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William Y. Moores, M.D. is the author of the following declaration regarding Dr. Terry McEnany, (license C40535 Surrendered) former chief of the department of cardiovascular surgery at the San Francisco Kaiser-Permanente Medical Center.
While the origins of the problems regarding the consequences of Dr. McEnany’s incompetence as a cardiovascular surgeon certainly predate his arrival at the San Francisco Kaiser Permanente Medical Center, this chronological narrative deals with the aspects of Dr. McEnany’s surgical performance that occurred after his arrival in San Francisco in 1982. The Permanente Medical Group (TPMG) hired Dr. McEnany for the purpose of establishing an in-house cardiac surgery program that would be more cost effective for TPMG than their previous arrangements of paying non-Kaiser surgeons to perform all of TPMG’s required cardiac surgery in non-Kaiser hospitals.
Dr. McEnany presented himself as an excellent candidate to initiate the new program at the San Francisco facility. He came from a premier cardiac surgery training program at the Massachusetts General Hospital, and had previously filled positions as the chief of cardiac surgery programs at other institutions, the most recent being at Ohio State University. He was considered to be an excellent administrator, even by some of those who expressed concern about his surgical performance.
However, in spite of these initial positive recruitment factors, it became apparent to the anesthesiologists working closely with Dr. McEnany on a daily basis that his surgical performance was not adequate. The other physician group that came to have concerns about Dr. McEnany’s competence in the operating room was composed of the cardiologists that had to deal with the consequences of Dr. McEnany’s incompetence in their patients referred to him for surgery.
TPMG has a partnership system whereby a physician hired by TPMG must be advanced to a partnership status after three years of employment. Partnership in TPMG (original link was:http://physiciancareers.kp.org/ncal/benefits/shareholder.htm) is determined by a vote of the staff physicians already holding partnership. Consequently, in 1985 when Dr. McEnany came up for his partnership vote the cardiovascular anesthesiologists and cardiologists launched a strong political effort to deny partnership to Dr. McEnany. This partnership battle predated my arrival at TPMG in 1989, but it was my understanding that the battle was hard fought, and Dr. McEnany won partnership by a single vote. Dr. McEnany won this political battle because of the unqualified support of the TPMG administration as well as support from the other cardiovascular surgeon who started the program with Dr. McEnany, Dr. Keith Flachsbart. Unlike Dr. McEnany, Dr. Flachsbart was a very competent surgeon with excellent results, and was in 1985 the surgeon to whom most of the cardiologists referred their patients. Dr. Flachsbart was well aware of Dr. McEnany’s incompetence and made great efforts to insure that Dr. McEnany was not involved in the surgical care of his patients. I can only speculate as to why Dr. Flachsbart supported Dr. McEnany’s partnership in spite of the known problem with his surgical skills, but it is my belief that Dr. Flachsbart’s support was the result of Dr. McEnany convincing Dr. Flachsbart that the problems in the operating room would be resolved in the future.
Unfortunately Dr. McEnany’s problems in the operating room did not disappear. Dr. McEnany, now firmly secure with a successful partnership vote, continued to operate in a manner that resulted in unnecessary death and injury. The anesthesiologists and cardiologists who had fought so hard to protect their patients from Dr. McEnany’s incompetence were now despondent over the prospect of having to deal with Dr. McEnany’s incompetence on a “permanent basis.” The cardiologists did have the option of not referring their patients to Dr. McEnany, and most of the cardiologist at the San Francisco facility did avoid Dr. McEnany by referring their patients to Dr. Flachsbart and other members of the surgical staff that had joined the TPMG cardiovascular surgery staff. The cardiovascular anesthesiologists at the San Francisco facility were not so fortunate, for they were required to continue to provide anesthesia for Dr. McEnany’s operations if they wished to continue their employment with TPMG. This resulted in considerable conflict between the cardiovascular anesthesiologists and Dr. McEnany.
"I joined the cardiovascular surgery staff at the San Francisco Kaiser Permanente Medical Center in July of 1989. My taking of this job was largely due to the fact that I had met Dr. McEnany in 1971 when we were both residents working with the British heart surgeon, Mr. Donald Ross. I was very impressed with Dr. McEnany then, and I continued to admire his apparent professional success following the completion of his training at the Massachusetts General Hospital. "
"However, shortly after my arrival at the San Francisco TPMG facility I began to hear various “rumors” about Dr. McEnany’s operative problems. But since I, unlike the anesthesiologists, did not have the direct experience of being a witness to his operations, I treated the rumors as just that, and continued to side with Dr. McEnany’s view that the complaining anesthesiologists and cardiologists were merely rebelling against his firm administration of the cardiovascular surgery department."
Establishment of Dr. McEnany’s practice restrictions.
"During the first few years of my employment at TPMG I continued to be relatively unaware of the nature of Dr. McEnany’s operative performance. Of course the unsatisfactory results continued, and consequently after a series of several malpractice awards resulting from Dr. McEnany’s irrefutable negligence and incompetence, the TPMG administration realized in late 1992 that Dr. McEnany’s practice had to be reviewed. The “index case” that the Chief of Surgery, Dr. Douglas Grey cited as compelling the formal review was a case where Dr. McEnany forcefully removed a catheter entrapped in a patients heart, with the immediate result of the patient bleeding to death in the post operative intensive care unit. The circumstances of this case are described in the “Sixth Cause for Discipline,” which appears on pages 14-16 of the Medical Board’s “Accusation” against Dr. McEnany (See Exhibit 11)."
The TPMG administration knew that they had to initiate a formal evaluation of Dr. McEnany’s practice, but wanted to do it in the quietest manner possible, reflecting perhaps the fact that by now they had tolerated the consequences of Dr. McEnany’s incompetence for a decade. The cardiovascular anesthesiologists were not, however, merely content with investigating Dr. McEnany while allowing him to perform surgery without formal supervision. Most states have provisions in their statutes dealing with the practice of medicine that require any hospital to report to the medical board of that state any physician who, for reasons of concern regarding patient safety, has to have his practice monitored or proctored for a period of over 30 days. The TPMG administration was reluctant to agree to the demands of the anesthesiologists, as they knew that the relevant statute in California (Business and Professions Code Section 805) required them to formally report their proctoring of Dr. McEnany’s operative procedures. Such reporting would then not allow the TPMG administration to deal quietly with the issues of Dr. McEnany’s incompetence. The cardiovascular anesthesiologists were not sensitive to the administration’s concern for a quiet investigation and were insistent that all of Dr. McEnany’s cardiac operations using the heart pump be formally proctored. They had been forced to deal with the carnage resulting from Dr. McEnany’s incompetence for a full decade, and they were not about to let that situation continue. Consequently the members of the cardiovascular anesthesia staff simply told the TPMG administration that they would not administer anesthesia for any of Dr. McEnany’s heart operations unless another senior staff heart surgeon was assisting Dr. McEnany and was allowed to overrule Dr. McEnany regarding any of Dr. McEnany’s operative decisions that the assisting staff surgeon felt could endanger the safety of the patient being operated upon.
The crucial documents that established that there were major concerns regarding Dr. McEnany’s competence and that these concerns resulted in a formal restriction on Dr. McEnany’s operative privileges is presented in two memorandums from Dr. Grey, functioning both as the Chief of Surgery and an Assistant Physician-in-Chief, which were sent to the Assistant Chief of Cardiovascular Surgery, Dr. Nora Burgess and http://www.lawyersandsettlements.com/articles/00343/Kaiser_Permanente_harm.html. A copy of these memorandums dated 1/9/93 and 3/9/93 are contained in Exhibit 1. The writings in the 3/9/93 memorandum are unambiguous in describing that the role of the staff surgeon in the “new Cardiovascular Surgery departmental policy regarding assisting Dr. McEnany with his cases,” was a “proctoring” arrangement defined by the fact that “if an decision occurs during the conduct of the operation that the assisting surgeon deems could jeopardize the outcome of the operation, then the assisting surgeon may seek an opinion from a third member of his or her department as a ‘tie-breaker’.“ The fact that this “new policy” reflected concerns regarding the safety of Dr. McEnany’s operative performance is underscored on the second page of Dr. Grey’s memorandum where Dr. Grey writes that this policy is “a temporary solution to potentially reduce the situations were Dr. McEnany exposes himself (and subsequently, the patient) unnecessarily to problems by doing complex operative procedures with inadequate assistance.”
However, this new policy was not limited to “complex procedures,” as implied by Dr. Grey’s writings. The cardiovascular anesthesiologists insisted that the policy must be applied to all of Dr. McEnany’s cases that required the use of cardiopulmonary bypass (i.e., heart surgery that used extra corporeal circulation). The documentation establishing this fact is provided by a collection of the operative schedules for the period of time when the “new policy” was initiated with Dr. McEnany’s case on 3/2/93 and was continued until the time of his last case at TPMG on 7/26/93. This documentation is available but is not included among the twenty-five exhibits directly attached to this chronology. These operative schedules document that from 3/2/93 through 7/26/93 Dr. McEnany had as his assigned first assisting surgeon one of the three senior staff surgeons who agreed to participate in this arrangement (i.e., Dr. Flachsbart, KDF, Dr. Burgess, NB, or Dr. Richter, RR). I was also asked to participate in supervising Dr. McEnany’s operations, but declined offering to “perform one of Dr. McEnany’s cases as an extra case to off load the department of this burden.”
The surgical schedules that I retained from this period document that this arrangement of always having Dr. McEnany being “first assisted” by either KDF, NB, or RR occurred every time Dr. McEnany operated with the exception of a single day, April 13, 1993. That day both Dr. Burgess and I were off, leaving only Dr. Richter and Dr. Flachsbart available for supervising Dr. McEnany’s performance of his two scheduled routine aortocoronary bypass procedures (“CABG”). The program needed to run two rooms and do four cases that day, so Dr. Richter was unavailable for supervising Dr. McEnany, as he had to perform the other two cases that day. Dr. Flachsbart was not scheduled for the operating room, but he had a busy full day schedule in the clinic and was also not available to supervise Dr. McEnany. A departmental decision was apparently made to make an exception to the “new policy” and allow Dr. McEnany to perform his two routine cases using the non-supervisory first assisting of the cardiovascular fellow, Dr. Suzuki (MS).
The members of the cardiovascular anesthesia department were not happy with this exception granted by the cardiovascular surgery department and consequently insisted on a meeting to clarify what the arrangements must be if they are going to continue to offer anesthesia for patients being operated upon by Dr. McEnany. The meeting was convened on April 21, 1993, and following this meeting Dr. Grey issued a memo regarding what the “Format for assisting Dr. McEnany during Practice Review” would be. A copy of this memo is contained in Exhibit 1 immediately following the copy of Dr. Grey’s 3/9/93 memorandum to Dr. Burgess.
This memo specifies in five steps the arrangements that are to be followed to supervise Dr. McEnany and insure that Dr. McEnany does not “expose(s) himself (and subsequently, the patient) unnecessarily to problems…”
Dr. McEnany’s defense against the imposed practice review and restriction of his operative privileges.
Dr. McEnany was not happy about either the practice review or the proctoring arrangements that had been imposed upon him. Consequently he immediately engaged the services of a prominent physician defense attorney, Ken Freeman to assist him in countering this major threat to his lucrative position as TPMG’s chief of cardiovascular surgery at its San Francisco facility.
Using the time honored technique of blaming politics for the attack on his clinical performance he immediately charged that his operative performance was excellent, and that the members of the cardiovascular surgery department now working against him were doing so for financial reasons. This argument was not totally without merit, because the initiation of the Dr. McEnany’s practice review by the other senior members of the department Drs. Flachsbart, Burgess and Richter (I was not yet a senior member of the department at the time that the decision was made to review McEnany’s practice), did occur at about the same time that these three physicians discovered that Dr. McEnany’s salary was considerably greater than theirs. In spite of this factor, I believe the overwhelming evidence supports the simple fact that the reality of Dr. McEnany’s carnage that had been going on for the last decade was now just too great to ignore.
Dr. McEnany was well aware that it is not a simple task for a hospital to take disciplinary action (e.g. suspension/terminating of his clinical privileges and employment) against a physician based on the charge of incompetence. I also suspect that Dr. McEnany knew that having this battle fought out in full public view would be very embarrassing for TPMG, and that TPMG would be very anxious to deal with this issue in the most quiet fashion possible. The California statues dealing with the practice of medicine do have provisions that are designed to insure that a physician faced with a career ending charge of incompetence are provided with specific rights. To begin with, Dr. McEnany insisted that his practice review be conducted in the context of a practice review of the entire cardiovascular surgery department, and that the department wide practice review should be conducted by an external agency.
The TPMG administration agreed to Dr. McEnany’s demands and initiated contact with such an external agency, the American Medico-Legal Foundation in Philadelphia, Pennsylvania. I do not have copies of any of the correspondence between the TPMG administration and the American Medico-Legal Foundation, but the Medical Board’s investigation into my whistleblower complaint did obtain some of this correspondence and subsequently quoted portions of a letter sent to the Foundation on April 21, 1993.
The available documentation regarding Dr. Blumberg’s April 21, 1993 letter to the American Medico-Legal Foundation is found in paragraph number 7 on page 3 and 4 of the MBC “Notification” document (See Exhibit 9 at page 3 and 4) and as paragraph 30. C. on page 25 of the MBC “Accusation” against Dr. McEnany (See Exhibit 11 at page 25). According to the writings in these two Medical Board documents Dr. Blumberg referred in his letter to, “[t]wo recent unexpected patient deaths, “ “a higher than expected mortality rate for [Dr. McEnany’s] patients,” “a higher incidence of surgical complications,” “rough handling of tissues,” “a high incidence of torn vessels, ‘air locks,’ 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.” Also listed in the two MBC documents was Dr. Blumberg’s assertion that Dr. McEnany was “an individual of forceful personality,” who “has been characterized as unwilling to seek or accept the advice of his colleagues,” and that Dr. McEnany’s behavior “on at least two occasions, has directly jeopardized patient care.”
It is hard to overemphasize the importance of Dr. Blumberg’s April 21, 1993 letter in substantiating that the TPMG administration was well aware that Dr. McEnany had generic deficiencies in his professional performance as a cardiac surgeon that were most likely uncorrectable. While TPMG and Dr. McEnany have alleged in several statements generated since the public revelation of TPMG’s 805 violation (See Exhibit 9) that Dr. McEnany’s practice review was automatically triggered by a specific malpractice settlement, Dr. Blumberg’s own words substantiate that the real reason for Dr. McEnany’s practice review and the restrictions of his operating privileges that TPMG characterized as a “methodology … for assisting Dr. McEnany in surgery,” (See Exhibit 17 at pages 3 and 4) was because Dr. McEnany carried out the surgical care of his patients in a manner that “directly jeopardized patient care.” Dr. Blumberg, as the Chief of Medical-Legal Affairs at the San Francisco Kaiser-Permanente facility, was an integral part of that TPMG administration.
In my view Dr. Blumberg’s writings in his 4/21/93 letter substantiate the allegation that Dr. Blumberg and the TPMG administration knew very well that if Dr. McEnany were allowed to resume an unsupervised practice of cardiac surgery, an unsupervised practice that TPMG felt was too dangerous to allow for its own patients, innocent and unknowing non-TPMG patients would needlessly die.
The “secret deal” that initiated TPMG’s fraudulent certification of Dr. McEnany as an unrestricted cardiovascular surgeon about whom no safety concerns had been raised.
None of the parties in the practice review and proctoring of Dr. McEnany were guilty of any malfeasance or violation of California law until the date of April 2, 1993 when more than thirty days had elapsed since the proctoring. On this day, a day on which Dr. McEnany performed a cardiac operation with the required staff first assisting being provided by Dr. Richter, TPMG was required to file within thirty days an 805 report informing the Medical Board of California that it currently had on its staff a surgeon who had restrictions placed on his operating privileges for more than 30 days. No 805 report was issued to the Medical Board at that time, and as documented by the Medical Board’s subsequent investigation (See Exhibit 9, paragraph 10 on page 5) an 805 report was never issued to the Medical Board in spite of the fact that Dr. McEnany continued to have his operative privileges restricted for a total of almost five months (i.e., 3/2/93 through 7/26/93).
The failure of the TPMG administration to file the required report may have been due to its continued hope that it could continue to keep its tolerance of a decade of Dr. McEnany’s incompetence under wraps in the hope that some arrangement could be worked out to deal with this “very difficult matter.” In fact their hopes were answered as Dr. McEnany, through his attorney Ken Freeman, proposed an arrangement that would continue to allow TPMG avoid the embarrassment and possible liability from Dr. McEnany’s decade of incompetent surgery at TPMG, and at the same time would allow Dr. McEnany the opportunity to continue his lucrative career as an unrestricted cardiovascular surgeon. Dr. McEnany had to realize that despite his best efforts and the efforts of his attorney Mr. Freeman, the prospects of Dr. McEnany being able to continue as a highly paid cardiac surgeon at TPMG were remote.
Dr. McEnany knew, however, that there are other high paying positions in cardiac surgery outside of California, and so at some time in the spring of 1993 he convinced Luther Hospital in Eau Claire Wisconsin that he was the perfect person to initiate their new program in cardiac surgery. Of course Dr. McEnany also had to know that if the major concerns and consequences of his ten year TPMG surgical career were revealed he would not be able to take his new job of initiating Luther Hospital’s new cardiac surgery program.
To meet the special requirements of both Dr. McEnany and TPMG, a special deal was worked out between Dr. McEnany’s attorney, Ken Freeman California Bar #58806, and TPMG’s Vice President and
General Counsel, W. William Petrick California Bar #84862.
Four “issues” or “matters” were addressed in this secret deal that was memorialized in an exchange of letter between Mr. Freeman and Mr. Petrick.
The written proposal of the secret deal is memorialized in a letter authored by Mr. Freeman and sent to Mr. Petrick on June 18, 1993. A copy of this letter appears as the first item in Exhibit 2. Mr. Freeman lists for Mr. Petrick four “details” that require “agreement” before Dr. McEnany agrees to offer a quiet “resignation from the Permanente Medical Group effective September 30, 1993.”
The first “detail” is that “the practice review will be terminated upon submission of Dr. McEnany’s resignation.” The second detail involves a request that TPMG violate the 805 reporting statutes by insuring that “no reports will be filed with any agencies concerning Dr. McEnany.” Thirdly, Mr. Freeman is asking that in regard to any of the information associated with Dr. McEnany’s investigation file, there is “an agreement that all of this information will remain confidential.” Finally Mr. Freeman requests that TPMG write a laudatory recommendation for Dr. McEnany to use in obtaining a position “any time in the future.”
Dr. McEnany and his attorney do not have to wait long for a confirmation of TPMG’s willingness to accommodate the four listed “details.” On June 28, 1993 Mr. Freeman received a letter from Mr. Petrick that is dated June 25, 1993. In this letter, a copy of which appears as the second item in Exhibit 2, Mr. Petrick memorializes the fact that TPMG has reached agreement regarding all of the issues or matters requested in Mr. Freeman’s letter.
Mr. Petrick lists as the first matter, the requested laudatory letter of recommendation that will be sent to Dr. McEnany’s new employer in Eau Claire Wisconsin. Mr. Petrick changes Mr. Freeman and Dr. McEnany’s English around, but Mr. Petrick’s agreed upon letter is essential identical to that written by Mr. Freeman and Dr. McEnany. Mr. Petrick agrees fully with the request that TPMG “will terminate the practice review of Dr. McEnany upon submission of Dr. McEnany’s written resignation and its acceptance by the TPMG Board of Directors.” As the third matter in Mr. Petrick’s letter, he agrees to intentionally violate California’s 805 reporting statute. Mr. Petrick writes, “Third, we agree that we will not file any report with any external agency concerning Dr. McEnany based on events that have occurred to date.” Finally as Mr. Petrick’s fourth matter he states that TPMG “will agree to keep all of the quality assurance information which has been gathered to date regarding Dr. McEnany’s practice confidential.”
TPMG’s anticipation of continuing to keep all of the issues regarding Dr. McEnany’s incompetence out of the public view is further reinforced when Mr. Petrick provides Mr. Freeman with the following written thank you, “Ken, I want to thank you for your cooperation in what could have turned out to be a very difficult matter.” Mr. Petrick’s letter further documents that the decision to carry out this illegal deal was agreed to by both Dr. Philip Madvig, the Physician-in-Chief of TPMG’s San Francisco facility, and Dr. W. Harry Caulfield, who at that time was in the highest Northern California TPMG executive position serving as the Executive Director or CEO of this medical corporation. At the very end of Mr. Petrick’s letter there is the notation that copies of the letter were sent to “Philip Madvig, MD” and “W. Harry Caulfield, MD”
Of course, all of us participating in Dr. McEnany’s practice review and the restriction of his operative privileges were totally unaware at the time of this secret deal memorialized by the June 1993 letter exchange. Many of us did suspect however that there was “something rotten in Denmark,” when Dr. Madvig abruptly announced at one of our meetings that Dr. McEnany had agreed to resign from TPMG and that the unresolved investigation into Dr. McEnany competence would be immediately terminated. After Dr. Madvig informed all of us that this was “the best solution to the problem,” one of the anesthesiologists asked Dr. Madvig if the Hospital in Eau Claire was going to be informed about Dr. McEnany’s practice review and the restrictions on his operating privileges. Dr. Madvig’s response, “No, not if we are not asked.”
Dr. McEnany’s fraudulent assertions on his application for staff privileges at Luther Hospital.
Every hospital has a requirement that physicians requesting various levels of hospital privileges must formally request those privileges and must reveal any disciplinary actions taken out of concern that the applying physician was considered to have issues regarding his or her safety and competence. Luther Hospital was no exception to this requirement and consequently its application for staff privileges requested that Dr. McEnany answer questions designed to reveal if action was taken previously regarding a physician’s competence to practice medicine.
Among the questions posed on Dr. McEnany’s application were the following:
Based on the fact that Dr. McEnany had a “reduction” in his staff
membership in that he was not allowed to operate independently, and based on the fact that his “clinical privileges” had been granted with the “stated limitation” that he was not permitted to operate without supervision, Dr. McEnany should have answered both of these questions in the affirmative. However as revealed in the copy of his Luther Hospital application presented as Exhibit 3, Dr. McEnany chose to answer both of the above questions in the negative. With these answers, Dr. McEnany made assertions that his clinical privileges to perform cardiac operations while at TPMG had never been “reduced” or “granted with stated limitations.” As clearly established by the 1997 investigation of the Medical Board of California (MBC), both of these written assertions were false, and Dr. McEnany was guilty of submitting a fraudulent application to Luther Hospital in July of 1993.
Fraudulent recommendations arranged by Dr. McEnany Luther Hospital also required Dr. McEnany to submit written recommendations from physicians familiar with his clinical performance as part of the its credentialing a new physician for clinical privileges. The usual practice for the fulfillment of this requirement would be for Dr. McEnany to ask specific physicians to write letters of recommendations on their professional letterhead. However Dr. McEnany choose instead to arrange for these written recommendations through a commercial firm, Cejka and Company. The references generated by this firm were prepared after the firm had interviewed the specific physicians. As stated in these recommendations the writings were alleged to have reflected the views and beliefs of specific physicians. Cejka and Company generated three of these recommendations after interviews had been conducted with three physicians, Drs. Susens, Richter and Hill. Two of these physicians, Dr. George Susens and Dr. Richard Richter were staff physicians at the San Francisco Kaiser Permanente Medical Center, must have been fully aware of the fact that Dr. McEnany was in the middle of a practice review, and that he had a restriction on his operating privileges in that he was not allowed to operate unsupervised. The fact that Dr. McEnany’s cardiac operations could only be conducted with proctoring was obviously apparent to Dr. Richter since he was functioning as one of the proctors.
In spite of this reality, all three of the recommendations contained the following false statements. Under the section of the review dealing with “RISK FACTORS” all three of the recommendations contain the same two false statements:
McEnany has never come before any committee of a hospital or peer
review group for review nor has he had his privileges revoked or
suspended. He has never had any disciplinary action taken against
him and his professional competence has never been questioned.
These statements on all three recommendations come after the text of each physician’s specific comments and appear after the signature of the submitter, Jan Vogt. I suspect that the individual physicians did not generate these statements with this exact same wording in all three recommendations; rather it seems more plausible that Dr. McEnany arranged for the inclusion of these two false statements, perhaps with TPMG’s support. Copies of these recommendations are presented as Exhibit 4.
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, regarding Kaiser Permanente's violation of California Business and Profession Code - Section 805 - In short Kaiser covered up a terribly negligent physicians conduct, including the fact this particular cardiologist, Michael Terry McEnany, was no longer allowed to operate without physician supervision at any time : 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.
McEnany is offered a deal whereas if he leaves the state and gives up his California Medical License no action will be taken against him. If he comes back though and wants his license back they will take action. Unfortunately for the people in Wisconsin that didn't know about this deal, a lot of people were hurt.
TPMG’s fraudulent certification of Dr. McEnany as a cardiac surgeon with unrestricted clinical privileges to perform cardiac surgery.
The credentialing process also required that Luther Hospital specifically obtain statements for an applicant’s previous hospital that the applicant had the same clinical privileges at the previous hospital that the applicant was requesting be granted at Luther Hospital. Letters requesting such certification were sent to the relevant TPMG physicians responsible for granting Dr. McEnany his privileges for performing cardiac surgery at TPMG. Dr. McEnany requested privileges from Luther Hospital to perform, unsupervised, the entire range of cardiac surgery, including those procedures requiring cardiopulmonary bypass that he had only been allowed to perform with a proctor. A copy of the list of procedures for which Dr. McEnany was requesting privileges is provided in Exhibit 3 following the copy of his application for appointment to the Luther Hospital medical Staff.
Three letters dated 7/28/93 requesting confirmation that Dr. McEnany had the same unrestricted clinical privileges while working at TPMG that he was requesting for his Luther Hospital practice were sent by the Chairman of the Luther Hospital Credentials Committee, Dr. William F. DeCesare. Dr. DeCesare’s letter addressed to the “Chairman, Department of Surgery, Kaiser Hospital” received a response by Dr. Douglas Grey, while the two letters addressed to “Administration, Kaiser Hospital,” and to “Frank Alvarez, M.D., Kaiser Hospital,” were responded to by Dr. Philip R. Madvig.
In Dr. Grey’s letter of response, dated August 31, 1993, Dr. Grey makes the following statement that he had to know was false, “The privileges under which he practiced in San Francisco were virtually identical to those requested at the Luther Hospital and therefore I would support his request for those privileges.” Dr. Grey knew that his written statement was not true since it was Dr. Grey who was in charge of the arrangements that did not allow Dr. McEnany to perform cardiac surgery using cardiopulmonary bypass unless Dr. McEnany was proctored by either Drs. Flachsbart, Burgess, or Richter.
Dr. Madvig’s two responses provided in letters dated September 24, 1993 and November 18, 1993 were also false. In his letter of September 24, 1993 Dr. Madvig writes, “The privileges requested by Dr. McEnany in his LutherHospital privilege delineation form are similar to those privileges he has enjoyed at Kaiser Foundation Hospital and consistent with his training and the scope of this experience.” Dr. Madvig writes in his second letter dated November 18, 1993, “The privileges he has requested are similar to those held while on our staff, and are consistent with his training and experience.” Like Dr. Grey, Dr. Madvig knew that these two statements made in his two letters to Dr. DeCesare were not true, for Dr. Madvig as the TPMG Physician-in-Chief of the San Francisco facility had overall responsibility for both Dr. McEnany’s practice review and the clinical privilege restriction that did not allow Dr. McEnany to perform cardiac surgery without the immediate presence of a supervising proctor.
Copies of the three exchanges of letters between Luther Hospital and TPMG are provided in Exhibit 5.
Termination of the peer review body formed to administer Dr. McEnany’s practice review and restrictions on his operative privileges.
The meeting at which Dr. Madvig announced the resignation of Dr. McEnany to all of us comprising the peer review group administering Dr. McEnany’s practice review and operative proctoring was our final meeting. I did not take notes regarding that final meeting, but I believe that this final meeting was in early June before Dr. McEnany wrote me a letter dated June 15, 1993 announcing his resignation and intention to start a new program in cardiac surgery at Luther Hospital.
While there were some expressions of concern regarding whether the paper trail regarding Dr. McEnany’s practice review and proctoring were going to be appropriately concluded, all of us involved in this process were relieved that the decade of having to deal with Dr. McEnany’s carnage in the operating room had come to an end. I certainly was among those who had concern about the circumstances of Dr. McEnany resignation and his intention to start a new program in Wisconsin. Luther Hospital was associated with the Mayo Clinic, and I knew a senior member of the Mayo Clinic cardiac surgery staff, Dr. Hartzel Schaff, quite well. Dr. Schaff and I had shared research interests and we both belonged to a small society of academically inclined cardiac surgeons. I considered picking up the phone to give Dr. Schaff a call to alert him to the circumstances of Dr. McEnany’s practice review and proctoring at the time of his resignation from TPMG. I didn’t make that call then, figuring that Dr. McEnany had obtained his position with full disclosure of the circumstances of his resignation. I was familiar with the 805 reporting statues of the State of California, and I assumed that TPMG was in full compliance with state law that required an 805 report to be filed with the Medical Board whenever a physician is proctored for a period in excess of 30 days, and/or resigns in the middle of an investigation into his competence. I knew that Dr. McEnany’s circumstances required an 805 report based on both of these circumstances. Several of us even discussed trying to find out if an 805 report had in fact been filed on Dr. McEnany, but none of us were able to think of a way we could find that out. For the next few years the circumstances of Dr. McEnany’s tenure at TPMG faded from our minds and we looked forward to building an improved program that no longer included an incompetent surgeon as its chief.
Newspaper article in the April 21, 1996 edition of the Milwaukee Journal-Sentinel.
It was during one of my operations at which the anesthesiologist for me, Dr. Wayne Bellows mentioned that he had heard that Dr. McEnany was having the same operative problems and poor results in Wisconsin that we had dealt with in 1993. Upon hearing this I realized that I now had to make my call to Dr. Schaff. I did make that call and discovered that Dr. Schaff was among those who reviewed Dr. McEnany’s application for staff membership at Luther Hospital. When I asked Hartzel whether or not Dr. McEnany had disclosed the circumstances of his practice review and proctoring as is required in all applications for hospital privileges, Hartzel said that the application made no mention of either the practice review or the proctoring.Shortly after making my call to Hartzel, a copy of an article listing the results of the 57 surgeons performing heart surgery in Wisconsin was sent to a member of our staff by a former physician assistant who was now working in Wisconsin. I made a copy of the article, which appeared in the April 21, 1996 edition of the Milwaukee Journal-Sentinel. After reviewing the article and doing a little math with the published figures I discovered that Dr. McEnany had the worst mortality among all 57 surgeons when his expected mortality was compared with his actual mortality. A copy of this newspaper article is presented as Exhibit 6.
Notification to Midelfort Clinic that Dr. McEnany had issues regarding the “outcomes” of his operations while working at TPMG.
Following my phone conversation with Dr. Schaff and my discovery of the article in the Milwaukee Journal-Sentinel, I sent Dr. Schaff documentation regarding Dr. McEnany’s practice review and proctoring. Dr. Schaff then provided this material to Mr. Robert M. Moore, Mayo Clinic’s Senior Counsel. Subsequently Mr. Moore wrote to the legal counsel for Midelfort Clinic, the physician corporation that had hired Dr. McEnany to start the cardiac surgery program at Luther Hospital. In a letter dated July 15, 1996, Mr. Moore wrote to Midlefort’s legal counsel, Andra Palmer and informed her that that he recently received information suggesting that, “shortly before coming to Midelfort, questions were raised at Kaiser about the outcomes of some of Dr. McEnany’s surgeries, that his surgical practice may have been monitored by his surgical colleagues, and that these items may not been shared with Midelfort during the employment application and credentialing process.” A copy of Mr. Moore’s letter to Ms. Palmer is presented as Exhibit 7.
In August I again called Hartzel to find out as to whether any action was going to be taken by Luther Hospital and the Midelfort Clinic to insure that Dr. McEnany was not subjecting his patients to death and injury from incompetent cardiac surgery. Hartzel informed me of his having provided my information to the Mayo Clinic legal department, and of how that information had been passed on to the legal department at Midelfort Clinic. When I asked Hartzel if any action was going to be taken in Wisconsin to protect patient safety he informed me that there would be none. Hartzel informed me that the only thing Midelfort Clinic and Luther Hospital did in response to this information was to discuss the information with Dr. McEnany, and to then “re-read Dr. McEnany’s recommendations.” The establishment of the new cardiac surgery program at Luther Hospital had apparently been a financial success, and the responsible individuals at Luther/Midelfort were apparently happy to be convinced by Dr. McEnany that no real concerns had been raised at TPMG regarding his competence. Repeating an argument he used when confronted with the practice review at TPMG in 1993, Dr. McEnany said that the information that I had supplied to Luther/Midelfort was not accurate and was driven by politics.
Submission of my whistleblower complaint to the Medical Board of California.
I was both surprised and disheartened to find that Luther Hospital was not going to take any actions similar to those taken by TPMG in 1993 to protect its patients from the deficiencies of Dr. McEnany’s surgical performance. I decided that the only way to get Luther Hospital to deal with the issues of Dr. McEnany surgery was to establish that TPMG had violated the 805 reporting statutes at the time of Dr. McEnany’s resignation and that this statutory violation had allowed Dr. McEnany to get his position under false pretenses. I reasoned that if TPMG’s 805 violation was publicly established then Luther Hospital would be forced to consider protecting its patients from potential death and injury resulting from Dr. McEnany’s inadequate surgical performance.
I was not anxious to submit a formal complaint to the Medical Board of California as an individual. Rather I wanted the complaint to come from several of us in cardiovascular surgery and cardiovascular anesthesia that knew full well that Dr. McEnany’s carnage that we had to endure for a decade was now being thrust upon unsuspecting patients in Wisconsin. Unfortunately I didn’t have to go very far with my efforts to summon additional supporters for a complaint to the Medical Board before finding that none of these individuals were even remotely interested in taking the risks associated with such a complaint. I felt that the complaint had to be generated, and if it could not be a group submitted complaint, then it would have to be an individual complaint.
Consequently on October 31, 1996 I submitted a formal complaint to the Medical Board of California asking them to investigate the possibility that TPMG’s Physician-in-Chief, Dr. Philip Madvig, may have violated the 805 reporting statute in connection with the 1993 resignation of Dr. McEnany. A copy of this letter that I sent to the Medical Board is presented as Exhibit 8.
The Medical Board’s investigation of Dr. Madvig’s violation of the 805 reporting statute.
The Medical Board’s response was both rapid and appropriate. Shortly after the Medical Board received my letter I was contacted by one of the Medical Board’s investigators, Mr. Jim Ball. Over the next several months I had several phone conversations with Mr. Ball and provided him with addition material. Mr. Ball subsequently contacted several other individuals in cardiovascular surgery and cardiovascular anesthesia to get views in addition to mine. I was pleased when these contacted individuals provided information that supported my allegations. Furthermore several of these physicians provided Mr. Ball with affidavits to use in its investigation and eventual proposed punishment for the 805 violation.
Mr. Ball’s efforts took almost a year, but on September 5, 1997 the Medical Board issued a “Notification of violation and imposition of civil penalty” against Dr. Madvig as well as against the hospital administrator for the Kaiser-Permanente Medical Center in San Francisco, Mr. Frank D. Alvarez. A copy of this Medical Board “Notification” document appears as the first item in Exhibit 9.
When I received a copy of this document I sent a copy on to Dr. Schaff in the hopes that with the production of this document it would be impossible for Luther Hospital to continue with its failure to take action to protect the patient’s being operated upon by Dr. McEnany. My letter to Dr. Schaff, dated November 20, 1997 is presented as the second item in Exhibit 9.
The responsible individuals at both Luther Hospital and Midelfort Clinic now realized that they would be libel for injury and death incurred from Dr. McEnany’s operations if they did not take action to protect their patients. Consequently Luther Hospital suspended Dr. McEnany’s operating privileges and initiated a peer review of Dr. McEnany’s practice at Luther Hospital.
The Medical Board’s investigation into Dr. McEnany’s practice at TPMG and the issuance of an “Accusation” against him.
I had included summaries of twenty-six of Dr. McEnany’s cases that had been reviewed by the TPMG peer review body of which I was a member. The Medical Board reviewed these cases, and felt that the negligence and incompetence that these cases demonstrated warranted the taking of disciplinary action against Dr. McEnany. Following this investigation into Dr. McEnany’s TPMG practice Mr. Thomas P. Reilly, a Deputy California Attorney General, prepared an accusation against Dr. McEnany’s California license. Mr. Reilly was concerned that the Wisconsin agency responsible for issuing licenses to practice medicine should also be informed of the California investigation and the anticipated disciplinary action to be taken against Dr. McEnany. Consequently Mr. Reilly wrote Mr. Wayne Austin of the Wisconsin Department of Regulation and Licensing to inform him of the California investigation and anticipated disciplinary action. A copy of Mr. Reilly’s letter to Mr. Austin dated April 16, 1998 is presented as Exhibit 10.
Both Mr. Reilly and the Medical Board of California were successful in getting an accusation issued against Dr. McEnany. A copy of this accusation dated May 19, 1998 and extending to just under 30 pages is contained in Exhibit 11. This accusation summarized eight cases that the Medical Board felt constituted episodes of incompetence and negligence of a sufficient degree as to require disciplinary action.
At least a year before the issuance of this accusation and months before the Medical Board issued the “Notification” against Dr. Madvig, Dr. McEnany and his attorney became aware of the Medical Board’s investigation sparked by my October 31, 1996 whistleblower complaint. Anticipating that the Medical Board might now take a disciplinary action against Dr. McEnany, Dr. McEnany’s attorney Ken Freeman wrote a “damage control” letter to Jim Ball of the Medical Board. Mr. Freeman attempted to deflect any disciplinary action against his client by making several false statements regarding Dr. McEnany’s practice review and monitoring of his operations.
Mr. Freeman alleged that the concerns about the quality of Dr. McEnany’s patient care “lacked any objective substance or merit,” and that Dr. McEnany did not leave TPMG to avoid the consequences of the investigation but rather because “the work environment had become toxic and intolerable.” Mr. Freeman, realizing that I was the origin of the complaint regarding Dr. McEnany’s surgical performance, also provided Mr. Ball with additional false statements alleging that I was an incompetent TPMG surgeon that had been “prohibited from performing surgery at Kaiser San Francisco and physically barred from the premises … because of dilatory and inadequate care of critically ill patients.” A copy of Mr. Freeman’s letter dated May 13, 1997 sent to Mr. Ball is presented as Exhibit 12. Mr. Freeman’s false statements quoted above appear on page 2 of his letter.
While Luther Hospital believed Dr. McEnany statements in the summer of 1996 discounting the information I had provided to them through Dr. Schaff, the issuance of the “Notification” against Dr. Madvig now convinced them that my information had substance and could not be ignored any longer. The resultant peer review of Dr. McEnany’s practice was in full swing by January of 1998, and the Luther Hospital peer review body was very much concerned with the possibility that Dr. McEnany had restrictions on his operating privileges at the time of Dr. McEnany’s TPMG resignation. It was also now apparent that Luther Hospital had not been made aware of this situation because of the secret deal revealed in the “Notification” document.
Mr. Freeman decided to bring in TPMG to assist in an effort to deny that Dr. McEnany ever had restriction placed on his privileges to operate. In a letter dated January 28, 1998 Mr. Freeman again wrote Mr. Petrick to request that Mr. Petrick write Luther Hospital and provide “a statement confirming that Dr. McEnany’s privileges were never restricted,” as well as provide an additional “statement confirming that Kaiser/TPMG reached no conclusions about any concerns over the quality of Dr. McEnany’s practice.” A copy of Mr. Freeman’s letter to Mr. Petrick making this request for these two statements is provided in Exhibit 13.
TPMG readily agreed to Mr. Freeman’s request just as they did in 1993. In a letter dated, February 23, 1998, Mr. Petrick wrote Dr. William C. Rupp at Luther/Midelfort and enclosed a copy of Dr. Blumberg’s April 21, 1993 letter referred to in both the “Notification” and “Accusation” Medical Board documents. (See Exhibit 9 at paragraph 7. on pages 3 and 4, as well as Exhibit 11 at paragraph 30. C. on page 25) In this letter Mr. Petrick wrote that “no external review was conducted, and no conclusions were reached concerning the issues outlined in Dr. Blumberg’s letter.” Mr. Petrick made the following statement regarding the allegation that Dr. McEnany had restrictions of his operating privileges, “It was always our belief that Dr. McEnany’s clinical privileges were not restricted.” A copy of this letter making those very misleading statements is presented in Exhibit 14.
Dr. McEnany’s surrender of his California and Wisconsin licenses to practice medicine.
The combined efforts of TPMG and Dr. McEnany to deny the existence of Dr. McEnany’s adverse practice review and restrictions on his operating privileges were not successful and Dr. McEnany’s employment with the Midelfort Clinic and his clinical privileges at Luther Hospital were terminated. Furthermore since the licensing and regulating agencies both in Wisconsin and California were now fully aware not only of McEnany’s incompetence, but also of his dishonesty in arranging the secret deal, Dr. McEnany had to surrender both his California and Wisconsin licenses to practice Medicine. Copies of Dr. McEnany’s stipulation for the surrender of his California license, as well as the order for surrendering Dr. McEnany’s Wisconsin license are both presented in Exhibit 15.
Revelation of the circumstances of Dr. McEnany’s termination from Luther/Midelfort.
Peer review investigations are always confidential and the public is not allowed to have information regarding these proceedings. Furthermore no information generated in a peer review process can be used in litigation. The reason for this enforced confidentiality is to protect physicians from legal liability when they frankly discuss possible “mistakes” in their care at death and complications conferences that are designed to improve the quality of patient care by discussing ways that patient care might have been improved or modified to avoid adverse outcomes.
While the specifics of Dr. McEnany’s peer review investigation were confidential, and remain so to this day, it was not possible to keep the fact that Dr. McEnany was terminated from Luther/Midelfort out of the local papers. The first disclosure of Dr. McEnany’s termination was provided in an article entitled, “Surgeon’s ouster raises questions,” which appeared in the July 19, 1998 edition of Eau Claire’s primary newspaper, the Leader-Telegram. This first article did not discuss any of the issues of Dr. McEnany’s false certification by TPMG that played such a major role in Dr. McEnany’s termination from Luther/Midelfort as well as in the surrender of his two state licenses because these issues were unknown to the journalists writing the story of McEnany’s departure from Luther/Midelfort.
One of the journalists responsible for writing this initial story, Eric Lindquist, did become familiar with the irregularities of Dr. McEnany’s departure from TPMG when he and I made contact in January 1999. During our initial phone conversation I discussed Dr. McEnany’s continuing practice review and proctoring at the time of his TPMG resignation. Following our phone conversation I mailed him a copy of the Medical Board’s Notification that had been filed against Dr. Madvig and Mr. Alvarez. Upon receiving this document, Mr. Lindquist contacted the Medical Board of California and also obtained a copy of the Accusation against Dr. McEnany.
Mr. Lindquist used this documentation and the information from our phone conversation as the basis for a series of articles that appeared in the Leader-Telegram on February 7 and February 21 of 1999. Copies of the newspaper articles from the 7/19/98, 2/7/99, and 2/21/99 editions of the Leader-Telegram, do not appear among the twenty-five exhibits directly associated with this chronology. Copies of these articles, as well as additional pertinent articles from the San Francisco Chronicle, and TIME magazine are presented as documents in a binder entitled, “APPENDIX DOCUMENTS RE: (1) Allegations of Violation of California Law by TPMG and (2) The MBC’s Failure to Adequately Address These Violations, 6/15/05.” Mr. Lindquist’s article of 7/19/98 appears under Tab H while those articles presented in the 2/7/99 and 2/21/99 editions of the Leader-Telegram are found under Tab I and Tab J.
The response to these newspaper articles was significant, and as a result 28 malpractice claims were filed by the families of patients that had either died or were significantly injured following operations performed by Dr. McEnany. In regard to the claims being handled by the attorney, Drew Ryberg, I was contacted and asked to serve as an expert witness on behalf of Mr. Ryberg’s clients.
During the Luther Hospital peer review of Dr. McEnany that eventually led to his termination, the attorneys for McEnany and Luther/Midelfort were adversaries. However with the emergence of multiple malpractice claims that were filed not only against McEnany, but against Luther/Midelfort for failure to provide protection against McEnany’s incompetence, these attorneys became united in an effort to defeat the malpractice claims. TPMG also joined in this unholy alliance, as it understood that if any of these claims were successful TPMG would also incur liability as a result of its fraud in asserting that Dr. McEnany was a competent surgeon who was unrestricted in his practice and about whom no quality concerns had been raised.
TPMG’s illegal actions in assisting Dr. McEnany defend against his Wisconsin malpractice suits.
All of the united parties defending Dr. McEnany against the 28 malpractice claims seemed to subscribe to the theory that the best defense would be to destroy the credibility of the whistleblower and insider that was now functioning as an expert witness for several of the plaintiffs.
As I came to appreciate somewhat later, this trio of powerful parties working to destroy my credibility as a witness to the malfeasance associated with McEnany’s false certification was to include a fourth party with the addition of the Medical Board of California.
Dr. Blumberg’s violation of professional confidence.
TPMG first blatantly illegal action taken in the discrediting effort came when Dr. Blumberg violated Business and Professions Code 2263 by providing a portion of my confidential medical record to one of Dr. McEnany’s attorneys Mr. Colwin. Mr. Colwin then used the writing in my personal Kaiser-Permanente medical record in an effort to discredit me in an adverse deposition taken on July 10, 2001. The medical record document used in this effort was a confidential psychiatric report that Dr. Blumberg, functioning as my physician, ordered in 1997 as part of a determination as to my fitness to return to duty after an episode of exhaustion occurring in the operating room. The ethical principle that dictates that no physician shall betray the confidence of a patient goes back to Hippocrates, but in California there is a specific statute that states that violation of professional confidence is actionable unprofessional conduct. The statute as presented in the statute book is as follows:
“Violation of Professional Confidence
2263. The willful, unauthorized violation of professional confidence constitutes unprofessional conduct.”
A copy of the pertinent deposition transcript where Dr. McEnany’s attorney attempted to use the confidential medical record report appears as the first item in Exhibit 16. Also included in Exhibit 16 is the first page of the confidential psychiatric consultation by Dr. Nye that is the medical record at issue.
Perjury by Dr. Grey and subornation of perjury by TPMG
TPMG had to know that the most incriminating action on its part was its restrictions placed on McEnany’s operating privileges and the subsequent failure of TPMG to report those restrictions to the Medical Board in a required 805 report. Consequently TPMG had to continue to assert “that Dr. McEnany’s clinical privileges were not restricted.” When TPMG made this assertion to Luther Hospital in a letter authored by its Vice President and General Counsel Mr. Petrick, the wording was carefully chosen to avoid any charge of lying. Mr. Petrick stated that it was TPMG’s “belief that Dr. McEnany’s clinical privileges were not restricted.” The courts don’t accept “beliefs;” they want statements, and they need to have those statements in the form of formal affidavits or sworn declarations.
TPMG fulfilled this legal requirement by having the person responsible for administering the restrictions on Dr. McEnany in 1993 submit an affidavit to a Wisconsin court denying that restrictions were ever placed on Dr. McEnany’s practice of surgery. That person, of course was Dr. Douglas Grey, who in a sworn affidavit dated October 6, 2001 wrote on page 3 and 4 of that affidavit,
Although a methodology was developed for assisting Dr. McEnany in surgery during the peer review process, no practice restrictions were imposed upon him.
A copy of Dr. Grey’s sworn affidavit containing this false statement is presented in Exhibit 17.
It is my belief that Dr. Grey’s statement quoted above is an act of perjury and is subject to punishment under California Penal Code 118. TPMG may propose in its defense of a perjury charge that the findings listed in the Medical Board’s “Notification” document (See first item in Exhibit 9) that McEnany had imposed practice restrictions, were only findings, and not facts established by any legal process. Certainly the language of the “Settlement Agreement” (See fourth and final item in Exhibit 9) attempts to assert that they did nothing illegal in regards to McEnany’s departure from TPMG, and the Settlement Agreement certainly does not make any admission that the Medical Board’s finding of TPMG’s restriction of Dr. McEnany’s practice is factual.
However there is a crucial document generated by TPMG in its defense of the Medical Board’s finding that clearly establishes that TPMG made no assertion against the factual nature of the Medical Board’s finding that practice restrictions were imposed on Dr. McEnany. The crucial document is TPMG’s “Notice of Defense and Special Defense” submitted in response to the Medical Board’s “Notification.” Obviously if there was evidence that “no practice restrictions were imposed upon [Dr. McEnany],” then TPMG would have made, as one of its “special defenses,” an assertion that no practice restrictions were imposed upon Dr. McEnany and that the findings of the Medical Board’s “Notification” document were not factual.
Strikingly absent from the list of TPMG’s list of defenses is any assertion that the Medical Board’s finding that McEnany had practice restrictions is incorrect. This defense document lists three special defenses, which defend against the Medical Board’s Notification with assertions that, (1) there can be no adverse action from the Notification because of the disclosure of confidential information and information protected by California Evidence Code Section 1157, (2) that the statute of limitations prevents any action, and (3) that the Medical Board lacks jurisdiction to take any adverse action. If TPMG wished to challenge the factual basis for the Medical Board’s findings that Dr. McEnany had practice restrictions, then this was the place to challenge that finding. TPMG’s failure to challenge the finding that Dr. McEnany had practice restrictions imposed upon him, establishes the fact that TPMG accepts as factual, the Medical Board’s findings in regard to Dr. McEnany’s practice at the time of his departure. A copy of TPMG’s defense against the Notification is included as the third item in Exhibit 9.
Further supporting the assertion that TPMG accepted as factual Dr. McEnany’s practice restriction is the second statement in the “Agreement” listed at (D. 2.). The settlement agreement states at (D. 2.),
2, Respondents further understand that the chief of staff of a medical staff and the chief executive officer or administrator of any licensed health care facility are required to submit a section 805 report if, for a period of 30 days or more in any twelve month period, restrictions are imposed upon or a physician voluntarily accepts restrictions on his or her privileges which restrictions are for a medical disciplinary cause or reason.
(See Exhibit 9, “Settlement Agreement” at pg. 2:26 – 3:3)
If TPMG didn’t accept the factual nature of Dr. McEnany’s practice restrictions why is it stating that it “understands” that practice restrictions such as those “imposed on [Dr. McEnany]” require the submission of an 805 report if those practice restrictions are imposed for a period of 30 days or more?
Dr. Grey’s statement in his sworn affidavit of October 6, 2001 appears to fulfill the four basic requirements in establishing perjury. According to California law, the four elements required to establish perjury are:
(1) An oath (or its equivalent) required or authorized and taken before a competent tribunal or officer. (2) A false statement. (3) Intent to swear falsely. (4) materiality of statement.
Dr. Grey made his statement regarding Dr. McEnany not having “practice restrictions imposed upon him” in a signed and sworn affidavit (See Exhibit 17 at pg. 6). The statement is false (See Exhibit 9). Dr. Grey and TPMG knew that the statement is false (See Exhibit 9). Finally there is the element that establishing whether or not Dr. McEnany had practice restriction imposed upon him is indeed a material issue.
The process by which TPMG terminated my TPMG employment involved actions that I have claimed before the California courts constituted breaches of my employment contract. TPMG’s defense against my claims has involved persistent attempts to characterize me as an incompetent surgeon who is merely making allegations against TPMG to deflect attention from my own incompetence.
TPMG’s false statements regarding my treatment of a compressing hemorrhage around a patient’s heart.
A crucial component of TPMG’s campaign against my professional reputation has involved the settlement of a malpractice claim where they state that I failed to appropriately treat a patient with a compressing hemorrhage around his heart. TPMG’s claim made in its settlement of a malpractice claim was that the settlement had to be made because the patient was injured from my failure to recognize and appropriately treat a patient who had a compressing collection of blood around its heart that prevented the heart from functioning properly. Whenever a malpractice settlement is made for a large award (in this case the settlement was for over 3 million dollars), the insurer making the award is required to file an 801 report to the Medical Board that provides factual details as to the circumstances that mandated the malpractice settlement. Kaiser-Permanente self insures all TPMG physician and the settlement award in this case was paid by the “insurer,” Kaiser Foundation Health Plan, Inc.
The patient involved was a patient of Dr. Keith Flachsbart, and consequently it was Dr. Flachsbart’s responsibility as well as the responsibility of TPMG executive physicians involved in providing appropriate quality of care for TPMG patients (i.e., Drs. Strull, Blumberg and Madvig) to make accurate statements on this report form. These physicians asserted that I delayed treating the patient’s heart compression (called a “tamponade”) while he was in the intensive care unit, and that the treatment of the tamponade was inappropriately delayed until the patient reached the operating room. The statements that they provided on the 801 report at Section 24 was the following,
He failed to open the sternal incision in the cardiovascular ICU to relieve the tamponade emergently, despite the advice to do so from other staff. The tamponade ultimately was decompressed in the operating room but the patient suffered severe permanent brain damage.
These two statements alleging that I delayed the decompression of the patient’s tamponade until his arrival in the operating room are false as substantiated by the medical record and the sworn testimony of Dr. Flachsbart at the judicial hearing regarding my TPMG employment termination. It is beyond the scope of this chronology to provide the documentation that establishes that these statements are false, but the actual 801 report containing the two statements as well as a cover letter from the involved TPMG Assistant Physician-in-Chief Dr. William Strull is provided in Exhibit 18.
Making a false statement in an official form is a violation of the a fraud statute from California’s Medical Practice Act. The relevant statue is listed as Business and Professions Code Section 583, which relates to false statements in affidavits. Knowingly making a false statement on an 801 form also comprises perjury since above the signature block there is the statement, “I certify under penalty of perjury under the laws of the State of California that to the best of my knowledge the information provided within with report and any attachments is true and correct.”
Dr. Blumberg’s perjury and TPMG’s subornation of perjury in declarations submitted to the court in the course of defending against my litigation alleging breach of contract by TPMG.
A presentation of the issues in my ongoing litigation with TPMG is beyond the scope of this chronology, however I believe that it is important to at least mention what I feel is irrefutable perjury committed by Dr. Blumberg in TPMG’s defense against my claim. My breach of contract claim alleges that TPMG took an 805 reportable action against me by summarily suspending my clinical privileges on September 30, 1998 but failed to provide me with the hearing and procedural rights associated with that discipline as specified both by my employment contract and state law. Since there is no question that I was not provided with the required rights after TPMG’s September suspension of my clinical privileges, TPMG had Dr. Blumberg assert in two sworn declarations that his action on September was not a suspension of my clinical privileges. Dr. Blumberg submitted two declarations making this statement. I have included the second of these declarations since that declaration consists only of making the false statement regarding my clinical privileges. Dr. Blumberg’s statement stating that no action was taken against my clinical privileges during September 1998 is as follows,
“No action was taken against plaintiff’s clinical privileges at Kaiser San Francisco at any time between September 1, 1998 and November 27, 1998”
Immediately above Dr. Blumberg’s signature there is the following statement, “I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct to the best of my knowledge. Executed on September 4, 2003 at Berkeley, California.” A copy of this sworn declaration is presented in Exhibit 19. A presentation of the evidence substantiating that Dr. Blumberg’s statement is false is also beyond the scope of this chronology, but Dr. Blumberg’s own letter informing me of his actions taken on September 30, 1998 substantiate that he did suspend my clinical privileges by physically baring me from being at the hospital to practice medicine. The relevant statement in Dr. Blumberg’s letter, dated September 30, 1998 is, “from now until the completion of this assessment your presence at the work site is prohibited.” Dr. Blumberg’s letter of September 30, 1998 is presented as the second item in Exhibit 19.
The Medical Board of California’s accusation against me.
I first began to suspect that the Medical Board of California had switched sides from being the public’s advocate to being TPMG’s advocate when I was informed that it had issued an accusation against me alleging incompetence on my part in regard to several of my deaths and complications that TPMG had used to justify my TPMG employment termination. The accusation against me was filed in January 2001 at a time when I was reviewing the medical records of several of the Wisconsin patients that had died following operations performed by Dr. McEnany. The accusation made charges that almost parroted those made by TPMG during my termination hearing and I was initially puzzled as to why the Medical Board would now be advocating TPMG’s position.
The mystery was solved when I received a procedure booklet at the time of my accusation, entitled, “Manual of Disciplinary Guidelines and Model Disciplinary Orders, Medical Board of California Division of Medical Quality, 8th Edition, 1999.” The very first page of the booklet provided information regarding the “Members of the Division of Medical Quality (DMQ)” and listed both the President and Vice President of the Medical Board’s DMQ. The listed Vice President was Anabel Anderson Imbert, M.D., who also happened to be the Chair of the TPMG Board of Directors and was the individual that signed the letter finalizing my termination from TPMG. The cover and the first page of the Medical Board booklet is presented in Exhibit 20 as the initial item. Also presented in Exhibit 20 as the second item is a copy of Dr. Anderson Imbert’s letter dated September 29, 1999 finalizing my employment termination with TPMG.
Initially I felt quite confident that I could counter the charges of incompetence made in the accusation as I had several prominent cardiac surgeons who were more than willing to testify that the cases used to allege incompetence were nothing more than examples of the sort of deaths and complications that occur with all heart surgeons. The most significant of these prominent surgeons was Dr. Timothy Gardner who was both the Chief of heart surgery at the University of Pennsylvania and the president of North America’s most prestigious heart surgery professional society, the American Association for Thoracic Surgery. However in spite of having a “dream team” of defense witness I decided not to fight the accusation, but rather to settle it in a fashion that would allow me to keep my California license to practice medicine. The settlement effort was successful and I was allowed to keep my license with the provision that I serve a five-year period of probation.
Initial complaint to the Medical Board regarding violations of California law by TPMG and several of its physicians.
In my role as an expert witness for the Wisconsin plaintiff’s I received discovery documents associated with Dr. McEnany’s resignation from TPMG (e.g., Exhibit 2), documents associated with his Luther Hospital application for staff privileges (e.g.., Exhibits 3, 4, 5) and procedural documents from Dr. McEnany’s peer review investigation in Wisconsin (e.g., Exhibits 7, 10, 12, 13, 14, 15) All of these documents had been released by the Wisconsin courts as discovery without protective orders. By late spring of 2002 I realized that I had sufficient evidence to submit a complaint to the Medical Board of California alleging that several TPMG physicians (i.e., Philip Madvig, Bruce Blumberg, William Strull, Keith Flachsbart and Douglas Grey) had violated specific California statutes in a conspiracy to fraudulently certify that Dr. McEnany was a competent heart surgeon who was free of any restrictions on his clinical privileges and about whom no concerns regarding the quality of his patient care had been raised. In my view several of these documents also provided substantiation of statutory violations by TPMG and these TPMG physicians in the cover-up of their fraudulent certification of Dr. McEnany.
I decided to initiate my complaint using the Medical Board of California senior investigator Andrew Hegelein. Mr. Hegelein had conducted the investigation into Dr. Blumberg’s failure to file an 805 report in a timely fashion following Dr. Blumberg’s suspension of my clinical privileges on September 30, 1998. I submitted my formal complaint to the Medical Board and provided Mr. Hegelein with a cover letter. Using the documentation contained in the exhibits from this chronology as well as additional documentation, I presented my allegations of violations of California law in a complaint brief supported by 15 exhibits. The complaint alleged that TPMG and several of its physicians had violated specific statutes of California’s Medical Practice Act as well as violated the California perjury statutes. A copy of my letter to Mr. Hegelein, dated August 6, 2002 is presented as the first item in Exhibit 21.
For a period of over four months my formal complaint was unacknowledged. This failure of the Medical Board to acknowledge the submission of my complaint struck me as unusual, since in all of my previous experience submitting complaints to the Medical Board I had received an almost immediate acknowledgement. I was even more surprised when I read Mr. Hegelein’s belated response to my complaint in a letter dated December 23, 2002. Mr. Hegelein took the approach that I was merely submitting addition material related to the Medical Board’s 1997 action against Dr. Madvig and TPMG, and in what I would call a classic “stonewalling” action he stated that “no further action will be taken regarding the information you provided.” A copy of Mr. Hegelein’s letter of December 23, 2002 is presented as the second item in Exhibit 21.
Submission of a second formal complaint to the Central Complaint Unit of the Medical Board of California.
Frustrated by the Medical Board’s apparent stonewalling in protecting TPMG from being accountable for it violations of law, I decided to by-pass Mr. Hegelein and send a second formal complaint directly to the Central Complaint unit of the Medical Board. In this case my complaint, submitted on January 24, 2003, was handled in a routine fashion and I received an immediate response from the Medical Board of California. Actually I received five immediate responses in the form of five computer generated letters that dealt with five of the seven specific physicians that I had alleged were guilty of the violation of California law. A copy of my letter accompanying my complaint against the TPMG physicians Caulfield, Madvig, Blumberg, Strull, Flachsbart, Grey and McEnany is provided as the first item in Exhibit 22. A copy of one of the five letters of response that I received, the letter regarding Dr. Grey, is provided as the second item in Exhibit 22. All five letters had the same date and the same identical text. The statement that is significant in all of these letters is the statement that the Medical Board will take on the obligation of “reviewing the information [I] have provided and will be conducting a thorough analysis.”
This was now a response from the Medical Board that was quite similar to that I had received with the submission of my original whistleblower complaint on October 31, 1996. That “thorough analysis” comprised an investigation that took almost an entire year to complete, but at the end of that investigation the Medical Board took appropriate action with its Notification against Dr. Madvig (See Exhibit 9) and its Accusation against Dr. McEnany (See Exhibit 11). My initial encouragement that we now were finally on our way with a proper investigation into TPMG extensive violations of law in regarding the false certification of Dr. McEnany and the cover-up associated with that fraud was quickly dashed when I received a letter from the Medical Board, dated February 19, stating that it had “concluded its review of [my] complaint,” and that the “cases have been closed.”
A copy of this letter is provided as the final item in Exhibit 22.
Medical Board’s tolling of my probation order.
The settlement agreement by which I settled my accusation and which allowed me to retain my license and practice medicine contained a provision that if I left California, or submitted a declaration that I was no longer practicing medicine my probation period would not run but would be tolled until I returned to California or stated that I was again practicing medicine. This condition (listed as condition #21) stated that the practice of medicine for the purpose of instituting a tolling of probation is defined by Business and Professions Code Sections 2251 and 2252. The legislature provided a very inclusive definition of the practice of medicine in these two statutes so that it could prevent the unlicensed practice of medicine regardless of the manner in which an individual engaged in treating health problems. The crucial aspect of this statute that broadly defines the practice of medicine states that the practice of medicine is comprised of using, “any … methods in the treatment of diseases, injuries, and other physical and mental conditions.” With this definition a licensed physician (such as myself) is engaged in the practice if he/she is treating any individual for a condition using any means. Although I did not resume a formal practice of medicine with employment at a hospital or clinic, I did continue to practice medicine by providing medical advice and an occasional drug prescription to individuals on a voluntary basis.
Shortly after receiving the February 19, 2003 stonewalling letter from Ms. Kirchmeyer of the Medical Board’s Central Complaint Unit (See Exhibit 22) I received a letter from Ms. Catarina Le who was functioning as my probation officer in the Probation Unit of the Medical Board located in San Jose, California. Ms. Le informed me in a letter dated March 11, 2003 that the Medical Board had not only ruled that my probation is now being tolled, it had cancelled the period of probation that had already run and had been paid for since November 2, 2001, the effective date of the settlement of my accusation. A copy of Ms. Le letter is provided in Exhibit 23.
Unsuccessful efforts to have the Medical Board correct it improper tolling of my probation and to correct its incompetent investigation regarding my complaint alleging violations of the law by TPMG and several of its physicians.
I initially had reason to believe that the Medical Board was responding to my arguments that its tolling of my probation was improper when I received a request for payment of probation monitoring fees that I had not been paying because these probation monitoring fees are not required when a probation is tolled. A copy of the October 23, 2003 letter requesting payment of costs associated with probation monitoring is also provided in Exhibit 23. I provided the Medical Board with the requested payment in a check dated January 12, 2004, which the Medical Board cashed on January 23, 2004. Since I now had reason to believe that the Medical Board had corrected the improper tolling of my probation I continued with my quarterly payments for the costs of my probation monitoring. I sent the Medical Board a quarterly payment of $718.50 to cover the probation monitoring costs for the first three months of 2004. The check was dated April 10, 2004, and the Medical Board cashed this check on April 23, 2004.
My belief that the improper tolling had been corrected was countered when I received a refund check from the Medical Board in the amount of $2,874 and dated May 26, 2004. The Medical Board now asserted that its request for payment and the cashing of my two checks covering a year of probation costs had been a mistake and that the canceling of my entire probation period was still in effect.
I decided that this was the proper time for me to formally complain to the Medical Board that it must correct both its improper tolling of probation and its inept and incompetent investigation regarding my allegations of the violation of law by TPMG and several of its physicians. Therefore, I provided the Medical Board with a binder of documents that supported my allegations that the Medical Board was itself acting improperly both with its improper tolling of my probation, and its failure to conduct a competent investigation regarding a complaint that it had agreed to investigate with a “thorough analysis.” A copy of my letter, dated June 30, 2004, making this request is provided as the first item in Exhibit 24. The Medical Board’s response to my June 30, 2004 letter came in the form of a letter from the Supervising Deputy Attorney General, Gail Heppel. Ms. Heppel wrote in a letter dated July 9, 2004 that the Medical Board was going to continue with the tolling of my probation until I established a practice that met their definition of the practice of medicine, a definition that was far more stringent than that provided in Business and Professions Code Sections 2251 and 2252.
In regard to the far more significant issue of the Medical Board correcting its incompetent investigation of my January 24, 2003 complaint (See Exhibit 22) Ms. Heppel’s letter was entirely silent. A copy of Ms. Heppel’s letter is provided as the second item in Exhibit 24.
Failure of my current efforts to compel the Medical Board to discontinue its efforts to stonewall my complaints alleging violation of California law by TPMG and seven of its staff physicians.
Undeterred by yet another stonewalling action by the Medical Board and an apparent ally in the Office of the Attorney General I decided to provide the Medical Board with another letter responding to statements made (and not made) in Ms. Heppel’s letter. This letter, dated September 9, 2004, was more than a cover letter as it ran to 12 pages and attempted to summarize the issues including the specific violations of law by TPMG and its physicians that I had detailed in previous complaints. A copy of this letter is provided as the initial item in Exhibit 25.
The response to this letter was provided by the Medical Board’s Supervising Investigator Shane P. Wright in a letter dated September 30, 2004. Mr. Wright’s letter did not deal with any of the issues raised in my September 9, 2004 letter. Mr. Wright merely used his letter as a conduit for him to again send me the refund check issued by the Medical Board on May 26, 2004. A copy of Mr. Wright’s letter to me is provided as the second item in Exhibit 25.
I did receive a response from the Medical Board regarding my complaints alleging violation of California law by TPMG physicians in a letter dated October 13, 2004. This letter, authored by the Deputy Chief for Enforcement, A. Renee Threadgill, continued the Medical Board’s stonewalling campaign by asserting that the investigation conducted regarding my multiple complaints had been a “comprehensive and unbiased investigation,” and that the Medical Board’s decision of having closed the investigation as of February 19, 2003 was justified. Ms. Threadgill did state that if I had “further questions,” I could contact her at the “Office of Investigative Services for assistance.”
I obviously did have many questions as to why the Medical Board investigation carried out over a period of less than ten days (i.e., from 2/10/03 to 2/19/03) had failed to find that my extensive documentation did not substantiate a single violation of California law by TPMG and the individual physicians named in my complaints. Consequently I responded to Ms. Threadgill’s offer to answer questions with a letter and questionnaire dated 10/31/04 that could be responded to with “yes” or “no” answers. A copy of Ms. Threadgill’s 10/13/04 letter declaring that the concluded investigation of my complaints was “comprehensive and unbiased” along with my 10/31/04 letter responding to her offer of assistance with my “further questions” are provided in Exhibit 25.
This apparent stonewalling by the Medical Board parallels the current criticism being voiced regarding the failure of the F.D.A. to adequately protect the public against the harmful effects of high profit drugs such as the arthritis pain-relieving drug Vioxx. While the story regarding the possible failures of this government agency to protect the public rather than the interests of the drug corporations is incomplete in regard to Vioxx and other high profit drugs, the apparent failure of the Medical Board to deal with my allegations of violations of the Medical Practice Act by TPMG seems to support the concept that some government agencies are more concerned with protecting the corporations they are charged with regulating than with protecting an unknowing public.
The evidence supporting my allegations of stonewalling by the Medical Board seems especially ironic in light of my recently renewed physician and surgeon certificate. Prominently displayed on my certificate renewal is the following statement regarding the Mission of the Medical Board of California, “The mission of the Medical Board of California is to protect consumers through proper licensing of physicians and certain affiliated healing art professions, and through the vigorous objective enforcement of the Medical Practice Act.” (Emphasis added) A copy of my renewed certificate is enclosed as a last item at the end of Exhibit 25.
XII. SUMMARY AND CONCLUSIONS
I have attempted to write a chronological narrative that provides a fabric that holds together the documents contained in the 25 exhibits associated with this narrative. I have tried to function here as a tour guide to the documents and have refrained from making any statements that can’t be fully supported by documentation. On occasion I have inserted my personal view as to why I believe the documentation was generated in the way it was.
I believe that the documentation is irrefutable in establishing that the individuals, corporations, and government agencies named in this chronological narrative are guilty of a conspiracy which resulted in the unnecessary loss of human life. Furthermore I believe that these parties have been able to carry out this malfeasance in a manner that has prevented them from any accountability as prescribed by currently written California statutes. I believe that TPMG has been able to continue its cover-up conspiracy because of the persistent and current stonewalling campaign carried out by the Medical Board of California.
This is not a “there ought to be a law situation” where parties have committed malfeasance, but where there was no specific violation of law in that malfeasance. As demonstrated by the documents contained in the twenty-five exhibits accompanying this chronology, the California legislature has provided laws to protect the public from physician dishonesty, but in this case the involved parties simply violated those laws, and then used the influence and power of the Kaiser-Permanente medical corporation in an attempt to make sure that they were not held accountable for violating those laws.
Of perhaps even greater significance than the malfeasance of TPMG in this affair, is the apparent collusion of the Medical Board of California in assisting TPMG with its cover-up if its past and continuing violations of California law. In my view this governmental agency has violated the public trust by failing to conduct a competent investigation regarding the well documented violations of California law that are contained in my multiple complaints to this agency. There is little doubt in my mind that many of the violations of California law that I have alleged have resulted in the loss of innocent lives. I believe that the irresponsible actions of the Medical Board in stonewalling my complaints makes them an accessory to the loss of life that ultimately resulted from TPMG’s false certification of Dr. M.T. McEnany as a competent cardiovascular surgeon who TPMG alleged did not have disciplinary restrictions placed on his practice, and who was not the subject of any concern regarding his competence and safety.
I believe that the evidence presented with this chronology clearly suggests, that in spite of the Medical Board’s mission statement that it is protecting consumers “through the vigorous objective enforcement of the Medical Practice Act,” the Medical Board is currently protecting TPMG with an effort to avoid any “objective enforcement of the Medical Practice Act.” At least this appears to be the case in this situation where the violations of the Medical Practice Act and other California statutes have been committed by the Kaiser-Permanente medical corporation.
My purpose now in assembling these documents and providing them to responsible journalists is to counter these powerful corporate forces and bring the circumstances of this debacle before the general public. Hopefully, with the revelation of the malfeasance of TPMG and the government agency charged with regulating healthcare in the State of California, appropriate action will be taken against these entities, and the public can once again have faith in the safety of its healthcare and in the government agencies that are charged with insuring that safety.
William Y. Moores, M.D., 6/15/05
1. Exhibit 1: Memorandum: Grey to Burgess, 1/7/93; Memorandum: Grey to Burgess, 3/9/93; Summary of Format for Assisting Dr. McEnany during Practice Review, 5/3/93.
2. Exhibit 2: Letter: Freeman to Petrick, 6/18/93; Letter: Petrick to Freeman, 6/25/93.
3. Exhibit 3: McEnany’s Application for Appointment to the Medical Staff of Luther Hospital, 7/3/93; McEnany’s Privilege Delineation Form, 7/29/93.
4. Exhibit 4: Physician references for Dr. McEnany generated by Dr. Susens, 5/7/93, Dr. Richter, 5/18/93, and Dr. Hill, 6/3/93.
5. Exhibit 5: Letter: DeCesare to Chairman, Department of Surgery, 7/28/93; Letter: Grey to DeCesare, 8/31/93; Letter: DeCesare to Administration, Kaiser Hospital, 7/28/93; Letter: Madvig to DeCesare, 9/24/93; Letter: DeCesare to Alvarez, 7/28/93; Letter: Madvig to DeCesare, 11/18/93.
6. Exhibit 6: Newspaper article from Milwaukee Journal-Sentinel, 4/21/96.
7. Exhibit 7: Letter: Moore to Palmer, 7/15/96.
8. Exhibit 8: Letter: Moores to Medical Board of California, 10/31/96.
9. Exhibit 9: Notification of Violation and Imposition of Civil Penalty against Frank D. Alvarez and Philip R. Madvig, 9/5/97 (with 4 cited documents); Letter: Moores to Schaff, 11/20/97; Notice of Defense and Special Defense in the Matter of the MBC vs. Alvarez and Madvig, 10/31/97; Settlement Agreement in the Matter of the MBC vs. Alvarez and Madvig, 11/24/97.
10. Exhibit 10: Letter: Reilly to Austin, 4/16/98.
11. Exhibit 11: Accusation against M. T. McEnany, 5/19/98.
12. Exhibit 12: Letter: Freeman to Ball, 5/13/97.
13. Exhibit 13: Letter: Freeman to Petrick, 1/28/98.
14. Exhibit 14: Letter: Petrick to Rupp, 2/23/98.
15. Exhibit 15: Stipulation for the surrender of Dr. McEnany’s California license, 6/11/98; Stipulation for the surrender of Dr. McEnany’s Wisconsin license, 9/24/98.
16. Exhibit 16: Excerpt from Moores deposition, 7/10/01; Page 1 of confidential psychiatric consultation on Moores, 4/30/97.
17. Exhibit 17: Affidavit of Douglas Grey, 10/6/01.
18. Exhibit 18: Letter: Strull to Moores, 12/26/01; 801 report to the MBC regarding patient Cervantes, 10/31/00.
19. Exhibit 19: Supplemental Declaration of Bruce Blumberg, 9/4/03; Letter: Blumberg to Moores, 9/30/98.
20. Exhibit 20: Cover and page 1 of MBC disciplinary manual, 1999; Letter: Anderson Imbert to Green and Blumberg, 9/29/99.
21: Exhibit 21: Letter; Moores to Hegelein, 8/6/02; Letter: Hegelein to Moores, 12/23/02.
22. Exhibit 22: Letter: Moores to MBC Central Complaint Unit, 1/24/03; Letter: MBC Central Complaint Unit to Moores, 1/30/03; Letter: Kirchmeyer to Moores, 2/19/03.
23. Exhibit 23: Letter: Le to Moores, 3/11/03; Letter: Sanchez to Moores, 10/23/03.
24. Exhibit 24: Letter: Moores to Garcia, 6/30/04; Letter: Heppell to Moores, 7/9/04.
25 Exhibit 25: Letter: Moores to Wright, 9/9/04; Letter: Wright to Moores, 9/30/04; Letter: Threadgill to Moores, 10/13/04; Letter: Moores to Threadgill, 10/31/04.