Professional Documents
Culture Documents
1a
1 EXAMINATION INDEX
2
ROBERTA KALAFUT, D.O.
3 DIRECT BY MR. SCHLAFLY 36
CROSS BY MR. RUBARTS 80
4 REDIRECT BY MR. SCHLAFLY 99
RECROSS BY MS. JUREN 103
5
DANIEL MUNTON, M.D.
6 DIRECT BY MR. SCHLAFLY 104
CROSS BY MR. RUBARTS 141
7 CROSS BY MS. JUREN 173
REDIRECT BY MR. SCHLAFLY 176
8
DEBBIE CRAWFORD, D.O.
9 DIRECT BY MR. SCHLAFLY 183
CROSS BY MS. JUREN 198
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER
U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
2a
1 EXHIBIT INDEX
2 OFFD / ADM
Plaintiff
3 2 Complaint documents relating to Daniel 9 9
Munton (TMB 1696, 1698-99)
4
3 December 21, 2006 Request for 9 9
5 complaint/investigation against Hendrick
Medical Center physicians (TMB 1685)
6
4 December 16, 2005 and November 14, 2006 9 9
7 emails opening investigations against
Debbie Crawford (TMB 1682-1683)
8
6 Declaration of Roberta Kalafut, D.O. 9 9
9 (05/22/2012) (Defs' Mot. S.J. Exh. 8)
10 7 Nov. 13, 2007 Correspondence to Texas 9 9
Medical Board (attachment to Kalafut
11 Declaration)
12 8 Nov. 14, 2007 Correspondence from Robert 9 9
Simpson (attachment to Kalafut
13 Declaration)
14 9 Nov. 14, 2007 Correspondence from Kalafut 9 9
to Physician Colleagues (attachment to
15 Kalafut Declaration)
16 10 Jaime Garanflo Declaration (Defs Mot. S.J. 9 9
Exh. 6)
17
20 Letter by Brandecker to Munton dated Feb. 117 ---
18 3, 2006 (Exh. 3 to Brandecker Deposition)
19 21 Munton's statement to Governor Perry 164 164
(Exh. 8 to Munton Deposition)
20
22 Spine Abilene medical evaluation, 12/16/05 9 9
21 (Exh. 5 to Kalafut Deposition)
22 24 Employment Agreement with Daniel Munton, 153 153
(Exh.12 to Kalafut Deposition)
23
27 Spine Abilene medical evaluation, 12/15/05 9 9
24 (Exh. 21 to Kalafut Deposition)
25
ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER
U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
3a
1 EXHIBIT INDEX
2 OFFD / ADM
Plaintiff (continued)
3 30 Letter from Robinson to Crawford dated 9 9
01/03/08 (Exh. 9 to Robinson Deposition)
4
31 Letter from Robinson to Crawford dated 9 9
5 01/10/08 (Exh. 10 to Robinson Deposition)
6 34 TMB Minutes August 2007, 9 9
http://www.tmb.state.tx.us/professional...
7 (TMB website, viewed 9/11/12)
8 40 Witness affirmation form for Roberta 9 9
Kalafut (Exh. 3 to the Deposition of
9 Mari Robinson)
10 41 Witness affirmation form for Mari Robinson 9 9
(Exh. 20 to the Deposition of Mari Robinson)
11
Defendant
12 1 Roland F. Chalifoux, DO, TMB Temporary 10 10
Suspension Order, July 19, 2002,
13 TMB 998-1000
14 2 Roland F. Chalifoux, DO, TMB Final Order, 10 10
June 4, 2004, TMB 1001-26
15
3 Final Judgment, Roland F. Chalifoux, Jr., 10 10
16 D.O. v. Tex. State Bd. of Med. Exam'rs
et al., Cause No. GN402591, 53rd District
17 Court, Travis County, Texas
18 4 Roland F. Chalifoux, Jr., D.O. v. Tex. 10 10
State Bd. of Med. Exam'rs, et al., 2006 WL
19 3196461 (Tex.App. -- Austin (Nov. 1 ,2006)
20 5 Debbie Crawford, DO, Email opening 10 10
investigation, December 16, 2005, TMB 1682
21
6 Debbie Crawford, DO, Email opening 10 10
22 investigation, TMB 1683
23 7 Debbie Crawford, DO Agreed Order, August 10 10
21, 2009, TMB 5029-33
24
25
ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER
U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
4a
1 EXHIBIT INDEX
2 OFFD / ADM
Defendant (continued)
3 8 Stephen Faehnle, MD; Steven Johnson, MD; 10 10
Terry Johnson, MD; William Shudde Request
4 for complaint/investigation, December 21
2006, TMB 1712
5
9 Stephen Faehnle, MD Dismissal letter, 10 10
6 May 22, 2008, TMB 001805
7 10 Steven Johnson, MD Dismissal letter, 10 10
May 22, 2008, TMB 001806
8
11 Terry Johnson, MD Dismissal letter, 10 10
9 May 22, 2008, TMB 001807
10 12 William Shudde, MD Dismissal letter, 10 10
May 22, 2008, TMB 001808
11
22 Mark Maxwell, DO Complaint 10 10
12 January 25, 2007, TMB-001694
13 24 Daniel Munton MD and Vincent Viola PA 10 10
Complaint #07-1506, December 19, 2006,
14 TMB 1696
15 25 Daniel Munton, MD Dismissal letter 10 10
Complaint #07-1506, August 29, 2007,
16 TMB 001802
17 26 Vincent Viola, PA Dismissal letter 10 10
July 27, 2007, TMB 001803
18
27 Daniel Munton, MD Complaint #07-2450, 10 10
19 February 26, 2007, TMB 1698-99
20 28 Daniel Munton, MD, TMB computer 10 10
screenshot, Complaint #07-2450, Closure
21 approved on February 7, 2008, TMB 001810
22 29 Daniel Munton, MD, TMB Board Minutes, 10 10
February 7, 2008, Dismissing complaint
23 #07-2450, TMB 001811-1815
24 30 William Rea, MD, Complaint from Sharon 10 10
McCann, Oxford Health Plans, August 23
25 2005, TMB 1705
ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER
U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
5a
1 EXHIBIT INDEX
2 OFFD / ADM
Defendant (continued)
3 31 William Rea, MD, Note on 8/23/2005 10 10
complaint, TMB 1708
4
32 William Rea, MD, Complaint from Sharon 10 10
5 McCann, Oxford Health Plans, September 25
2005, TMB 001706-07
6
33 William Rea, MD Mediated Agreed Order, 10 10
7 August 27, 2010, TMB 1167-74
8 36 Plaintiff's Response to Defendants' First 10 10
Set of Interrogatories (02/13/2012)
9
37 Plaintiff's Response to Defendants' First 10 10
10 Set of Interrogatories (02/10/2012)
11 38 Complaint filed by Edward Brandecker, 10 10
M.D., re: Eric Sidaris Bennos, MD, June 9
12 2003, TMB 001680
13 39 Eric Sidaris Bennos, MD, Dismissal letter, 10 10
October 12, 2004, TMB 001804
14
40 Texas Senate Committee on Health and Human 10 10
15 Services, Interim Report to the 82nd
Legislature, December 2010, (available
16 online at:
http://www.senate.state.tx.us/75r/Senat...
17
41 Dr. Munton's Resignation Letter 155 155
18
43 Assignment signed by Dr. Munton 150 152
19
20
21
22
23
24
25
ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER
U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
6a
KALAFUT - DIRECT
1 10:52:51 A. No, I don't.
2 10:52:53 Q. I'd like to turn your attention to Exhibit 2 of the
3 10:53:01 plaintiff's exhibits. It's the blue book. And, in particular,
4 10:53:15 the last handwritten page of that exhibit, is that your
5 10:53:23 handwriting?
6 10:53:21 A. It all -- the majority of it, it is my handwriting.
7 10:53:28 Except at the very top with the star that says "Do not without
8 10:53:32 Mari." And I don't know whose that is.
9 10:53:31 Q. And do you know who Daniel Munton is who's referenced in
10 10:53:11 this?
11 10:53:11 A. Yes, I do.
12 10:53:12 Q. And at this time was he a competitor of yours?
13 10:53:15 A. According to your definition, yes.
14 10:53:1Z Q. And did you submit these handwritten allegations to the
15 10:53:53 Texas Medical Board?
16 10:53:51 A. Yes. I submitted them to Bob Simpson, who was general
17 10:53:5Z counsel at the Board.
18 10:53:59 Q. And did you expect him to then investigate Daniel Munton
19 10:51:02 because of your handwritten allegations?
20 10:51:05 A. Not necessarily. I was passing along information from a
21 10:51:08 fellow physician who asked me to contact him.
22 10:51:12 Q. Dr. Kalafut, doesn't it say here with two asterisks next
23 10:51:1 to it, "Subpoena on-call records from June 2006 through
24 10:51:21 February of 2007"?
25 10:51:23 A. Yes, sir, it does.
ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER
U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
8a
KALAFUT - DIRECT
1 10:55:1 Q. And isn't it true that you submitted this handwritten
2 10:55:51 demand to subpoena his records anyway?
3 10:55:53 A. No, sir. This is not --
4 10:55:51 MS. JUREN: Objection, Your Honor. Mischaracterizes
5 10:55:5Z what this is and what she said it was, calling it handwritten
6 10:5:01 demand to subpoena records. She testified that's not what it
7 10:5:05 was.
8 10:5:0 THE COURT: Well, it is what it is, and the Court
9 10:5:08 will draw its own conclusion.
10 10:5:12 Q. (BY MR. SCHLAFLY) To rephrase, Dr. Kalafut, isn't it true
11 10:5:18 that you submitted this handwritten note to the Texas Medical
12 10:5:22 Board after you had been informed by Heather Smith that
13 10:5:31 Dan Munton was not having a chiropractor cover his call?
14 10:5:35 A. No, sir. You have it opposite.
15 10:5:3Z Q. In terms of the time line, which came first, submitting
16 10:5:10 the allegation or the determination by Heather Smith?
17 10:5:13 A. I submitted a note first, passed along notes from
18 10:5:18 Mark Santman to Bob Simpson. And then sometime later, I was
19 10:5:53 curious to see if this really was the case. And that's when
20 10:5:5 the call was made.
21 10:5:5Z Q. Okay. And did you pass on that information to the Texas
22 10:5Z:03 Medical Board that exonerated Dan Munton?
23 10:5Z:0 A. No, I did not.
24 10:5Z:08 Q. Do you know if a Dr. Eric Bennos was reading MRI images
25 10:5Z:21 for the chiropractors who practice in Abilene?
ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER
U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
I got
18 contacted by a local physician who also was on a committee for 11:03:15
19 the TMA. I don't know which committee it was, but he called me 11:03:19
20 to say that there was information they had that perhaps one of 11:03:5
21 our Board Members were -- was functioning also in the role as 11:01:00
22 an expert witness. And I asked him who, and he said he would 11:01:05
23 get back to me with the name. 11:01:09
24 Q. And did he get back to you? 11:01:12
25 A. He did. 11:01:11
14a
KALAFUT - DIRECT
1 11:01:11 Q. And did he tell you it was Keith Miller?
2 11:01:1Z A. Yes, sir.
3 11:01:1Z Q. And what did you do next?
4 11:01:20 A. Then I called Donald Patrick, who was executive director
5 11:01:25 of the Texas Medical Board at the time, and I told him that I
6 11:01:29 felt that we had a conflict of interest with Keith Miller. I
7 11:01:31 contacted Keith Miller and asked him if it was true, and he
8 11:01:38 said, yes, he had a role of testifying in expert cases. I
9 11:01:11 don't know if they were in Texas or where, but he did serve as
10 11:01:18 an expert witness.
11 11:01:50 So I went back to Donald Patrick, and we formed
12 11:01:52 immediately a stakeholder's group to draw up rules on conflict
13 11:01:5Z of interest of Board Members, since there was no rule at that
14 11:05:00 time. And so we drafted it. The stakeholders presented it in
15 11:05:05 April, which was our next board meeting. So between the
16 11:05:08 February and the April, we had that meeting. And then it has
17 11:05:13 to go through the Texas Register, drafting through that for
18 11:05:1Z public comment. And by the time that was all said and done, it
19 11:05:21 was August. And you have a 30-day public comment on the rules
20 11:05:25 when you change them, and they were passed in August.
21 11:05:29 Q. And that's 2007?
22 11:05:32 A. I believe it was 2007.
23 11:05:35 Q. Isn't it true that the State Legislature also passed a law
24 11:05:12 prohibiting this type of conflict of interest?
25 11:05:11 A. I believe so.
ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER
U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
No, sir. The only one that recused themselves was me.
Q. Was this meeting after you told Keith Miller that you
10 thought he had a conflict of interest? 11:10:05
11 A. Yes, sir. 11:10:0Z
17a
KALAFUT - DIRECT
1 11:11:01 the time.
2 11:11:01 Q. So would it matter whether it was Texas cases or not Texas
3 11:11:0 cases, in your opinion?
4 11:11:0Z A. Well, I don't -- I don't speak for the whole board.
5 11:11:10 Nineteen Board Members have to decide that.
6 11:11:11 Q. I understand. I'm asking for your opinion. In your
7 11:11:1 opinion, should Miller have recused himself from that meeting?
8 11:11:20 A. Not necessarily. No, sir.
9 11:11:22 Q. In your opinion, should Miller have resigned?
10 11:11:28 A. In my opinion, he should have either -- and this is just
11 11:11:35 my opinion, not the full board. It's either testifying as an
12 11:11:39 expert or a Board Member.
13 11:11:11 Q. And he was testifying as an expert. So in your opinion,
14 11:11:15 should he have resigned as a Board Member?
15 11:11:1Z A. No, sir. I was not aware of the time frame where he was
16 11:11:50 testifying, did he stop or not. I didn't know the details. I
17 11:11:52 just know he had a history of testifying. I don't know. I
18 11:11:55 didn't know any more about it than that. But I wanted to have
19 11:11:59 Board rules in place that was pretty clear what was expected of
20 11:12:03 Board Members.
21 11:12:01 Q. And the Board rules were that he has to resign if he's
22 11:12:11 testifying in malpractice cases?
23 11:12:11 A. I'm sorry?
24 11:12:15 Q. Do the Board rules require someone to resign if they're
25 11:12:18 testifying in malpractice cases?
ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER
U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
18a
KALAFUT - DIRECT
1 11:12:20 A. I don't recall the wording of the Board rule now because
2 11:12:22 that was 2007. If you can read it to me, I can say yes or no.
3 11:12:25 Q. Is there any action that the Board could have taken to
4 11:12:30 require Keith Miller to recuse himself?
5 11:12:33 A. I think there are. Yes, sir. I think there are ethics
6 11:12:3 rules in place. And also I think the only one that can ask
7 11:12:10 somebody to resign is the governor who appointed him.
8 11:12:11 Q. In all your time on the Board -- and how long were you on
9 11:12:1Z the Board in some capacity? About ten years?
10 11:12:51 A. I was on the actual Board from 2002 to December 2008 and
11 11:12:5 then just served as an ancillary committee -- District Review
12 11:13:01 Committee from 2009 to January 2012.
13 11:13:0 Q. So it's a period of about a decade that you were
14 11:13:08 officially associated with the Board, correct?
15 11:13:10 A. Yes, sir.
16 11:13:10 Q. In all that time, was there ever a single instance of the
17 11:13:1Z Board requiring a Board Member or committee member to recuse
18 11:13:2Z himself?
19 11:13:2Z A. Can you rephrase that question for me again, please?
20 11:13:30 Q. Sure. In that decade that you were officially associated
21 11:13:31 with the Board and the Committee, was there a single instance
22 11:13:38 where the Board required someone to recuse himself from a case?
23 11:13:13 A. No, sir. Not to my knowledge.
24 11:13:1 Q. In all of that time, was there a single requirement
25 11:13:51 developed by the Board for a Board Member to disclose potential
ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER
U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
20a
KALAFUT - DIRECT
1 11:15:2Z Q. Yes. If a doctor on the Board were receiving $100,000 a
2 11:15:33 year in compensation for consulting with an insurance company,
3 11:15:38 are you aware of any requirement of disclosure of that specific
4 11:15:15 potential conflict of interest?
5 11:15:1Z A. No, sir.
6 11:15:18 Q. Are you familiar with a doctor named Roland Chalifoux?
7 11:1:03 A. Yes, sir.
8 11:1:01 Q. And are you aware that the Board rejected the
9 11:1:11 recommendation of the SOAH judge with respect to the discipline
10 11:1:18 that the SOAH judge suggested imposing on him?
11 11:1:22 A. I think the case with Dr. Chalifoux -- and I was just
12 11:1:29 coming on the Board. So I just -- and there were other Board
13 11:1:35 Members handling that. So my knowledge is not that -- it's
14 11:1:11 kind of scant on that, what the issues were without reading the
15 11:1:1 Board order.
16 11:1:1Z Q. Are you aware that Dr. Chalifoux --
17 11:1:19 MS. JUREN: Excuse me, Your Honor. I object to the
18 11:1:52 testimony with regard to Dr. Chalifoux because, again, this
19 11:1:5Z happened back -- his license was revoked in 2004, and it's well
20 11:1Z:02 before the statute of limitations for AAPS bringing this
21 11:1Z:0Z lawsuit in December of 2007. So I object to the testimony.
22 11:1Z:10 I'm sorry I didn't jump up soon enough.
23 11:1Z:13 MR. SCHLAFLY: Your Honor, if I could respond to
24 11:1Z:15 that, I'm establishing a pattern in this case. And while this
25 11:1Z:19 case -- newspaper article was 2005, Dr. Kalafut -- Kalafut has
ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER
U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
24a
KALAFUT - DIRECT
1 11:22:11 quote, frightening, close quote, and, quote, We feel he's not
2 11:22:1 safe to treat the public, close quote?
3 11:22:18 A. Yes, sir. But you have to understand our role is public
4 11:22:51 protection, public safety. And when a physician's license is
5 11:22:5 revoked -- and I'm talking in general and it's a serious
6 11:23:00 revocation -- our job is to protect the public. And if this
7 11:23:09 Board order resulted in a revocation and the public was at risk
8 11:23:13 because of everything a physician did, it is our right and our
9 11:23:18 duty to inform the public about a physician.
10 11:23:22 Q. Is it your duty to make statements without checking out
11 11:23:29 all of the facts before you make a statement?
12 11:23:30 A. As a Board, as 19 members, a consensus statement was made
13 11:23:35 and I read it as a spokesperson for the Board.
14 11:23:39 Q. And your testimony is that in this case of Dr. Chalifoux a
15 11:23:13 consensus statement was prepared and you merely read that
16 11:23:18 statement to the newspaper?
17 11:23:50 A. Our media director, after a Board -- after a revocation
18 11:23:53 and we have requests, will read -- will prepare a statement for
19 11:23:5Z us or for me or whoever the spokesperson is for the Board at
20 11:21:01 the time.
21 11:21:01 Q. Did you ask your general counsel at the Board,
22 11:21:11 Robert Simpson, to prepare a statement for you that you would
23 11:21:1 send out to doctors in Abilene?
24 11:21:1Z A. I did, yes.
25 11:21:19 Q. And did you send out such a statements to doctors in
ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER
U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
Abilene?
2 A. I did, yes. 11:21:2
3 Q. I'd like to direct your attention to Plaintiff's 11:21:2Z
4 Exhibit 8. Is that a copy of the letter that you requested 11:21:3
5 Robert Simpson to prepare for you and which you then sent out 11:25:0
6 to doctors in Abilene? 11:25:10
7 A. Yes, sir. 11:25:12
26a
KALAFUT - DIRECT
1 11:31:2Z complaints against Abilene physicians, especially competitors.
2 11:31:33 And so to clear our name, because this was being circulated, we
3 11:31:38 asked to waive our confidentiality. And I don't believe any
4 11:31:12 President or any Board Member has ever had to waive
5 11:31:1 confidentiality. And we asked that because we wanted to
6 11:31:19 preserve our reputations.
7 11:31:50 Q. So your testimony is that rumors were circulating that you
8 11:31:51 and Ed Brandecker were doing this, correct?
9 11:31:5 A. Yes. This was after that October hearing that y'all had.
10 11:31:59 Q. And to whom did you send this letter?
11 11:32:03 A. To physicians in Abilene.
12 11:32:05 Q. Did you send it to all physicians in Abilene?
13 11:32:08 A. No, sir.
14 11:32:08 Q. Whom did you not send that letter?
15 11:32:11 A. We didn't send it to pediatricians. We did not send it to
16 11:32:1 Dr. Munton.
17 11:32:18 Q. And why did you not send it to Dr. Munton?
18 11:32:21 A. Well, you know, it was one of those when he came back to
19 11:32:2 town, he circulated a letter coming back to town and he sent it
20 11:32:30 to everybody but us. So ...
21 11:32:33 Q. Did his letter say anything negative about you when he
22 11:32:3Z came back to town?
23 11:32:38 A. I don't believe so. I'd have to read it.
24 11:32:10 Q. Can you see how this letter that you sent out
25 11:32:50 November 14th, 2007 to physicians other than Dan Munton could
ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER
U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
A. Yes, sir.
30a
KALAFUT - REDIRECT
1 11:13:2Z Q. Do you recall walking over to her assistant in the middle
2 11:13:32 of that hearing and ordering her to stop taking notes?
3 11:13:35 A. No, sir.
4 11:13:3 Q. You testified that Dr. Crawford asserted the same claims
5 11:13:15 against you that AAPS has asserted against you in this case; is
6 11:13:52 that correct?
7 11:13:53 A. Yes, sir.
8 11:13:51 Q. What are those claims?
9 11:13:55 A. The claims are that we turned her into the Medical Board,
10 11:13:58 my husband and I, and caused her harm.
11 11:11:00 Q. Did Dr. Crawford sue you under Section 1983?
12 11:11:03 A. I don't know, sir.
13 11:11:0 Q. Did someone advise you that they were the same claims?
14 11:11:12 A. Well, it was turned over to the malpractice carrier who
15 11:11:1Z said it was similar.
16 11:11:19 Q. You testified about stepping down as president of the
17 11:11:29 Medical Board and serving on a District Review Committee.
18 11:11:32 Isn't it true that by changing from the Medical Board to the
19 11:11:3Z District Review Committee, then you no longer had to file any
20 11:11:10 financial disclosures?
21 11:11:12 A. Yes, sir.
22 11:11:13 Q. So just to clarify, by making that shift from president to
23 11:11:18 review committee, that enabled you to stop disclosing your
24 11:11:52 finances. Isn't that right?
25 11:11:51 A. Yes, sir.
ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER
U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
34a
MUNTON - DIRECT
1 11:30:3 A. Yes.
2 11:30:3 Q. And your testimony is the reason for that was because
3 11:30:39 Dr. Bennos was reading MRIs for chiropractors that were in
4 11:30:1 competition with Dr. Kalafut?
5 11:30:19 MR. RUBARTS: Your Honor, I object to the continued
6 11:30:50 leading the witness.
7 11:30:51 MS. JUREN: Also.
8 11:30:52 THE COURT: Sustained.
9 11:30:51 Q. (BY MR. SCHLAFLY) Why was Dr. Kalafut intent on obtaining
10 11:31:01 harsher discipline for Dr. Bennos?
11 11:31:03 MS. JUREN: Objection, Your Honor. Assumes what --
12 11:31:0 that several things. One, that Dr. Kalafut was intent and that
13 11:31:12 the witness would know why she was intent on something.
14 11:31:1Z MR. SCHLAFLY: I'll reword. I'll reword it.
15 11:31:20 Q. (BY MR. SCHLAFLY) Why do you think Dr. Kalafut made a call
16 11:31:2 to the Medical Board to try to get harsher discipline for
17 11:31:30 Dr. Bennos?
18 11:31:30 A. She told me that she did not feel like the verdict that
19 11:31:33 came out of that finding was harsh enough, given the fact that
20 11:31:3Z she said that her husband, Ed, had turned in this physician
21 11:31:12 and that she felt like it needed to be a harsher punishment
22 11:31:1 than was divvied out.
23 11:31:18 Q. And was there a competitive issue there also?
24 11:31:51 MS. JUREN: Objection. Calls for speculation.
25 11:31:51 THE COURT: Sustained.
ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER
U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
She told me that she did not feel like the verdict that
19 came out of that finding was harsh enough, given the fact that 11:31:33
20 she said that her husband, Ed, had turned in this physician 11:31:3Z
21 and that she felt like it needed to be a harsher punishment 11:31:12
22 than was divvied out. 11:31:1
A.
35a
MUNTON - DIRECT
1 11:11:32 Q. Okay. So in an 11-year period, you had never had a single
2 11:11:3Z complaint filed against you with the Medical Board?
3 11:11:10 A. Yes.
4 11:11:10 Q. But once you returned to Abilene, how quickly did you have
5 11:11:1 a complaint filed against you with the Medical Board?
6 11:11:19 A. Within the first six months.
7 11:11:51 Q. And then was there a second complaint filed against you
8 11:11:5 with the Medical Board?
9 11:11:5Z A. Yeah. Shortly thereafter.
10 11:11:58 Q. And was the medical claim also filed against your
11 11:12:02 physician assistant?
12 11:12:03 A. Yes. He had one in the first six months working with me
13 11:12:0Z as well. He had previously been a physician assistant in their
14 11:12:10 practice.
15 11:12:11 Q. So is it correct that you had no complaints filed against
16 11:12:1 you in 11 years, but upon your return to Abilene, you had two
17 11:12:20 complaints filed against you and one against your physician
18 11:12:23 assistant in a period of time of, what, perhaps nine months?
19 11:12:2Z A. Eight months.
20 11:12:28 Q. Could you explain for the Court what the process was when
21 11:12:31 you had that first complaint filed against you?
22 11:12:3Z A. You receive a complaint. And in the complaint, the one I
23 11:12:12 received, it said failure to supervise physician assistant.
24 11:12:1Z So, you know, I see 30 patients a day with my physician
25 11:12:50 assistant. So you get subpoenaed in your office to receive the
ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER
U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
37a
MUNTON - DIRECT
1 11:11:0 to; not with what case it had to do with; you didn't know your
2 11:11:09 accuser.
3 11:11:10 So I called the Board. This is my first time I ever
4 11:11:12 experienced this. I called the Board and said, How am I
5 11:11:11 supposed to answer a complaint with failure to supervise your
6 11:11:1Z physician assistant when I don't know what -- when and if I
7 11:11:20 ever failed to supervise my physician assistant? It was just a
8 11:11:21 broad base, broad stroke. You don't actually get to see the
9 11:11:2Z complaint. They just said, Send in everything that's
10 11:11:31 pertinent.
11 11:11:31 So 30 patients a day, six months. We sent in a log.
12 11:11:31 We shut down our office. We start in a log with every patient
13 11:11:38 I've seen with my physician assistant, what I've documented on
14 11:11:11 all of those cases, a log individually on what we did and what
15 11:11:11 the treatment plan was to show that I had seen my -- seen
16 11:11:18 patients with my physician assistant all the way along. That
17 11:11:51 was just my case.
18 11:11:52 My physician assistant also, he was turned in as
19 11:11:5 well. So because he's my employee, you know, I have -- he's my
20 11:11:59 responsibility as well. His case actually had a patient's name
21 11:15:03 in it. It said improper care of -- improper medical management
22 11:15:09 of the patient and gave the name. So on that case, we
23 11:15:15 called -- the patient had seen us one time. We had recommended
24 11:15:19 that she have an imaging study done. She was an elderly
25 11:15:23 patient. And she was supposed to come back and see me. She
ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER
U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
38a
MUNTON - DIRECT
1 11:15:2 saw my physician assistant, and she was supposed to come back
2 11:15:30 and follow up and see me.
3 11:15:31 MS. JUREN: Excuse me, Your Honor. I object to the
4 11:15:33 narrative response. I don't even know what the question is at
5 11:15:31 this point.
6 11:15:31 THE COURT: All right. Try to break it up.
7 11:15:3 THE WITNESS: Okay.
8 11:15:3Z Q. (BY MR. SCHLAFLY) How long did that take you, to gather
9 11:15:12 this response to the Medical Board?
10 11:15:11 A. You receive the complaint. The date on it was January
11 11:15:1Z 8th, I believe it was. I had to have everything in by the
12 11:15:51 17th. That was the date they gave me. So I had about a week's
13 11:15:51 time to get all of that put together and sent in. So they say
14 11:15:58 that's your rebuttal time. So we sent it in -- the day we sent
15 11:1:02 it in was the day I'm sent to investigation. In other words,
16 11:1:01 mine is in the mail, I received in the mail that day that I'm
17 11:1:08 going to formal investigation. There is no way possible that
18 11:1:11 anybody had even looked at that information I put together in
19 11:1:15 that week's period of time.
20 11:1:15 Q. So, in other words, the time line and such was impossible
21 11:1:1Z for the Medical Board to even consider the information you
22 11:1:20 gave?
23 11:1:20 A. My response to them was in the mail.
24 11:1:23 MS. JUREN: Your Honor, there's been no foundation
25 11:1:2 laid for how he would know whether the Medical Board had time
ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER
U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
40a
MUNTON - DIRECT
1 11:1Z:58 A. No. In fact, even by the Texas Medical Board --
2 11:18:03 MS. JUREN: Excuse me, Your Honor. I object to a
3 11:18:0Z line of questioning having to do with the merits of the case,
4 11:18:11 because we went through this before, we went up to the Fifth
5 11:18:15 Circuit, that this is not supposed to be a case about the
6 11:18:18 individual merits of individual cases. I think it was the
7 11:18:21 grounds upon which AAPS convinced the Fifth Circuit to give
8 11:18:2Z them representational standing.
9 11:18:30 So I think Defendants expected that we were going to
10 11:18:33 be trying a lot of individual docket cases, but I believe
11 11:18:3Z that's not what AAPS represented to the Fifth Circuit.
12 11:18:11 MR. SCHLAFLY: Your Honor, I'm just asking if the
13 11:18:13 allegations were frivolous.
14 11:18:15 THE COURT: I'll allow him to express his opinion.
15 11:18:19 A. Yes. And they were -- I was exonerated at the Texas
16 11:18:52 Medical Board level.
17 11:18:55 Q. How long did it take the Texas Medical Board to exonerate
18 11:19:00 you?
19 11:19:00 A. The first two that I had were over six months. I then
20 11:19:05 shortly thereafter received a third one that stood for over a
21 11:19:08 year.
22 11:19:09 Q. Is there any reasonable way that it should have taken them
23 11:19:11 so long to clear you?
24 11:19:1 A. In my opinion, no. My third case was so simple, I had
25 11:19:20 somebody take a call for me after hours. I sent in my entire
ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER
U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
41a
MUNTON - DIRECT
1 11:19:21 log of every call that had ever come in to me after hours. It
2 11:19:2Z was simple. I had a note from my answering service, a note
3 11:19:31 from who took call for me. It took over a year to clear that.
4 11:19:31 Q. And if they had looked at those logs, how long would it
5 11:19:3Z have taken them to conclude that the charges were frivolous?
6 11:19:11 MS. JUREN: Objection, Your Honor. Calls for
7 11:19:12 speculation, and it assumes that that's the only thing they
8 11:19:50 did.
9 11:19:50 THE COURT: Well, you will have an opportunity to
10 11:19:53 cross-examine him. I'm going to overrule the objection.
11 11:19:5Z A. A matter of minutes.
12 11:19:58 Q. It would have taken them only a matter of minutes to
13 11:50:02 dismiss the charges?
14 11:50:03 A. Yes.
15 11:50:01 Q. I'd like to -- for you to turn to one of the early
16 11:50:09 exhibits -- I guess it would be Plaintiff's Exhibit 2 -- and
17 11:50:1Z identify the specific allegations that Texas Medical Board
18 11:50:23 should have resolved in a matter of minutes?
19 11:50:2 MR. RUBARTS: Excuse me, Your Honor. Are we talking
20 11:50:28 about the first page? second page?
21 11:50:30 MR. SCHLAFLY: Well, I'm asking the witness which of
22 11:50:32 the --
23 11:50:32 THE COURT: He's asking him right now to look at the
24 11:50:31 entire exhibit and then to state what his position is on what
25 11:50:11 could have been resolved.
ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER
U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
Q. And does that harm you, when a medical board holds open an
22 allegation like that longer than it should? 11:51:11
23 A. Yes. 11:51:1Z
24 . Q And how does that harm you? 11:51:1Z
25 A. Multiple different ways. One is you have attorney fees, 11:51:19
Q. (BY MR. SCHLAFLY) It's your understanding that this
18 complaint was held open much longer by the Medical Board than 11:51:32
19 it should have been? 11:51:3
20 A. In my opinion, all of them were. 11:51:3Z
43a
MUNTON - DIRECT
1 11:51:52 and you're talking to your attorneys and trying to get these
2 11:51:55 cases exonerated. So it's expensive to do it. You then get
3 11:52:00 requests for further records, and so you have to take time off
4 11:52:05 of your practice to do the further records and have more
5 11:52:08 information sent in. Like I said, we spent an entire eight
6 11:52:11 days, my staff put together, to get all my logs to try to send
7 11:52:11 in every patient I've ever seen with my physician assistant.
8 11:52:1Z Obviously, it's a chilling effect to your staff. It's hard to
9 11:52:20 explain it to your staff. And it's just an emotional toll that
10 11:52:28 takes a big part of it.
11 11:52:29 Q. When you fill out applications -- well, let me ask you
12 11:52:32 this: Do you have hospital privileges?
13 11:52:31 A. Yes.
14 11:52:31 Q. When you fill out applications to renew your hospital
15 11:52:38 privileges or obtain hospital privileges, are you asked about
16 11:52:11 whether you have an investigation pending by the Medical Board?
17 11:52:15 A. Yes. And we have to explain.
18 11:52:1 Q. So when an investigation is held open a long time like
19 11:52:50 this, does that require you to put that on your applications
20 11:52:53 for hospital privileges?
21 11:52:51 A. Yes, it does.
22 11:52:55 Q. And if a hospital decides to reject your application for
23 11:53:01 hospital privileges, does that then cause you problems?
24 11:53:01 A. Yes.
25 11:53:01 Q. Does that get reported to the National Practitioner Data
ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER
U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
Bank?
2 A. I believe it does. 11:53:08
45a
MUNTON - DIRECT
1 11:51:2Z officially on the Board, and we are seeking -- we have sought
2 11:51:32 equitable injunctive relief against her from the beginning on a
3 11:51:3 personal level.
4 11:51:3Z THE COURT: Well, I'm going to sustain the
5 11:51:38 objection. If you can link up something which I haven't heard
6 11:51:11 so far about her continuing to work with the Board, if he has
7 11:51:50 some testimony about that, Dr. Munton does, I will hear it as
8 11:51:5 opposed to just now opening this up. This whole thing is about
9 11:55:02 the Board, and Dr. Kalafut is sued in her individual capacity,
10 11:55:0 but that doesn't mean we go beyond what the allegations in the
11 11:55:11 pleadings are. So you're going to need a better predicate than
12 11:55:11 what's been laid so far.
13 11:55:1 Q. (BY MR. SCHLAFLY) Dr. Munton, are you concerned that after
14 11:55:19 this case is over that Dr. Kalafut may pass more allegations to
15 11:55:2 the Board that are baseless about you?
16 11:55:28 A. Yes.
17 11:55:29 MR. RUBARTS: He answered so fast.
18 11:55:31 THE COURT: I'm going to overrule the objection. I'm
19 11:55:33 going to let him say what he thinks. There is clearly a
20 11:55:3 situation here between the two of them. You know, I recognize
21 11:55:12 that. I sit up here and hear these allegations. Go ahead,
22 11:55:1 Mr. Schlafly.
23 11:55:1Z Q. (BY MR. SCHLAFLY) Does Dr. Kalafut disparage you to
24 11:55:51 patients whom you've seen?
25 11:55:53 A. Yes.
ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER
U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
Q. (BY MR. SCHLAFLY) Dr. Munton, are you concerned that after
14 this case is over that Dr. Kalafut may pass more allegations to 11:55:19
15 the Board that are baseless about you? 11:55:2
16 A. Yes. 11:55:28
46a
MUNTON - DIRECT
1 15:03:10 against you because of how you provided some information to the
2 15:03:18 Legislative Committee?
3 15:03:18 MS. JUREN: Object to leading, Your Honor.
4 15:03:20 THE COURT: Sustained.
5 15:03:21 Q. (BY MR. SCHLAFLY) Do you feel that the letters that
6 15:03:2 Kalafut sent out in 2007, November of 2007, were retaliation
7 15:03:32 against you?
8 15:03:32 A. Yes.
9 15:03:33 Q. Did you provide some information to the Legislative
10 15:03:10 Committee before the Texas Medical Board hearing in October of
11 15:03:1 2007?
12 15:03:1 A. Yes.
13 15:03:1 Q. Have you testified before the Legislative Committees?
14 15:03:51 A. Yes.
15 15:03:51 Q. Do you feel that Kalafut is retaliating against you by
16 15:01:03 deliberately contradicting some of your medical advice to
17 15:01:0 patients?
18 15:01:0Z MS. JUREN: Objection. Leading and relevance.
19 15:01:10 THE COURT: I'll sustain the leading.
20 15:01:12 Q. (BY MR. SCHLAFLY) Are there other ways that you feel that
21 15:01:1 Dr. Kalafut is retaliating against you?
22 15:01:18 A. Yes.
23 15:01:19 Q. What are those other ways?
24 15:01:21 A. Speaking disparagingly against me in the community. Sends
25 15:01:28 out letters to my referral sources. I am a referral-based
ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER
U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
Q. (BY MR. SCHLAFLY) And were you and Ed Brandecker the only
10 two designated doctors in Brown County? 1:29:51
11 A. During that time period -- and I checked this multiple 1:29:51
12 times -- we were. However, there were some doctors that would 1:29:5
13 come and go off the list. But in that general time period 1:29:59
14 you're referring to, yes, sir, most of the time we were the 1:30:02
15 only two. 1:30:0
16 Q. And what does it mean to be a designated doctor? 1:30:0
17 A. It means that you do impairment ratings for Work Comp 1:30:09
18 patients, and that you would be the highest authority in that 1:30:13
19 impairment rating and you would overturn the treating doctor's 1:30:15
20 impairment in most cases. You have the strongest -- you would 1:30:18
21 have to have a preponderance of the evidence to overturn a 1:30:21
22 designated doctor's impairment rating. 1:30:23
23 Q. And are those designated doctor evaluations relatively 1:30:25
24 profitable compared to other types of office visits? 1:30:30
25 A. Yes, sir. 1:30:31
49a
CRAWFORD - DIRECT
1 1:30:35 Q. So is it desirable to be on the designated doctor list?
2 1:30:11 A. Yes.
3 1:30:11 Q. And if you were removed from that designated doctor list,
4 1:30:1 would Ed Brandecker receive some of that business that you had?
5 1:30:50 A. Yes. Every month they go through and do a rotation basis
6 1:30:53 of the assignment. So if they have so many in a week's period
7 1:30:58 of time, they rotate from one doctor to the next as far as I
8 1:31:02 understand that, unless there's a conflict.
9 1:31:01 Q. Did you have a complaint filed against you with the Texas
10 1:31:18 Medical Board relating to two different patients, one that was
11 1:31:25 seen by Ed Brandecker and one that was seen by Roberta Kalafut,
12 1:31:30 in the same complaint?
13 1:31:32 A. Yes, sir.
14 1:31:32 Q. Is there any possible source for that complaint other than
15 1:31:38 Brandecker and Kalafut's office?
16 1:31:10 A. Not to my --
17 1:31:11 MS. JUREN: Objection. Calls for speculation.
18 1:31:13 THE COURT: I'll let her state her opinion.
19 1:31:15 A. In my opinion, no, sir. They had different insurance
20 1:31:18 companies. And I continued to see the patients, so it wasn't
21 1:31:51 the patients that were the source.
22 1:31:53 Q. So the patients did not file the complaint?
23 1:31:55 A. No, sir.
24 1:31:55 Q. And the insurance companies did not file the complaint?
25 1:31:59 A. No. They were two different insurance companies.
ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER
U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
55a
1 EXAMINATION INDEX
2
DEBBIE CRAWFORD, D.O.
3 CROSS BY MS. JUREN 4
CROSS BY MR. RUBARTS 7
4 REDIRECT BY MR. SCHLAFLY 13
RECROSS BY MS. JUREN 15
5 FURTHER DIRECT BY MR. SCHLAFLY 17
6 WILLIAM REA, M.D.
DIRECT BY MR. SCHLAFLY 19
7 CROSS BY MS. JUREN 33
8 KEITH MILLER, M.D.
DIRECT BY MR. SCHLAFLY 45
9 CROSS BY MR. VINSON 58
REDIRECT BY MR. SCHLAFLY 62
10
EDWARD BRANDECKER, M.D.
11 DIRECT BY MR. SCHLAFLY 70
12 ROLAND CHALIFOUX, D.O.
DIRECT BY MR. SCHLAFLY 90
13 CROSS BY MR. VINSON 99
CROSS BY MR. RUBARTS 115
14 REDIRECT BY MR. SCHLAFLY 117
15 VICKIE MEYERS
DIRECT BY MR. SCHLAFLY 128
16 VOIR DIRE BY MR. RUBARTS 148
VOIR DIRE BY MR. SCHLAFLY 149
17 DIRECT BY MR. SCHLAFLY 151
VOIR DIRE BY MR. RUBARTS 162
18 DIRECT BY MR. SCHLAFLY 164
CROSS BY MR. RUBARTS 169
19 REDIRECT BY MR. SCHLAFLY 187
20 MARI ROBINSON, J.D.
DIRECT BY MR. SCHLAFLY 189
21
22
23
24
25
ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER
U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
56a
1 EXHIBIT INDEX
2 OFFD / ADM
Plaintiff
3 1 June 9, 2003 Complaint filed by Edward 73 73
Brandecker against Eric Bennos (TMB 1680)
4
5 Complaint documents relating to William 194 194
5 Rea, (TMB 1705-1708)
6 20 Letter by Brandecker to Munton dated Feb. 76 ---
3, 2006 (Exh. 3 to Brandecker Deposition)
7
32 Letter from Pease to Maxwell dated 241 ---
8 02/17/06, (Exh. 11 to Robinson Deposition)
9 33 Designated doctor information (Exh. 12 to 13 14
Robinson Deposition)
10
Defendant
11 42 Letter of December 11, 2004 from 172 173
Vickie Meyers
12
44 Note to Dr. Kalafut from Vickie Meyers 176 177
13
45 Email from Vickie Meyers dated 185 185
14 February 1, 2006
15
16
17
18
19
20
21
22
23
24
25
ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER
U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
57a
CRAWFORD - REDIRECT
1 09:18:21 MR. SCHLAFLY: Your Honor, the Web site says it comes
2 09:18:28 from the State itself, so I think there can be judicial notice
3 09:18:31 of that. And I think --
4 09:18:35 THE COURT: Is there any reason to believe that the
5 09:18:11 information contained in this document is not accurate?
6 09:18:15 MR. VINSON: Absolutely.
7 09:18:1Z MS. JUREN: Yes.
8 09:18:1Z THE COURT: Why is that?
9 09:18:18 MS. JUREN: Other printouts from other evidence from
10 09:18:51 the same Web site.
11 09:18:5 THE COURT: Well, I'm going to admit it under the
12 09:18:59 residual clause, and you may seek to admit other documents to
13 09:19:0 impeach it. So Plaintiff's Exhibit No. 33 is admitted.
14 09:19:12 Q. (BY MR. SCHLAFLY) Dr. Crawford, did you edit this document
15 09:19:15 in any way?
16 09:19:1 A. No, sir.
17 09:19:1Z Q. Dr. Crawford, do you still own your office building in
18 09:19:23 Brownwood?
19 09:19:21 A. Yes, I do.
20 09:19:25 Q. Would you like to return to practice medicine in
21 09:19:29 Brownwood?
22 09:19:30 A. Yes. Some day.
23 09:19:35 Q. And would you feel comfortable returning to practice in
24 09:19:38 Brownwood if -- if the Court provided some protection against
25 09:19:13 additional complaints against you?
ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER
U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
A. Yes.
59a
REA - DIRECT
1 09:31:11 inquiry that said there were five patients that needed to be
2 09:31:18 reviewed because I had received a complaint. It turned out all
3 09:31:53 five patients were from Manhattan and that they -- all five
4 09:31:5Z patients apparently had the same insurance company. I didn't
5 09:32:01 know this at the time, of course, and it turned out that three
6 09:32:0Z of the patients wrote to the Board that I had saved their
7 09:32:12 lives, which I had, and the other two I got back --
8 09:32:15 MS. JUREN: Your Honor, excuse me. I object to the
9 09:32:1Z narrative response and not responsive to the question. So I
10 09:32:20 object as nonresponsive.
11 09:32:22 THE COURT: Break it up.
12 09:32:23 MS. JUREN: And hearsay.
13 09:32:25 THE COURT: Break it up. I'll deal with objections
14 09:32:2Z on a question-by-question basis.
15 09:32:29 MR. SCHLAFLY: Yes.
16 09:32:29 Q. (BY MR. SCHLAFLY) Did you receive one complaint from the
17 09:32:33 Medical Board on five patients?
18 09:32:35 A. Yes.
19 09:32:3 Q. And did you track down which insurance carrier or carriers
20 09:32:11 those five patients had?
21 09:32:15 A. Yes.
22 09:32:1 Q. And which was that?
23 09:32:18 A. Well, I think it was -- I can't remember the name of it.
24 09:32:51 It was a defunct company that was apparently bought then by
25 09:32:5 United Health Care.
ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER
U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
Q. (BY MR. SCHLAFLY) Did you receive one complaint from the
17 Medical Board on five patients? 09:32:33
18 A. Yes. 09:32:35
19 Q. And did you track down which insurance carrier or carriers 09:32:3
20 those five patients had? 09:32:11
21 A. Yes. 09:32:15
22 Q. And which was that? 09:32:1
23 A. Well, I think it was -- I can't remember the name of it. 09:32:18
24 It was a defunct company that was apparently bought then by 09:32:51
25 United Health Care. 09:32:5
60a
REA - DIRECT
1 09:32:5Z Q. The point is, was it one insurance company or multiple
2 09:33:01 insurance companies?
3 09:33:02 A. One.
4 09:33:02 Q. Had you submitted any bills to the insurance company?
5 09:33:05 A. I don't recall. That would be my billing people.
6 09:33:08 Q. Did you respond to that complaint that you received from
7 09:33:13 the Texas Medical Board?
8 09:33:15 A. Yes, I did. In very good detail.
9 09:33:1Z Q. And is your testimony that three of those patients --
10 09:33:23 well, let me ask you: Did any of those patients file a
11 09:33:2 complaint?
12 09:33:2Z A. No.
13 09:33:2Z Q. Did the Texas Medical Board dismiss the complaint once
14 09:33:3 they received your response?
15 09:33:38 A. No.
16 09:33:38 Q. Were you required to seek -- or were -- did they hold an
17 09:33:11 informal settlement conference with you?
18 09:33:1Z A. Yes.
19 09:33:1Z Q. Did you attend that personally?
20 09:33:19 A. Yes.
21 09:33:19 Q. Could you describe what that was like?
22 09:33:52 A. Well, it was my first one, and they had a physician called
23 09:33:59 Keith Miller from Centerville, Texas. And there were two or
24 09:31:03 three other laypeople there, I believe, as I recall.
25 09:31:0 Q. Did they present you with any experts who had reviewed
ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER
U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
some ideas that they were going to hurt certain physicians, and
15 I just happened to be one of them. I had other friends that 09:1:00
16 had been hurt. 09:1:01
63a
MILLER - DIRECT
1 10:0:03 KEITH MILLER, M.D.,
2 10:0:03 having been first duly sworn, testified as follows:
3 10:0:03 DIRECT EXAMINATION
4 10:0:03 BY MR. SCHLAFLY:
5 10:0:01 Q. Dr. Miller, could you state your name for the record,
6 10:0:0Z please.
7 10:0:0Z A. Dr. Keith Miller.
8 10:0:09 Q. And could you just briefly provide your background.
9 10:0:15 A. I'm a family physician in Center, Texas. I practice
10 10:0:18 family practice there. I've been there about 25 years.
11 10:0:22 Q. And did you serve on the Texas Medical Board?
12 10:0:25 A. Correct. I did.
13 10:0:2 Q. And what time period did you serve on the Texas Medical
14 10:0:29 Board?
15 10:0:30 A. From early 2003 until late 2007.
16 10:0:33 Q. And why did you -- did you resign before your term was
17 10:0:11 over on the Texas Medical Board?
18 10:0:12 A. Yes.
19 10:0:13 Q. And why did you resign?
20 10:0:15 A. Toward the end of my term, with passage of House Bill
21 10:0:50 1973, if that's the correct number, that excluded Board Members
22 10:0:51 from serving in the capacity as an expert medical witness in
23 10:0:59 certain civil litigation, I had been involved in that. And at
24 10:0Z:02 that time I was near the end of my term, and so I chose to
25 10:0Z:05 resign from the Board to continue in that work so there would
ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER
U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
Q. And what time period did you serve on the Texas Medical
14 Board? 10:0:29
15 A. From early 2003 until late 2007. 10:0:30
64a
MILLER - DIRECT
1 10:0Z:08 be no conflicts.
2 10:0Z:10 Q. Did you disagree that that was a conflict of interest,
3 10:0Z:11 your testifying in malpractice cases while serving on the
4 10:0Z:1Z Board?
5 10:0Z:1Z A. I did not see that as a conflict.
6 10:0Z:20 Q. Did you try to stay on the Board even though -- well, let
7 10:0Z:2Z me back up a little bit.
8 10:0Z:29 Did President Kalafut express to you her view that it
9 10:0Z:32 was a conflict?
10 10:0Z:31 A. The first discussion I ever recall of -- well, there's two
11 10:0Z:38 discussions. Back early in 2004, the first time I was ever
12 10:0Z:13 approached about serving as an expert medical witness, our
13 10:0Z:1Z then-president, Dr. Lee Anderson, was president of the Board.
14 10:0Z:50 I discussed the matter with him.
15 10:0Z:53 Dr. Anderson conveyed to me that he did not see that
16 10:0Z:5 as a difficulty as long as, of course, the same person was
17 10:08:00 not -- did not have business before the Board that was
18 10:08:02 represented in the case and also that I did not work to testify
19 10:08:09 as to the proceedings of the Board. In other words,
20 10:08:12 Dr. Anderson himself, who was an ophthalmologist himself, said
21 10:08:1 that he had been contacted to serve as an expert witness in
22 10:08:20 cases that he thought involved ophthalmology and it turned out
23 10:08:25 it involved having inner workings of the Board. He thought
24 10:08:2Z that was inappropriate. But other than that, he thought that
25 10:08:29 would be okay.
ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER
U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
65a
MILLER - DIRECT
1 10:08:29 Then the next conversation that I recall, the only
2 10:08:32 one -- the first one with Dr. Kalafut or anyone else on the
3 10:08:35 Board was in June of 2007 at our Board meeting. At that time a
4 10:08:13 number of our Board Members were involved in serving as expert
5 10:08:1Z witnesses in a number of capacities. We had some Board Members
6 10:08:50 who were expert in areas of child abuse and testified in those
7 10:08:53 areas. Other doctors testified in other areas.
8 10:08:5 So in June of 2007 I asked the Board, as I think
9 10:09:00 Dr. Kalafut did also, for us to develop a policy regarding the
10 10:09:01 appropriateness of Board Members serving as expert medical
11 10:09:0Z witness and have that ready by next Board meeting, which would
12 10:09:11 be August 2007.
13 10:09:13 At the August 2007 meeting we learned for the first
14 10:09:15 time that House Bill 1973 had been passed. We adopted that as
15 10:09:19 Board rule, which I unanimously -- which I voted for on a
16 10:09:23 Friday. The next week I resigned from the Board.
17 10:09:2 Q. Did you recuse yourself from any cases during your entire
18 10:09:31 tenure on the Board?
19 10:09:35 A. I seem to recall a case maybe one or two times that I
20 10:09:10 recused myself, not that it involved anything in the area of
21 10:09:11 testifying as an expert medical witness but, rather, I had some
22 10:09:18 personal knowledge of the respondent doctors involved. And I
23 10:09:50 simply didn't want to be involved because I knew them
24 10:09:53 personally. But other than that, I never recused myself
25 10:09:5 because I never came across a situation of physicians in cases
ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER
U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
Q. Did you recuse yourself from any cases during your entire
18 tenure on the Board? 10:09:31
19 A. I seem to recall a case maybe one or two times that I 10:09:35
20 recused myself, not that it involved anything in the area of 10:09:10
21 testifying as an expert medical witness but, rather, I had some 10:09:11
22 personal knowledge of the respondent doctors involved. And I 10:09:18
23 simply didn't want to be involved because I knew them 10:09:50
24 personally. But other than that, I never recused myself 10:09:53
66a
MILLER - DIRECT
1 10:10:00 that I worked with as both an expert and on the Board.
2 10:10:01 Q. Are you aware of any policy at the Medical Board about
3 10:10:08 recusal? In other words, are you aware of any conflict of
4 10:10:12 interest policy at the Board other than the one you just
5 10:10:15 testified about with these malpractice cases?
6 10:10:18 A. No. It's simply in general. Our -- our executive
7 10:10:21 director and general counsel had always told us that if at any
8 10:10:25 time we felt for any reason that we could not be an unbiased,
9 10:10:29 nonpartisan member of the Board to do our job, then we should
10 10:10:31 recuse ourselves in the general sense. But other than that, I
11 10:10:3Z was not aware of any policy regarding that.
12 10:10:10 Q. And is the decision to recuse in the sole discretion of
13 10:10:1 the Board Member?
14 10:10:1Z A. Well, if there were no stated policy, otherwise, I would
15 10:10:55 think that would be true.
16 10:10:5 Q. So there was never a time when -- when the Board would
17 10:11:01 sort of indicate that one of the Board Members should really
18 10:11:08 recuse themselves from a case? In other words, there was never
19 10:11:12 a time when the Board or other Board Members would tell another
20 10:11:15 Board Member that he really should recuse himself; is that
21 10:11:1Z right?
22 10:11:18 A. Well, that never happened to me. I have no personal
23 10:11:22 knowledge of that ever happening.
24 10:11:21 Q. In terms of disclosure, did you file disclosure forms
25 10:11:28 while you were on the Board?
ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER
U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
Q. Did you recuse yourself from any matters that were under
21 discipline at this meeting? And you can look through it. You 10:18:13
22 can take your time to look through it? 10:18:18
23 A. As we sit here this moment, I don't recall that I did. If 10:18:50
24 I did, you could probably help me find it. 10:18:53
Q. (BY MR. SCHLAFLY) Dr. Miller, the Texas Medical Board has
15 accepted this into evidence as a printout of the Texas Medical 10:18:20
16 Board Meeting Minutes of August 23rd-24th, 2007. And is that 10:18:21
17 the meeting that you referred to earlier in your testimony? 10:18:31
18 A. Yes. That's the last Medical Board Meeting I attended as 10:18:31
19 a member. 10:18:39
68a
MILLER - DIRECT
1 10:18:5Z A. I don't recall that I did, no.
2 10:18:59 Q. But isn't it -- well, let me rephrase that.
3 10:19:01 Dr. Miller, had the state law against the conflict of
4 10:19:09 interest for testifying in malpractice cases already been
5 10:19:11 passed and become effective by the time of this meeting?
6 10:19:18 A. Well, yes. We adopted that as Board rule during this
7 10:19:21 meeting.
8 10:19:21 Q. But had the state law become effective before this
9 10:19:2Z meeting?
10 10:19:28 A. I don't know about effective dates. The first thing I
11 10:19:31 ever knew about the law was during -- during this meeting when
12 10:19:31 we adopted it as Board rule.
13 10:19:3 Q. Did you announce your resignation at this meeting?
14 10:19:39 A. No.
15 10:19:10 Q. Did you decide -- did you vote to discipline a
16 10:19:1 Dr. Chris Kuhne -- that's spelled K-u-h-n-e -- as one of your
17 10:19:51 final decisions before you resigned?
18 10:19:51 A. If it says here in the records. I recall participating in
19 10:19:58 a meeting and taking votes. So if it says it here, then I did.
20 10:20:01 Q. Well, I'm not sure it says everything here, because I
21 10:20:0 believe you went into a private session. So if you could just
22 10:20:10 take a moment. And it would be, I believe, near the end of
23 10:20:15 this. But if it's not all here because you did an executive
24 10:20:19 session. When you go into executive session, are the minutes
25 10:20:23 from the executive session made public as part of these public
ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER
U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
Q. When you refer to Spine Abilene, was that the company that
11 was owned by Roberta Kalafut and Ed Brandecker? 13:5:51
12 A. Yes. 13:5:58
13 Q. And what years did you work with Spine Abilene? 13:5:58
14 A. It was from August of 2000 to February of 2006. 13:5Z:01
15 Q. And what was your position there? 13:5Z:11
16 A. I was the office manager. 13:5Z:13
75a
MEYERS - DIRECT
1 13:59:12 THE COURT: Well, where have you alleged something
2 13:59:11 about Dr. Dozier?
3 13:59:1 MR. SCHLAFLY: No. I didn't put that in my
4 13:59:18 compliant, Your Honor. That's -- my allegation is that
5 13:59:22 Dr. Kalafut was filing complaints against her competitors or
6 13:59:2Z had been filing --
7 13:59:2Z THE COURT: So suppose she said in the presence of
8 13:59:31 Ms. Meyers the worst things I could ever imagine about
9 13:59:3 Dr. Dozier. How does that make any allegation you have made in
10 13:59:11 your amended complaint more likely or less likely?
11 13:59:18 MR. SCHLAFLY: I'll withdraw the question. I'll ask
12 13:59:53 more directly with respect to the complaint process.
13 13:59:55 THE COURT: All right. You may proceed.
14 13:59:5Z Q. (BY MR. SCHLAFLY) Did Dr. Kalafut discuss the possibility
15 11:00:05 of having complaints filed against her competitors?
16 11:00:08 A. Yes.
17 11:00:09 Q. And could you elaborate on that? What were those
18 11:00:1 discussions? What would she say, to the extent you can
19 11:00:18 remember? You don't need to have exact words.
20 11:00:22 MR. RUBARTS: Your Honor, I have to object to that
21 11:00:21 question because it's not limited to any competitors that has
22 11:00:2 anything to do with this lawsuit.
23 11:00:2Z THE COURT: No. I'm going to hear it.
24 11:00:29 MR. RUBARTS: Okay.
25 11:00:29 THE COURT: Overruled.
ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER
U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
14 Q. (BY MR. SCHLAFLY) Did Dr. Kalafut discuss the possibility 13:59:5Z
15 of having complaints filed against her competitors? 11:00:05
16 A. Yes. 11:00:08
76a
MEYERS - DIRECT
1 11:00:32 A. She would get very upset at a patient that would come into
2 11:00:3 the medical practice that had seen one of these physicians.
3 11:00:39 And she'd make comments that she was going to turn their,
4 11:00:13 quote, ass in and various comments about their ability to care
5 11:00:1Z for a patient. And she would get them.
6 11:00:50 Q. And would this be after a patient had seen the competitor
7 11:00:53 and then came in to Kalafut's office?
8 11:00:55 A. Correct.
9 11:00:5 MR. RUBARTS: Your Honor, could I have a time frame
10 11:00:58 on these questions so I'll be able to --
11 11:00:59 THE COURT: All right. Pin it down to a time frame
12 11:01:01 so he can cross-examine.
13 11:01:02 MR. SCHLAFLY: Yeah. Your Honor, she said she worked
14 11:01:01 there --
15 11:01:05 THE COURT: No. Don't tell me. Everybody has a
16 11:01:0Z right to -- are we talking about 2010? Or we talking about
17 11:01:11 1956? You know, pin it down to some range here.
18 11:01:15 MR. SCHLAFLY: I understand, Your Honor. But she
19 11:01:1Z testified she worked from 2000 to 2006.
20 11:01:20 I can ask you, can you pin that down within the six
21 11:01:21 years you've already given us.
22 11:01:21 THE COURT: In addition to me, there is some reason
23 11:01:2 to believe that the Circuit may look at this case again. And
24 11:01:30 it would be nice if they could understand from the record
25 11:01:33 what's going on.
ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER
U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
A. She would get very upset at a patient that would come into
2 the medical practice that had seen one of these physicians. 11:00:3
3 And she'd make comments that she was going to turn their, 11:00:39
4 quote, ass in and various comments about their ability to care 11:00:13
5 for a patient. And she would get them. 11:00:1Z
6 Q. And would this be after a patient had seen the competitor 11:00:50
7 and then came in to Kalafut's office? 11:00:53
8 A. Correct. 11:00:55
77a
MEYERS - DIRECT
1 11:01:35 MR. SCHLAFLY: Yes, Your Honor. Thank you.
2 11:01:38 Q. (BY MR. SCHLAFLY) Can you pin that down within the time
3 11:01:11 period you worked for Drs. Kalafut and Brandecker?
4 11:01:11 A. I believe it was around 2002. Between 2002 and 2006.
5 11:01:50 Q. Was Dr. Kalafut on the Board during that time period?
6 11:01:5Z A. Yes.
7 11:01:58 Q. I'm sorry. Let me be more clear. Was Dr. Kalafut a
8 11:02:02 member of the Texas Medical Board during that time period?
9 11:02:0 A. Yes.
10 11:02:0 Q. Did Dr. Kalafut have friends on the Board whom she would
11 11:02:1 work with in filing or processing or manipulating such
12 11:02:25 complaints?
13 11:02:2 MS. JUREN: Objection, Your Honor. No foundation
14 11:02:28 laid for how this worked.
15 11:02:29 THE COURT: Overruled. I'm going to let him proceed
16 11:02:32 away here on this for a while.
17 11:02:35 A. Do you mind repeating that?
18 11:02:3Z Q. Fine. I'd be happy to. Did Dr. Kalafut have friends that
19 11:02:11 she would work with who were located at the Texas Medical Board
20 11:02:1 or the staff in connection with the complaint process?
21 11:02:50 A. Yes.
22 11:02:51 Q. And do you recall the names of some of those individuals?
23 11:02:51 A. I believe one was Ms. Robinson and Donald Patrick. And
24 11:03:03 there was another physician that was on there, but I can't
25 11:03:0 remember his name.
ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER
U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
Dr. Kalafut was very upset and said that she was
11 going to file a complaint. 11:3Z:15
83a
ROBINSON - DIRECT
1 15:13:31 eliminate the position of enforcement that you held previously?
2 15:13:3Z A. Right. I eliminated the position of enforcement director.
3 15:13:11 Q. And does that mean that you have those responsibilities in
4 15:13:11 addition to being executive director?
5 15:13:1Z A. Some of them.
6 15:13:18 Q. And what are those other responsibilities held?
7 15:13:53 A. So the enforcement director oversaw a grouping of four
8 15:13:5Z managers. And when that position was eliminated, some of those
9 15:11:01 responsibilities went to those four managers. And I retained a
10 15:11:05 few of them as executive director.
11 15:11:0Z Q. Which of those responsibilities did you retain. And, in
12 15:11:12 particular, I'm focusing obviously on the complaint process?
13 15:11:1 A. The higher level type of things remained with me. So, for
14 15:11:20 example, when I am in the office, I still participate on
15 15:11:2 quality review and I will have input on the rules and policy.
16 15:11:29 And I help run the committee. But the day-to-day operations on
17 15:11:3Z individual complaints or cases as a general rule are handled by
18 15:11:11 the individual managers.
19 15:11:13 Q. Do you have any medical background?
20 15:11:50 A. No, I do not.
21 15:11:50 Q. Do you ever review medical records?
22 15:11:53 A. I do not review them to give an opinion on them. We have
23 15:11:5 a medical director.
24 15:11:5Z Q. And who is your current medical director?
25 15:15:01 A. Dr. Robert Bredt.
ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER
U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
Q. (BY MR. SCHLAFLY) Now, when the licensee doesn't know that
6 someone has a financial conflict of interest, is there any way 1:0Z:23
7 the licensee challenge it? Can a licensee ask for that 1:0Z:29
8 disclosure, for example? 1:0Z:33
9 A. Not that I'm aware of outside of the governmental 1:0Z:31
10 filings. 1:0Z:3Z
86a
1 IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
2 AUSTIN DIVISION
3 THE ASSOCIATION OF AMERICAN PHYSICIANS ) AU:08-CV-00675-LY
& SURGEONS, INC., )
4 )
Plaintiff, )
5 )
VS. ) AUSTIN, TEXAS
6 )
THE TEXAS MEDICAL BOARD, et al. )
7 )
Defendants. ) OCTOBER 3, 2012
8
**********************************************
9 TRANSCRIPT OF BENCH TRIAL
BEFORE THE HONORABLE LEE YEAKEL
10 VOLUME 3 OF 4
**********************************************
11
APPEARANCES:
12
FOR THE PLAINTIFF: ANDREW LAYTON SCHLAFLY
13 939 OLD CHESTER ROAD
FAR HILLS, NEW JERSEY 07931
14
KAREN TRIPP
15 P.O. BOX 1301
HOUSTON, TEXAS 77251
16
FOR THE DEFENDANTS: NANCY K. JUREN
17 ERIC VINSON
OFFICE OF THE ATTORNEY GENERAL
18 P.O. BOX 12548
AUSTIN, TEXAS 78711
19
BOBBY M. RUBARTS
20 KONING RUBARTS, LLP
1700 PACIFIC AVENUE, SUITE 1890
21 DALLAS, TEXAS 75201
22 COURT REPORTER: ARLINDA RODRIGUEZ, CSR
200 WEST 8TH STREET
23 AUSTIN, TEXAS 78701
(512) 916-5143
24
Proceedings recorded by computerized stenography, transcript
25 produced by computer.
ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER
U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
87a
1 EXAMINATION INDEX
2
MARI ROBINSON, J.D.
3 DIRECT BY MR. SCHLAFLY 3
CROSS BY MS. JUREN 31
4 CROSS BY MR. RUBARTS 75
REDIRECT BY MR. SCHLAFLY 88
5 RECROSS BY MS. JUREN 96
6 MARI ROBINSON, J.D.
DIRECT BY MS. JUREN 145
7 DIRECT BY MR. RUBARTS 177
CROSS BY MR. SCHLAFLY 182
8
9
10
11 EXHIBIT INDEX
12 OFFD / ADM
Plaintiff
13 15 Temporary Restraining Order obtained by 29 ---
Ryan Nelson Potter, M.D. (March 20, 2009
14 (Pl. Exh. 9 in Opposition to Defs. Mot.
S.J.)
15
16 Formal Complaint filed against Ryan Nelson 22 27
16 Potter, M.D. (January 12, 2012) (Pl. Exh.
10 in Opposition to Defs. Mot. S.J.)
17
Defendant
18 13 Robert Kuhne, MD, TMB Final Order, 98 99
April 11, 2006, TMB 5000-6
19
46 Letter from Texas Medical Board to 68 69
20 Dr. Munton Dated January 3, 2007
21 47 Texas Medical Board Record - Letter to 71 71
Dr. Robinson Dated January 16, 2007
22
48 Letter from Texas Medical Board Dated 73 73
23 January 18, 2007 to Dr. Munton
24 49 Report of Historical Review of DDVs 79 ---
Assigned to Physicians
25
ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER
U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
88a
ROBINSON - DIRECT
1 09:10:05 did inform that individual that no more complaints would be
2 09:10:09 accepted from that source. Unless something happened like
3 09:10:11 that, I'm not aware of any exception that the Board would make
4 09:10:11 to following its standard policy.
5 09:10:1 Q. And you have no plans to make any exceptions in the
6 09:10:19 future?
7 09:10:20 A. Well, we can't change the statute. So, generally, no.
8 09:10:2 Q. Okay. So you feel you are constrained by the statute to
9 09:10:30 process complaints even if you have knowledge or reason to
10 09:10:31 believe that the complaint was filed in bad faith; is that
11 09:10:3Z correct?
12 09:10:38 A. Well, it would depend on what you mean by "knowledge." So
13 09:10:11 every complaint has to be investigated. If in the course of
14 09:10:11 investigating that, we found that there was no truth to the
15 09:10:1Z violations and it appeared that all of the allegations were
16 09:10:53 false and that it was in bad faith, then, no, I think at that
17 09:10:5 point we could investigate it. But the statute does require us
18 09:10:59 to look at it. So in that way I feel that we must do it
19 09:11:03 because the statute says we have to.
20 09:11:01 Q. And I understand that. I'm just trying to establish that
21 09:11:0Z that's the way you will handle -- continue to handle it in the
22 09:11:10 future.
23 09:11:11 So let me just give an example. If someone sends a
24 09:11:15 complaint to TMB, and there are, like, racist remarks all over
25 09:11:19 the complaint, the TMB procedure is to process that complaint
ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER
U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
If someone sends a
24 complaint to TMB, and there are, like, racist remarks all over 09:11:15
25 the complaint, the TMB procedure is to process that complaint 09:11:19
89a
ROBINSON - DIRECT
1 09:11:28 regardless of the racial animus that's in it, correct?
2 09:11:32 A. If the only thing in it were racial remarks, then, no,
3 09:11:3Z that would be non-jurisdictional. If there were other
4 09:11:10 allegations related to potential violations, then, yes, it
5 09:11:11 would be processed like any other complaint.
6 09:11:1 Q. Even though it's obvious from the face of the complaint
7 09:11:19 that this was a racist who filed it?
8 09:11:51 A. Yes. That doesn't mean they're lying about what occurred.
9 09:11:5Z Q. How about a politically motivated complaint? Same answer?
10 09:12:03 A. We will always look to determine if the allegations are
11 09:12:0Z accurate. So assuming that they are alleged violations of the
12 09:12:11 Act, then, yes, it would be put through the process.
13 09:12:11 Q. And the process includes getting the patient records from
14 09:12:20 the physician, correct?
15 09:12:21 A. Sometimes.
16 09:12:22 Q. So, for example, if someone knew that Mitt Romney had seen
17 09:12:32 a physician in Texas and somebody, a stranger, a political
18 09:12:3 hack, filed a complaint about the care provided to Mitt Romney
19 09:12:12 by a physician in Texas, then the process would require the TMB
20 09:12:18 to order those records -- those patient records about
21 09:12:51 Mitt Romney to go up to the TMB, correct?
22 09:12:5 A. Not necessarily. It would depend on what point in the
23 09:12:59 process it was dismissed.
24 09:13:01 Q. Well, I mean, if it's not dismissed -- I mean, the face of
25 09:13:05 the complaint is that some doctor, you know, injected stem
ARLINDA L. RODRIGUEZ, OFFICIAL COURT REPORTER
U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)