
strike that.
You don't know what Kaiser's position was as to whether this was imposed or a voluntary matter on the part of Dr. Mcenany?
A. I know it was not a voluntary matter on the part of Dr. Mcenany. It was a limitation restriction that was imposed by Kaiser that if he was going to do surgeries, then he had to have an assistant surgeon. They didn't tell him he couldn't do surgeries. That's correct. But that is a limitation or a restriction on his ability to practice.
Q. But getting back to this issue of whether the use of an assistant was imposed on him and was a requirement, Kaiser has taken a position that while there is some evidence that the use of an assistant was imposed upon Dr. Mcenany, in fact, it was not imposed upon him, true?
MR. HAPPE: Objection. Misstates. Vague and ambiguous. And, essentially, calls for this witness to speculate as to what Kaiser considered it.
But you can answer, if you can.
THE WITNESS: I'm not sure I can answer that, because if Kaiser believed that this wasn't an imposed restriction that should have been reported, then they -- my belief is that they would not have settled the matter and paid the Medical Board $19,900.
MR. COLWIN: Okay. Move to strike the answer as not being responsive.
Q. (BY MR. COLWIN) Do you know or do you not know whether it was Kaiser's position that the use of an assistant was imposed and required of Dr. Mcenany?
MR. HAPPE: Objection. Asked and answered.
THE WITNESS: I believe I have answered that question, and I -- my response is that if Kaiser did not believe that this was a restriction that was imposed on Dr. Mcenany, they would not have settled this matter and paid the Medical Board $19, 900 .
MR. COLWIN: Again, I move to strike as not being responsive.
Q. (BY MR. COLWIN) That's not my question.
A. I'm not understanding your question.
Q. Okay. It has been alleged by the Medical Board that the use of an assistant was a requirement for Dr. Mcenany's surgeries, true?
A. It has been alleged. that that restriction was a requirement, that if he didn't - if he didn't have an assistant, then he couldn't perform surgeries and that should have been reported to the Medical Board. That's the best response I can give you to that.
Q. I understand. '
But, on the other hand, Kaiser has denied, first of all, that there was a restriction, true?
A. That's true.
MR. HAPPE: Objection. Misstates.
The record shows that they entered a general denial of allegations but did not specifically deny the fact of the restriction.
You can go ahead and answer.
Q. (BY MR.Colwin) Kaiser
THE WITNESS: I've been involved in a number of failure to file 805 reports over the years and have been involved in settlement negotiations with those failures to file, and I find that if the facility and the individuals believe that they have a strong defense, that they will push the matter to trial.
I don't know if I can answer it any better than that. I can't get into the minds of the --
Q. (BY MR. HAPPE) No. That's fine.
A. Okay.
Q. I just want to clarify one thing. In Exhibit 1 you refer to "Dr. M." That refers to Dr. Mcenany; is that correct?
A. Yes.
Q. Now, Mr. Thornton, if you would, please, take a look a.t Exhibit 7.
A. Okay.
Q. And I'll represent to you that that is a true and accurate copy of the Luther Hospital Application for Appointment to the Medical Staff completed by Dr. Mcenany that we have obtained through discovery in this matter.
I'd like you to take a look at page 2 in the middle of that page in reference to "Additional Information."
Do you see that portion of the document?
A. Yes.
Q. Dr. Mcenany was asked in that application to answer this question: "My prior staff memberships have been revoked, suspended, reduced, voluntarily withdrawn, or not renewed at all," and Dr. Mcenany responded by checking "No."
Do you see that?
A. Yes, I do.
Q. Was that a truthful response?
MR. COLWIN: Objection. Foundation. Again, this gentleman can't go into the mind of Dr. Mcenany.
Q. (BY MR. HAPPE) Let me clarify that for you, Mr. Thornton.
With respect to the findings that the Medical Board of California made concerning the restriction as a result of its investigation, is
Dr. Mcenany's response to that question truthful?
MR. COLWIN: Same objections.
THE WITNESS: Based on the fact that this was signed by Dr. Mcenany in July of 1993, it's my opinion that that is not a truthful answer based on our investigation.
Q. (BY MR. HAPPE) Mr. Thornton, is there any doubt in your mind that Dr. Mcenany's privileges were restricted and required to be disclosed in an 805 report in 1993 while Dr. Mcenany was practicing in San Francisco, California?
MR. COLWIN: Objection. It's been asked and answered. Also, it's irrelevant and also foundation.
Go ahead.
THE WITNESS; No.
MR. HAPPE: Thank you. Those are all the questions I have. Mr. Colwin may have some questions for you.
MR. COLWIN; I do.
EXAMINATION BY MR. COLWIN
Q. Mr. Thornton, you were asked to bring with you today certain documents pertaining to the Medical Board of California's investigation of the two individuals from Kaiser Permanente as well as Dr. Mcenany, correct?
A. Do you mean the notice of the deposition included in that?
Q. Yes.
A. Yes, I was.
Q. Did you bring with you today the documents that were requested?
A. No.
Q. And why is it that you didn't?
A. Because the only documents that I advised Mr. Happe that I would release are public documents.
Q. Okay. And what specific public documents did you bring with you today?
There are a number of documents here that have been marked as exhibits, correct?
A. Correct.
Q. Could you tell us specifically which of those that have been marked today as exhibits are public documents that you can release?
A. Exhibit 1 and Exhibit 2, documents
Q. These are the only documents that you can release?
A. That's correct.
Q. Okay. I assure that the MBC's file with regard to the Alvarez/Madvig investigation consists of considerably more than Exhibit Number, 1?
A. Yes.
Q. Okay. And I assume that the MBC's file with regard to Dr. Mcenany consists of considerably more than Exhibit Number 2?
A. Correct.
Q. Now, I take it you cannot tell us what is in those files today, specifically?
A. I can't. No, I can't.
Q. Why is that?
A. Well, I don't -- I have not reviewed the complete file. I know generally what's in an investigation file, but specifically, each and every document that is in this file, no, I can't tell you.
Q. Okay. Let me ask you this: Did you review the MBC's file with regard to the Madvig/Alvarez investigation before coming here today?
A. Only the documents that I have in front of me.
Q. Okay. And what about the MBC's file with regard to Dr. Mcenany, did you review that before coming here today in order to prepare yourself for the deposition?
A. No.
Q. Have you ever reviewed either one of those files in detail?
A. I have in the past, yes.
Q. When would you have done that most recently?
A. Probably the late 1990s, early 2000.
Q. Okay.
A. Somewhere in that area.
Q. At least seven years ago, perhaps longer?
A. Yes.
Q. Now, as I understand it, although you are the Executive Director today of the MBC, you were not back at the time of the Alvarez/Madvig and the Mcenany investigations, true?
A. Correct.
Q. And you also were not the investigator who was responsible for those two investigations, true?
A. True.
Q. There was an individual from the MBC who was responsible for those investigations, true?
A. Yes.
Q. In addition to obtaining some documents from Kaiser Permanente, the investigator, Mr. Ball, interviewed a number of witnesses, didn't he?
A. Yes.
Q. And you -- strike that.
As a result of those interviews and conversations, can we assume there are probably either some statements and/or memos with regard to what has been said by these witnesses?
A. There would be statements. There would be an investigation report prepared by Mr. Ball that summarizes the statements of those witnesses and documents.
Q. And those are not here in front of us today, are they?
A. No, they are not.
Q. So if I wanted to cross-examine you today with regard to the detailed basis for the MBC's position with regard to those investigations, I cannot do that, can I?
MR. HAPPE: Okay. Objection..
THE WITNESS; No.
MR. HAPPE: Calls for state of mind. Speculation.
(BY MR. COLWIN) Your answer was --
I'm sorry. Were you finished, Michael?
MR. HAPPE: Yes.
Q. (BY MR. COLWIN) Your answer was, no, I cannot cross-examine you because you don't have the documents here today?
A. No, I don't. You are correct.
Q. I am correct, I cannot cross-examine you?
A. Not on those documents.
Q. Okay. I can't cross-examine you -- the only thing that I can cross-examine you today -- with regard to today is the accusations and the notification of civil penalty, true, and the other documents that are attached?
A. Documents - right. The exhibits that are in front of us.
Q. Okay. Again, Exhibits 1 and 2 are just a fraction of the documents that are in the Medical Board's files with regards to those two proceedings, true?
A. True.
Q. In fact, although there are some references in the notification of civil penalty and the accusation to some specific documents, we don't -- you did not produce today any of the documents that were considered by the Medical Board in reaching its conclusions or its allegations, true?
A. True.
MR. HAPPE: Objection. That misstates.
MR. COLWIN: Okay.
MR. HAPPE: David, the letters and the two memos are specifically referenced.
MR. COLWIN; I indicated in my question that the accusation and the notification of civil penalty refer to those documents, but Mr. Thornton did not produce those documents.
Q. (BY MR. COLWIN) Is that true?
A. That's true.
Q. Okay. And you cannot produce those documents, true?
A. True.
Q. By California law or -
A. True
Q. -- administrative --
A. Right.
Q. Okay. Now, any information and conclusions that you have reached individually, any opinion that you have provided today, are based upon essentially double hearsay. In other words, you -- you did not investigate this matter yourself, did you?
A. No, I did not.
Q. And you have not reviewed the documents that form the basis for the Medical Board's opinions or conclusions in their entirety, have you?
MR. HAPPE: Objection. Vague and ambiguous.
Q. (BY MR.COLWIN) Go ahead.
A. That's correct, I have not.
Q. Okay. And to the extent that you have reviewed some of the documents, you have not done that for at least seven years, true?
A. True.
MR. HAPPE: Objection. David, four of the documents are right on the table.
MR. COLWIN: I'm talking about -- I'm sorry. I'll clarify that.
Q. (BY MR. COLWIN) You have not reviewed the - with the exceptions of Exhibits 1 and 2, you have not reviewed the investigation documents in at least seven years, true?
MR. HAPPE: Objection. Misstates.
David, Exhibits 3, 4, 5 and 6 are on the table. 3 He's reviewed them this morning in the course of the deposition.
Q. (BY MR. COLWIN) You can answer. Go ahead.
A. Well, I'm confused, because I have reviewed some of the documents that would have been in the file, the documents that Mr. Happe just referred to, and I have reviewed those this morning. So as recent as this morning, I reviewed some of the documents that are contained in our investigation file, although I did not produce these documents. I don't -- I would have to ask Mr. Happe where he obtained those, because he didn't obtain them from the Medical Board.
Q. Okay. Have you reviewed -- for example, have you ever reviewed, to the test of your recollection, Dr. Mcenany's response? I don't mean the formal response but the response, either from him or through his attorney, to the allegations that made back in 1996 and 1997?
MR. HAPPE: Objection. Vague and ambiguous.
What allegations are you referring to? The failure to report the 805 or the accusations in the -- accusations specifically against Dr. Mcenany?
MR.COLWIN: Both.
THE WITNESS: Have I reviewed his response to either of those charges ... and allegations? No.
Q. (BY MR. COLWN) Okay. Let's talk a little bit about your role, if any, back in 1996 and 1997 with regard to these two proceedings.
Did you have any formal role with regard to the Madvig/Alvarez proceeding?
A. Yes.
Q. What was that?
A. At the time I was a supervising investigator. I was in charge of the Board's Disciplinary Coordination Unit, which is the unit that handles and processes and serves all of the legal documents, including the -- would include all of the documents contained in Exhibit l.
Q. Okay.
A. So those documents are prepared by our lawyer, the Deputy Attorney General who's assigned to the matter. They are -- I'm going to give you an idea of the process.
Q. Sure. 'That's fine.
A. The process is that then those legal documents are forwarded to our headquarters office here in Sacramento to the Discipline Coordination Unit. They are prepared for the signature of the Executive Director. And once that's done, then those documents are served on the parties.
The same would be true of Exhibit Number 2, the accusation, which is Exhibit 2A, I believe, is processed through the unit that I was in charge of.
And regularly I reviewed all the documents as they came through that were processed by the analysts in that unit. So that's my involvement in it and my familiarity with the case.
Q. Okay. Let's talk a little bit further about procedure with regard - specifically with regard to these two letters, that is, the Madvig/Alvarez letter and the Mcenany letter.
Now, in both of those cases there were formal documents filed by the MBC with regard to one against Dr. Madvig and Mr. Alvarez and one against Dr. Mcenany,
Correct?
A. Correct.
Q. And, basically, what those documents were were similar to complaint that would be filed in an administrative proceeding, true?
A. True.
Q. There are formal names given to those documents. Basically what they amount to are complaints, true?
A. You could make the analogy that they are similar to a criminal complaint. They are charges that have to be proven.
Q. Sure. What they represent are allegations that are being made by the Medical Board of California against Alvarez and Madvig and Dr. Mcenany, true?
A. True.
Q. In fact, the settlement agreements that were reached with regard to both of those matters refer to allegations that were being made by the Medical Board of California against those three individuals, true?
A. Just a moment. Yes.
Q. Okay. And although you have -- or Attorney Happe has phrased a number of questions in terms of "findings by the Medical Board," the fact of the matter is there has never been a judicial or quasi judicial finding of any kind with regard to Dr. Mcenany or Dr. Madvig or Mr. Alvarez in these matters; isn't that true?
A. I'm not understanding. We have - if you mean did it go to trial and we proved the charges at trial, no. That did not happen. But there was a settlement in both of them; one with Dr. Mcenany surrendering his license based on the fact that there were charges pending at the time and the settlement that we have already talked about in the Madvig/Alvarez--
Q. I understand that.
A. I guess that's what I'm saying. I don't understand your question. Does it relate to having gone to trial and prove the charges?
Q. Yes.
A. No, that didn't happen.
Q. Okay. All right. The reason it didn't happen was because these charges were denied, and ultimately there was a settlement between the individuals and the Medical Board of California, true?
MR. HAPPE: I object to the extent that the restriction was never specifically denied.
You can go ahead and answer.
THE WITNESS: I would say that that's true, that there were - Dr. Mcenany denied when we stipulated to surrender his license. I don't think there was a specific denial by Dr. Madvig and Mr. Alvarez.
Q. (BY MR. COLWIN) Okay. Let's take a look at Exhibit Number 1, and I believe it is 1B, the notification (sic) of Defense that was filed by Kaiser Permanente.
Do you have that?
A. Yes.
Q. Okay. Okay. On the second page of the Notice of Defense and Special Defense, Kaiser specifically denies the allegations contained in the notice (sic) of Violation and Imposition of Civil Penalty, true?
A. True.
Q. Okay. So they .... have denied all of the allegations made by the Medical Board of California, true?
A. You didn't finish the sentence on that: " ... and request a hearing."
Q. Okay.
A. So at some point they could have had a hearing on this matter, and they chose not to, and there was a settlement. This was an initial document that was filed by them basically denying the charges. You are right.
Q. Okay.
A. This was a Notice of Defense.
Q. Okay. Mr. Happe asked some questions before, and you just made some reference to the fact that Kaiser did not specifically deny that there was a restriction, and, in fact, Kaiser did deny the allegations made by the Medical Board, didn't it?
A. Yes.
Q. Okay. And they did request a hearing, true?
A. Yes, they did.
Q. Okay. And if it went to a hearing, the Medical Board of California would have been -- would have had the burden of proof, true?
A. Yes.
Q. Just like a civil case or a criminal case, true?
A. Yes.
Q. And the burden of proof in that kind of a matter is much higher than it is in a civil matter, isn't it?
MR. HAPPE: Objection. Calls for a legal conclusion. Competency. 1 don' t think he's required to answer a question like that that calls for a legal conclusion.
Q. (BY MR. COLWIN) Well, the truth is, in a matter such as this, the burden of proof for the Medical Board of California is clear and convincing evidence as opposed to ... preponderance of evidence, true?
A. There is two different standards. On the civil penalty, it's preponderance. On the accusation against Dr. Mcenany for - against his medical license is clear and convincing.
Q. Okay. If this matter -- the proceeding against Dr. Madvig and Mr. Alvarez was ultimately settled, true?
A. True.
Q. And Kaiser Permanente consistently denied that there was ever a restriction, true?
MR. HAPPE: Objection. Foundation.
THE WITNESS: I -- I don't know the answer to that question, whether they consistently denied or at some point -- I'd have to go back and look at the settlement agreement part of it. But by using the term "consistently denied," I don't know what that means.
Q. (BY MR. COLWIN) Okay. Well, can you produce a document today in which Kaiser admitted that there was a restriction?
A. NO.
Q. Do you know of such a document?
A. No.
Q. As far as you know, no such document exists, true?
A. As far as I know, that's true.
Q. Okay. Now, although you feel strongly about the Medical Board of California's position, the truth is, if this matter went to a hearing, evidence would be put on by both sides, and there was some risk to both sides that one or the other would lose, true?
A. True.
Q. Including the Medical Board of California. There was the possibility that if this matter went to trial the Medical Board could lose?
MR. HAPPE: Objection to the term "possibility."
You want to put a percentage on that or just to the extent that anything in the world is possible?
Q. (BY MR. COLWIN) Is that true?
A. That would be my response, anything in the world is possible.
Q. The truth is, any time one of these matters goes to trial, there is some risk to both sides, true?
A. Yes.
Q. And going back to one of my earlier questions, there has never been a finding by a judge or a jury that, in fact, there was a restriction, true?
MR. HAPPE: Objection. Asked and answered.
You can go ahead.
THE WITNESS: True.
Q. (BY MR. COLWN) And with regard to Dr. Mcenany, the proceeding against him was also settled; is that true?
A. That's true.
Q. And in his Settlement Agreement, it specifically indicates that he denied the accusations or allegations ,that were being made against him, true?
A. That's part of what he -- he stated when settling the case. He also indicated that should he ever reapply for license in California, then the matters would be deemed true.
Q. I understand that, but --
But, specifically, he did deny the charges.
That's paragraph 10 of Exhibit 2.
Q. And so Dr. Mcenany, during the investigation and through the settlement of this matter, denied the allegations that were being made against him, true?
MR. HAPPE: Object to the extent it misstates. You can answer.
THE WITNESS; My answer is is that in this document, Exhibit Number 2, paragraph 10, he specifically denies the allegations and the accusations,
Q. (BY MR. COLWIN) Okay, Now, let's talk a little bit about the alleged restriction. First of all, is there a statute or some administrative code -- administrative code provision in California that defines the word "restriction"?
MR. HAPPE: I object to the form of the question, specifically the term alleged "restriction."
You can go ahead and answer, if you can, sir.
Q. (BY MR. COLWIN)' Well, let's deal with that specific issue.
The truth of the matter is that because there was no judicial determination as to whether the allegations were true, the Medical Board's opinion with regard to the restriction was nothing more than an allegation, true?
A. It was an allegation, that's true.
Q. Okay. And so my use of the term "alleged restriction" is a fair characterization of that term, true?
MR. HAPPE; Objection. Form of the question. Foundation.
You can go ahead and answer.
THE WITNESS: I think that that's probably a fair statement, that, you know, the Medical Board believed that there was a restriction of his ability to practice medicine at that facility, but that would have been an alleged, you know -- I guess you could characterize that as alleged,
Q. (BY MR. COLWIN) Okay. And so going back to my earlier question, is there a state statute that defines the word "restriction"?
MR.HAPPE: Object on foundation.
You can answer, if you can.
THE WITNESS: I don I t know how Section 805 read at the time in 1993. I believe it currently includes a definition of "restriction."
Q. (BY MR. COLWIN) Okay. So are you aware whether the -- whether Section 805 or any other California statute back in 1993 defined the word "restriction"?
A. I'm not aware of any statute that defined that. I believe there was case law that defined that, but I don't specifically -- what that -- I can't quote you the citation.
Q. As you sit here today, do you know -- can you tell me what the specific definition of the word "restriction" was back in 1993 under California law?
A. No, I can It.
Q. And can you tell me with certainty that there was a definition of the word "restriction" under California law in 1993?
A. No, I can't.
Q. Was there in 1993 a definition of the word "restriction" that had been adopted by the Medical Board of California, that you are aware of?
A. Not that I'm aware of.
Q. With regard to the alleged restriction, you do know that Dr. Mcenany during the practice review in 1993 was never required to obtain authorization or permission before operating on any patient, true?
MR. HAPPE: Objection. Foundation.
THE WITNESS: It Is my understanding that that's correct, a1though he was required to have an assistant surgeon.
Q. (BY MR. COLWIN) And with regard to your use of the word "requirement," and I believe earlier you referred to the word imposed, Kaiser took the position that this use of an assistant was not imposed on Dr. Mcenany but rather it was something that he voluntarily agreed to, true?
MR, HAPPE: Objection. Misstates.
THE WITNESS: If that was Kaiser's position, then they should have litigated this matter instead of settling it.
MR. COLWIN: I'll move to strike the answer as not being responsive.
THE WITNESS: But I think it is responsive.
Q. (BY MR. COLWIN) But Kaiser's position was -
A. I don't know what Kaiser's position was.
Q. Okay. And there has never been a finding that -
strike that.
You don't know what Kaiser's position was as to whether this was imposed or a voluntary matter on the part of Dr. Mcenany?
A. I know it was not a voluntary matter on the part of Dr. Mcenany. It was a limitation restriction that was imposed by Kaiser that if he was going to do surgeries, then he had to have an assistant surgeon. They didn't tell him he couldn't do surgeries. That's correct. But that is a limitation or a restriction on his ability to practice.
Q. But getting back to this issue of whether the use of an assistant was imposed on him and was a requirement, Kaiser has taken a position that while there is some evidence that the use of an assistant was imposed upon Dr. Mcenany, in fact, it was not imposed upon him, true?
MR. HAPPE: Objection. Misstates. Vague and ambiguous. And, essentially, calls for this witness to speculate as to what Kaiser considered it.
But you can answer, if you can.
THE WITNESS: I'm not sure I can answer that, because if Kaiser believed that this wasn't an imposed restriction that should have been reported, then they -- my belief is that they would not have settled the matter and paid the Medical Board $19,900.
MR. COLWIN: Okay. Move to strike the answer as not being responsive.
Q. (BY MR. COLWIN) Do you know or do you not know whether it was Kaiser's position that the use of an assistant was imposed and required of Dr. Mcenany?
MR. HAPPE: Objection. Asked and answered.
THE WITNESS: I believe I have answered that question, and I -- my response is that if Kaiser did not believe that this was a restriction that was imposed on Dr. Mcenany, they would not have settled this matter and paid the Medical Board $19, 900 .
MR. COLWIN: Again, I move to strike as not being responsive.
Q. (BY MR. COLWIN) That's not my question.
A. I'm not understanding your question.
Q. Okay. It has been alleged by the Medical Board that the use of an assistant was a requirement for Dr. Mcenany's surgeries, true?
A. It has been alleged. that that restriction was a requirement, that if he didn't - if he didn't have an assistant, then he couldn't perform surgeries and that should have been reported to the Medical Board. That's the best response I can give you to that.
Q. I understand. '
But, on the other hand, Kaiser has denied, first of all, that there was a restriction, true?
A. That's true.
MR. HAPPE: Objection. Misstates.
The record shows that they entered a general denial of allegations but did not specifically deny the fact of the restriction.
You can go ahead and answer.
Q. (BY MR.Colwin) Kaiser