selfincrimination.kaiserpapers.info
Link for Translation of this Kaiser Papers page from Google Translation Service
On
Friday, May 25, 2007, Dave Thornton of the California Medical Board was
deposed by the Circuit Court of the State of Wisconsin in and for Eau
Claire County. This was necessary for a thorough explanation to
the State of Wisconsin as to how and why Dr. Michael T. (Terry) McEnany, chief of TPMG's Cardiovascular Surgery Department
was allowed to continue practicing medicine, was enabled by Kaiser
Permanente to falsify employment documents to secure an out of state
job in Wisconsin, again overseeing a Cardiovascular Surgery Department , and other
serious endangering to patient matters. This document establishes
the history of, validity of following documents and the Kaiser
Permanente justification of self protection for breaking the law and
consequently endangering numerous patient lives.
A true copy of this set of documents can be viewed at:
http://selfincrimination.kaiserpapers.info/pdfs/thornton_20070717085607.pdf
A true copy of this set of documents can be viewed at:
http://selfincrimination.kaiserpapers.info/pdfs/thornton_20070717085607.pdf
IN THE CIRCUIT COURT OF THE STATE OF WISCONSIN IN AND FOR EAU CLAIRE COUNTY
E. VIRGINIA ROBINSON,
INDIVIDUALLY AND AS SPECIAL
ADMINISTRATOR FOR THE ESTATE
OF MILES ROBINSON,
Plaintiffs,
PHYSICIANS INSURANCE COMPANY
OF WISCONSIN, INC., MIDELFORT CLINIC, LTD., LUTHER. HOSPITAL, AND
M. TERRY MCENANY, M. D., AND
WISCONSIN PATIENTS COMPENSATION FUND,
Defendants
Deposition of
DAVE THORNTON
Friday, May 25, 2007
Reported by: JULIE STINNEIT, CSR 11578
E. VIRGINIA ROBINSON,
INDIVIDUALLY AND AS SPECIAL
ADMINISTRATOR FOR THE ESTATE
OF MILES ROBINSON,
Plaintiffs,
vs. Case Number: 99CV657
Case Code: 30104/30105
Case Code: 30104/30105
PHYSICIANS INSURANCE COMPANY
OF WISCONSIN, INC., MIDELFORT CLINIC, LTD., LUTHER. HOSPITAL, AND
M. TERRY MCENANY, M. D., AND
WISCONSIN PATIENTS COMPENSATION FUND,
Defendants
Deposition of
DAVE THORNTON
Friday, May 25, 2007
Reported by: JULIE STINNEIT, CSR 11578
APPEARANCES
FOR THE PLAINTIFFS:
MICHAEL J. HAPPE Attorney At Law Appearing by Telephone
Ryberg & Happe, SC
200 Riverfront Terrace
Suite 100
P.O. Box 1999
Eau Claire, Wisconsin 54702-1999
(715) 833-9699
FOR THE DEFENDANTS:
DAVID J. COLWIN
Attorney At Law
Sager, Colwin, Samuelsen & Associates, S.C.
201 South Marr Street
Fond Du Lac, Wisconsin 54935
(920) 921-5770
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INDEX OF EXAMINATION
PAGE
BY MR. HAPPE ................................................................................ 4
BY MR. COLWINN .........................................................................29
FURTHER EXAMINATION
BY MR. HAPPE ......................................................................... 59, 70
BY MR. COLWIN............................................................................ 68
EXHIBITS
PLAINTIFFS' DESCRIPTION PAGE
1 Settlement Agreement....................................................................4
2 Decision .................................................................................... 4
3 Confidential Memorandum ........................................................... 4
4 5/3/93 Correspondence ................................................................4
5 6/18/93 Correspondence.............................................................. 4
6 6/25/93 Correspondence.............................................................. 4
7 Application for Appointment to the Medical Staff............................4
---o0o---
BE IT REMEMBERED that on Friday, the 25th day of May, 2007, at the hour of 9:14 a.m. of said day, at the MEDICAL BOARD OF CALIFORNIA, 1426 Howe Avenue, Suite 92, Sacramento, California, before me, Julie Stinnett, a Certified Shorthand Reporter, personally appeared:
DAVE THORNTON,
called as a witness herein, having been administered an oath in accordance with C.C.P. Section 2094, was examined and testified as follows:
---o0o--
(Exhibits 1-7 were marked for identification.)
EXAMINATION BY MR. HAPPE
Q. Would You please state your full name.
A. David Thornton, T-h-o-r-n-t-o-n.
Q. Mr. Thornton, what is your professional address?
A. It's 1434 Howe Avenue, H-o-w-e, Sacramento, California 95825.
Q. Have you ever given a deposition before?
A. Yes.
Q. Just to familiarize you with some of the ground rules, if if you don't hear me or understand my question, please let me know.
A. Okay.
Q. If you don't understand a question, just please let me know that. If you have to take a break, please let us know.
You have been sworn to tell the truth. This deposition would be really the same as if you were testifying in a court of law.
Do you understand that?
A. Understood. Yes.
Q. What is your occupation, sir?
A. I'm the Executive Director of the Medical Board of California.
Q. And what does the Executive Director of the Medical Board of California do? What are your duties?
A. Well, I am appointed by the board members. There are 21 board members who are appointed by the governor.
Nineteen of them are appointed by the governor, two by the legislature here in California. They then, in turn,
appoint an executive director, and I act as the person delegated with their authority to run the day-to-day operations of the Medical Board, the licensing operations the enforcement operations and our various programs. So I have the delegated authority of the Board to perform those duties.
Q. The Medical Board of California, then, is an entity of the state of California?
A. It is. It's under the umbrella of the Department of Consumer Affairs, and it is the state agency that licenses physicians and surgeons and disciplines those license.
Q. My next question was going to be what is the purpose of the medical board, and you have just explained that purpose?
A. I did .
Q. Okay. How long have you been the Executive Director for the Medical Board?
A. Approximately three years.
Q. And how long have you been employed by the Board?
A. Approximately 32 years.
Q.- Are you-familiar with an investigation by the Medical Board - when I Say ''Medical Board," I'm referring to the Medical Board of California throughout. So if you would please take that in consideration.
Are you familiar with the Medical Board's investigation of Kaiser Permanente Hospital in San Francisco and a couple of its administrators, Dr. Madvig and Alvarez?
A. Yes, I am.
Q. I'd like you to take a look at Exhibit 1, please.
A. Okay.
Q. Could you tell us what Exhibit 1 is.
A. Exhibit 1 is a Settlement Agreement of the imposition of violation (sic) and civil penalty against Mr. Alvarez, Frank Alvarez, and Dr. Madvig, Philip R. Madvig, both employed by Kaiser Permanente, San Francisco.
Q. And Exhibit 1 attaches and incorporates into it two exhibits, it appears, Exhibit A and Exhibit B; is that correct?
A. That's correct.
Q. And what is Exhibit A attached to Exhibit 1?
A. Exhibit A is the Notification of Violation and Imposition of Civil Penalty that was served on Mr. Alvarez and Dr. Madvig.
Q. And what is Exhibit B attached to Exhibit 1?
A. Exhibit B is the Notice of Defense and Special Defense.
Q. It's my understanding that Exhibit 1 is a public document; is that true?
A. That's correct.
Q. And Exhibit 1 is a certified public document certified by the records custodian of the Medical Board of California?
A. Correct.
Q. And does that certified public document that we have identified as Exhibit 1 include Exhibits A and B? In other words, when we say that Exhibit 1 is a public document, is that also true of the exhibits that are attached to Exhibit 1?
A. Yes.
Q. At this time, I'd like you to take a look at Exhibit 2, and I would ask you to identify that document, please.
A. This is the Board's Decision -- the Medical Board's Decision in the natter of the accusations filed against Michael T. Mcenany, M-c-e-n-a-n-y, M.D., Case Number 03-1997-71927. The decision was ordered July 7th, 1998, with an effective date of July 14th, 1998,
Q. Attached to Exhibit 2 is Exhibit A; is that correct?
A. Yes.
Q. Could you identify Exhibit A, please.
A. Exhibit A is a copy of the accusation filed against Dr. Mcenany. and an accusations is a -- an administrative charging document charging him with various violations in the Medical Practice Act.
Q. Is Exhibit 2 a public record in the State of California?
A. Yes.
Q. And Exhibit 2 also appears to be a certified public record; is that correct?
A. That's correct.
Q. And when and by whan was Exhibit 2 certified?
A. It was certified by Loretta Arroyo, A-r-r-o-y-o, records custodian. And it was certified on May 24th, 2007,
Q. Mr. Thornton, I'd like to go into a little more detail with respect to Exhibit 1.
A. Okay.
Q. When I say Exhibit 1, again, I'm referring to Exhibit 1 that incudes as one document the exhibits that are attached thereto.
Do you understand that?
A. Yes.
Q. One more thing before I get to Exhibit 1. I'm sorry. Are you familiar with the investigation conducted by the Medical Board of California with respect to the accusations against Dr. Mcenany?
MR. COLWIN: Object to the form of the question.
Go ahead.
THE: WITNESS: Yes, I am familiar with it.
Q. (BY MR. HAPPE) In the Exhibit 2 it refers to Michael T. Mcenany. Do you know, has that individual also been referred to as Terry Mcenany?
A. I believe so, yes.
Q. And Dr. Mcenany was a cardiovascular or cardiothoracic surgeon in San Francisco between -- at least between the periods of 1993 --well, at some point in 1993?
A. Yes.
Q. With respect to Exhibit 1, what is your understanding of the reason for the investigation by the Medical Board of Mr. Alvarez and
Dr.Madvig?
MR. COLWN: Cbject to the form of the question. Also, foundation.
Go ahead.
THE WI'INESS: We had received information -- "we" meaning the Medical Board, had received informtion that restrictions had been placed on Dr. Mcenany's license by Kaiser Hospital in San Francisco, andI that those restrictions were not reported to the Medical Board as required by Section 805 of the Califomia Business and Professions Code.
Q. (BY MR. HAPPE) - Does the Medical Board of California then do a thorough investigation?
MR. COLWIN: Oject to the form of the question.
THE WITNESS: Yes.
Q. (BY MR. HAPPE) And I'd like to refer you to Exhibit A, page 2.
A. Exhibit 1 or A?
Q. The determination (sic) of violation.
MR. COLWIN: Are you referring, Michael, to Exhibit 1A?
MR. HAPPE: Yes.
MR. COLWIN: Okay.
Q. (BY MR. HAPPE) Are you with me there, Mr. Thornton?
A. Yes.
Q. Okay. Are the detennination of violations that are identified in Exhibit I, Exhibit A attached thereto, in paragraphs 4 through 16 the findings made by the Medical Board of California as result of their investigation?
MR. COLWIN: Objection as to form with regard to the word "findings."
Go ahead.
THE WI'INESS: Yes. The determination of violations was based on what we determined were violations as a result of our investigation.
Q. (BY MR. HAPPE) Those were findings made by the Medical Board of California that Dr. Madvig and Mr. Alvarez were entitled to admit or deny and raise a defense?
A. Well, they were in the form of a notice of violation, and, as such, they are allowed to raise a defense to defend themselves against those accusations.
Q. Those determination of violations were, in essence, findings that the Medical Board of California made as a result of the investigation?
MR. COLWIN: Objection to form.
Go ahead.
THE WITNESS: Yes .
Q. (BY MR. HAPPE) What were -- I'd like you to just go through, if you would, please, the specific findings that were made by the Medical Board as a result of its investigation.
MR. COLWIN: Objection to the form.
THE WITNESS: Okay. What we found was that sometime in late 1992, early 1993, that restrictions were placed on Dr. Mcenany's license - not -- strike that. Not on his license but on his ability to practice medicine at Kaiser in San Francisco, and the restrictions were in the form of the fact that he was not allowed to perform any surgeries unless he had an assistant surgeon there with him.
Q. (BY MR. HAPPE) Why is that a restriction on Dr. Mcenany's surgical privileges at Kaiser?
MR. COLWIN: Objection to form and foundation.
Go ahead.
THE WITNESS: Well, because of the way Section 805 reads, hospitals are required to report any restriction of staff privileges for a medical disciplinary cause of reason if those restrictions last more than 30 days. And by requiring that Dr. Mcenany have an assistant surgeon before he can perform any surgeries, the Medical Board deemed that as a restriction on his ability to practice Medicine at
that facility.
Q. (BY MR. HAPPE) Did the Medical Board determine that the restriction on Dr. Mcenany's privileges was necessitated as a result of concerns regarding his competency and concerns for patient safety?
MR. COLWIN; Objection to form and foundation.
THE WITNESS; I -- that was part of the findings of our investigation, yes.
Q. (BY MR. HAPPE) You mentioned Rule (sic) 805. Could you maybe step back for a moment and explain to us what Rule 805 is and how it applies to Kaiser and Dr. Mcenany?
A. Well, it's not a rule. It's a section of law. It's Section 805 of the California Business and Professions Code. And that section, as it was - the form it was in at that time in 1993, required the Chief of Staff and the Administrator of a hospital to report restrictions or the termination of staff privileges to the Medical Board within certain specified time periods. And these restrictions that were placed would be the result of a medical disciplinary cause or reason. In other words, they were placed on there because there was some concern about patient safety.
And let me give you an exanple of the type of restriction that probably wouldn't have to be reported to the Board, and that is if the physician failed to complete medical records at the hospital that didn't impact patient safety, that would not be a medical disciplinary cause of reason, even though his privileges were restricted.
Q. Okay. Dr. Mcenany has disputed that there was a restriction on his privileges, and he has classified it as just some temporary assistance for another doctor to assist him during a practice review or peer review that was taking place at Kaiser, and that it was not a restriction that needed to be reported.
Number one, do you and the Medical Board dispute that and why?
MR. COLWIN: Objection. Form, foundation.
Go ahead.
THE Wl'INESS: We do dispute that, and the reason is -- you have to look at the circumstance. Could Dr. Mcenany have practiced at the hospital without an assistant? And if the answer is yes, then it wouldn't be a reportable incident. But since our investigation found that he was required to have this assistant surgeon in order to practice at the facility, then that was a reportable incident.
Q. (BY MR.. HAPPE) And was the restriction that was found by the Medical Board confirmed by internal Kaiser Hospital documents?
MR. COLWIN: Objection to --
Q. (BY MR. HAPPE) Specifically, I'd like you to refer to Exhibits 3 and 4.
MR. COLWIN: Same objections.
THE WITNESS: Those two exhibits did help confirm our belief that there was a restriction in place that should have been reported.
Q. (BY MR. HAPPE) I'd like you to take a look at paragraph 7 of Notification of Violation.
Was there also a report by Dr. Bruce Blumberg that formed a basis for the Medical Board's conclusion that there was a risk to patient safety as a result of Dr. Mcenany's surgical performance in San Francisco in 1993?
MR. COLWIN: Objection. Hearsay and foundation.
Go ahead.
THE WITNESS: Well, as Dr. Blumberg found, there were some concerns for patient safety, and that there were two recent, unexpected patient deaths, a higher than expected mortality rate for Dr. -- he refers to him as, I think, "M" in this particular document -- Dr. Mcenany's patients, a higher incident of surgical complication, rough handling of tissues, a high incident of torn vessels, air locks (sic) and grafts that require lengthening or shortening, operating with inadequate assistance, scheduling cases in a manner that exceeds the threshold of his endurance and an episodic history of dysfunctional relationships with colleagues, both within and outside his own department.
Does that answer your question?
Q. (BY MR. HAPPE) Yes.
Did Dr. Blumberg find anything else with respect to Dr. Mcenany's surgical performance and his behavior at Kaiser?
MR. COLWIN: Objection as to the word -- object to the form of the question, specifically with regard to the word "find."
Go ahead.
THE WlTNESS: I think he found that he had characterized it as a forceful personality; one who was unwilling to accept or seek the advice of his colleagues, and also that his behavior on at least two occasions jeopardized patient care.
Q. (BY MR. HAPPE) Were there also concerns raised by members of the cardiovascular staff and physicians from the anesthesiology department concerning Dr. Mcenany --
MR. COLWIN: Cbject - I'm sorry.
[BY MR. HAPPE) -- in late 1992?
MR. COLWIN: Objection. Hearsay. Foundation and form.
Q. (BY MR. HAPPE) I'm referring to paragraph 6.
A. You are referring to which paragraph? I'm sorry.
MR. COLWIN: Six.
Q. (BY MR. HAPPE) Paragraph 6.
A. Six. Okay. Yes.
That was one of our findings.
Q. At what point did the Medical Board of California find that the -- through its investigation that the restriction on Dr. Mcenany's privileges was imposed?
MR. COLWIN: Same objections.
Go ahead.
THE WITNESS: Well, I don't know that we identified an exact date, but we did identify they were clearly in place early March of 1993.
Q. (BY MR. HAPPE) I take it, then, the fact that Dr. Mcenany was not allowed to perform any surgery without another senior staff surgeon acting as his first assistant was something that was extraordinary?
MR. COLWIN: Object to the form of the question, and assumes facts not in evidence.
Go ahead.
Q. (BY MR. HAPPE) I mean extraordinary in the sense it required to be reported and was out of the ordinary.
MR. COLWIN: Same objections.
THE WITNESS: Well, I dont's know if I would classify it as extraordinary, but it was a restriction on his privileges at that facility
which required reporting to the Medical Board.
Q. (BY MR. HAPPE) Was there any doubt by the Medical Board that, in fact, Dr. Mcenany's surgical privileges were restricted at Kaiser Hospital in 1993?
MR. COLWIN: Objection as to form. Foundation.
Hearsay.
Go ahead.
THE WITNESS: There was no doubt.
Q. (BY MR. HAPPE) As I understand it under Rule 805 of the Business and Professioos Code, there are two aspects to that: One is it's required to report a restriction if it's been imposed for more than 30 days during a 12-month period for a medical disciplinary reason; and, two, an 805 report is required to be completed if a physician resigns before the completion of or during an investigation
indicating a medical disciplinary cause or reason; is that correct?
MR.. COLWIN: Objection. Compound.
Go ahead,
THE WITNESS: You are correct on both counts. Section 805 is pretty explicit in that if a physician resigns while there is an investigation or upon the notification of an investigation, that's a reportable incident.
The reason for that is that individual hospitals have the ability to restrict or remove a physician from their staff, but that doesn't protect thepublic. That physician can then move to another hospital, get staff privileges and continue to practice and present a harm to the public.
So the Medical Board is key to getting that inforrmation so that we can do an investigation and place restrictions or revoke the physician's license, if necessary, and that's the reason 805 -- Section 805 is in existence.
Q. (BY MR. HAPPE) Were the restrictions on Dr. Mcenany's privileges ever terminated before he resigned his employment at Kaiser?
MR. COLWIN: Objection to form and foundation. Go ahead.
THE WITNESS: Not that I'm aware of.
Q. (BY MR. HAPPE) Okay. In its investigation, did the Medical Board of California find any evidence that the restriction had been lifted before Dr. Mcenany resigned?
A. No.
Q. And you mentioned earlier that part of the violation of Kaiser was the failure to report the restriction. Was there also a violation of 805 as a result of failing to file notice of the investigation of Dr. Mcenany before he resigned his employment and left California?
MR. COLWIN: Objection. Form and foundation.
Go ahead.
THE WITNESS: I'm not sure I understand your question. They are not - the hospital is not required to report an investigation to us. They are only required to report if there are restrictions placed while that investigation is in progress. They are required to report if the physician resigns while an investigation is in progress.
Q. (BY MR. HAPPE) Okay. I guess that's what I was referring to.
Was there a violation of the second aspect there that you just mentioned?
MR. COLWIN: Objection. Foundation.
Go ahead.
THE WITNESS: I think you are asking me if there was really two reportable incidents, and--
MR. HAPPE: Yes.
THE WITNESS: -- the answer would be yes. Once 30 days elapsed when those restrictions were placed on Dr. Mcenany requiring him to have an assistant surgeon, there should have been an 805 report filed at that point.
Also, there should have been an 805 report filed once he resigned while the investigation was still in progress.
So there could have been two incidents that should have been reported to the Medical Board.
Q. (BY MR. HAPPE) Okay. The secord incident, is that the requirement that is identified in Section 805 (b) , 4 (a), as identified in paragraph 4 of the Medical Board findings?
A. Yes.
Q. And is the purpose of that provision to prevent a bad doctor from bouncing from state to state?
MR.COLWIN: Objection to form.
THE WITNESS: No. It's not really designed to keep them from bouncing from state to state. It's more to keep them from bouncing from one hospital to the next in California--
MR. HAPPE: Okay.
THE WITNESS: - without some notice to the Medical Board.
Q. (BY MR. HAPPE) Do hospitals in another state have access to determine whether a physician who has resigned
resigned in the middle of an ongoing investigation, to your knowledge?
A. I don't know. Restrictions are required to be reported by the hospital to the National Practitioner Data Bank, but I don't know if other states have access to that information. They may, but I'm no expert on the databank.
Q. Okay. In any event, that reporting requirement is to prevent a doctor from bouncing from hospital to hospital, then?
A. Yes. Let me -- let me modify that. It doesn't really prevent them from bouncing from hospital to hospital. But what it does is it gives the Medical Board notice that there is a problem with this physician, gives us the opportunity to investigate. Also puts the other hospitals on notice, because that 805 report is on file. Should that physician seek staff privileges, hospitals are required to check with the Medical Board before they grant those staff privileges to see if any 805 reports are on file.
So I just want to make sure that that's clear, that it doesn't prevent them, but it does put the other facilities and the Medical Board on notice.
Q. I understand. Thank you for that clarification.
Did the Medical Board of California becare aware of a cover-up of the restriction?
MR. COLWIN: Objection to the form of the question and also foundation.
Go ahead.
Q. (BY MR. HAPPE) ,Or a -- did the Medical Board become aware at some point of a cover-up between Dr. Mcenany and Kaiser with respect to avoiding the filing of an 805 report?
MR. COLWIN: Same objections.
THE WITNESS: We did become aware that there was an effort -- what we -- what I would classify as a cover-up or a failure to report that was facilitated by Dr. Mcenany and his lawyer with Kaiser; that if he resigned, that there wouldn't be any reporting to the Medical Board.
Q. (BY MR. HAPPE) Mr. Thornton, in Exhibit A to Exhibit 1, there is reference in paragraph 12 am 13 to some corresporoence between the attorneys for Kaiser Hospital in San Francisco and Dr. Mcenany's attorney.
Do you see that in Exhibit 1A?
A. Yes.
Q. Are those letters identified in Exhibits 5 and 6 to this deposition? Could you take a look at those, please.
MR. COLWIN: Here you go.
THE WITNESS: Exhibit Number 5 is the June 18th letter -- June 18th, 1993, letter fran Dr. Mcenany's attorney to Kaiser. That is identified as Exhibit 5.
The June 25th, 1993, letter in paragraph 13 from Mr. William Patrick, Kaiser Vice President, to Dr. Mcenany's lawyer is the letter identified as Exhibit 6.
Q. (BY MR. HAPPE) Do Exhibits 5 and 6 evidence the cover-up engaged in by Dr. Mcenany and Kaiser?
MR. COLWIN: Objection to form.
Go ahead.
Also, hearsay.
Go ahead.
THE WITNESS: It's my belief and the Medical Board's belief that they do.
Q. (BY MR. HAPPE) Is it your belief that that was fraudulent, the activity on the part of Dr. Mcenany and Kaiser?
MR. COLWIN: Objection to foundation, form.
THE WITNESS: I -- I believe it was fraudulent activity. Whether it was on Dr. Mcenany's part or his lawyer's part with Dr. Mcenany's knowledge, I can't answer that aspect of it. But we believe -- the Medical Board believes that these letters evidence a - an attempt to cover up the fact that Dr. Mcenany was resigning with restrictions in place. And that, you know, contrary to Section 805 of the Business and Professions Code, those restrictions, that information, would not be reported to the Medical Board.
Q. (BY MR. HAPPE) Do those letters, Exhibits 5 and 6, evidence a conscious disregard of the requirement in Rule 805?
MR. COLW!N: Objection. Fom and. foundation. In addition, the question is asking this gentleman, this witness, to enter into the mind of Dr. Mcenany as well as other individuals who drafted and received these documents.
Go ahead.
THE WITNESS: I would agree with counsel tha.t I can't -- I can't comment on that because I don't know if it was a conscious effort on their part to disregard the law. I think the documents pretty much - pretty well speak for themselves .
Q. (BY MR. HAPPE) I'd like you to take a look at Exhibit B that's attached to Exhibit 1. That is the defense that was asserted by the administrators at Kaiser Pemanente in San Francisco.
A. Yes.
Q. And is there anywhere in that defense where Mr . Alvarez and Dr. Madvig specifically denied that there was a restriction on Dr. Mcenany's privileges? /Again, that's a specific denial of the restriction.
A. Well, a specific denial that there were restrictions, I don't see that present in here, no.
Q. Okay. According to the notification, the maxinun penalty for the violation -- Kaiser's violation for failure to file the 805 report was a fine of $20,000; is that correct?
A. No. The maximum penalty is $10,000 that can be applied to both individuals.
Q. Okay. 10,000 for each violation, there being two violations would be $20,000?
A.. Correct.
Q. And what was the outcome of the proceedings against Mr. Alvarez and Dr.Madvig?
A. Well, that's contained in Exhibit 1 starting with, I guess, paragraphs 1 thtough 8; and do you want me to go through that or --
Q. Well, it appears to me that they decided not to mount any kind of vigorous defense but agreed to pay a fine of $19,900; is that correct?
MR. COLWIN: Object to the form and characterization of the question.
Go ahead.
THE WITNESS: Specifically the respondents, which would be Dr. Madvig and Mr. Alvarez, stated their understanding of Section 805 and the requirements of 805, that they maintained that they never intentionally failed to file a required report with the Medical Board; that they regularly seek out the advice of counsel concerning the need to file 805 reports; that they agreed to prepare a
written document regarding the filing of 805 reports which will identify the individual and so on in paragraph 4; and that they also agree to pay the Medical Board of California the amount of $19,900.
Q. (BY MR. HAPPE) And that's just $100 short of the maximum fine they would have had to pay?
A. Yes.
Q. Based on your experience as an employee of the Medical Board of California and in being exposed to matters 5 like this where notification of violations are asserted by the Board, if one has a solid defense, do you find that they would typically engage in a settlment agreement such as Exhibit l?
MR. COLWIN: Objection to form. Also, relevancy.
FOR THE PLAINTIFFS:
MICHAEL J. HAPPE Attorney At Law Appearing by Telephone
Ryberg & Happe, SC
200 Riverfront Terrace
Suite 100
P.O. Box 1999
Eau Claire, Wisconsin 54702-1999
(715) 833-9699
FOR THE DEFENDANTS:
DAVID J. COLWIN
Attorney At Law
Sager, Colwin, Samuelsen & Associates, S.C.
201 South Marr Street
Fond Du Lac, Wisconsin 54935
(920) 921-5770
---o0o---
INDEX OF EXAMINATION
PAGE
BY MR. HAPPE ................................................................................ 4
BY MR. COLWINN .........................................................................29
FURTHER EXAMINATION
BY MR. HAPPE ......................................................................... 59, 70
BY MR. COLWIN............................................................................ 68
EXHIBITS
PLAINTIFFS' DESCRIPTION PAGE
1 Settlement Agreement....................................................................4
2 Decision .................................................................................... 4
3 Confidential Memorandum ........................................................... 4
4 5/3/93 Correspondence ................................................................4
5 6/18/93 Correspondence.............................................................. 4
6 6/25/93 Correspondence.............................................................. 4
7 Application for Appointment to the Medical Staff............................4
---o0o---
BE IT REMEMBERED that on Friday, the 25th day of May, 2007, at the hour of 9:14 a.m. of said day, at the MEDICAL BOARD OF CALIFORNIA, 1426 Howe Avenue, Suite 92, Sacramento, California, before me, Julie Stinnett, a Certified Shorthand Reporter, personally appeared:
DAVE THORNTON,
called as a witness herein, having been administered an oath in accordance with C.C.P. Section 2094, was examined and testified as follows:
---o0o--
(Exhibits 1-7 were marked for identification.)
EXAMINATION BY MR. HAPPE
Q. Would You please state your full name.
A. David Thornton, T-h-o-r-n-t-o-n.
Q. Mr. Thornton, what is your professional address?
A. It's 1434 Howe Avenue, H-o-w-e, Sacramento, California 95825.
Q. Have you ever given a deposition before?
A. Yes.
Q. Just to familiarize you with some of the ground rules, if if you don't hear me or understand my question, please let me know.
A. Okay.
Q. If you don't understand a question, just please let me know that. If you have to take a break, please let us know.
You have been sworn to tell the truth. This deposition would be really the same as if you were testifying in a court of law.
Do you understand that?
A. Understood. Yes.
Q. What is your occupation, sir?
A. I'm the Executive Director of the Medical Board of California.
Q. And what does the Executive Director of the Medical Board of California do? What are your duties?
A. Well, I am appointed by the board members. There are 21 board members who are appointed by the governor.
Nineteen of them are appointed by the governor, two by the legislature here in California. They then, in turn,
appoint an executive director, and I act as the person delegated with their authority to run the day-to-day operations of the Medical Board, the licensing operations the enforcement operations and our various programs. So I have the delegated authority of the Board to perform those duties.
Q. The Medical Board of California, then, is an entity of the state of California?
A. It is. It's under the umbrella of the Department of Consumer Affairs, and it is the state agency that licenses physicians and surgeons and disciplines those license.
Q. My next question was going to be what is the purpose of the medical board, and you have just explained that purpose?
A. I did .
Q. Okay. How long have you been the Executive Director for the Medical Board?
A. Approximately three years.
Q. And how long have you been employed by the Board?
A. Approximately 32 years.
Q.- Are you-familiar with an investigation by the Medical Board - when I Say ''Medical Board," I'm referring to the Medical Board of California throughout. So if you would please take that in consideration.
Are you familiar with the Medical Board's investigation of Kaiser Permanente Hospital in San Francisco and a couple of its administrators, Dr. Madvig and Alvarez?
A. Yes, I am.
Q. I'd like you to take a look at Exhibit 1, please.
A. Okay.
Q. Could you tell us what Exhibit 1 is.
A. Exhibit 1 is a Settlement Agreement of the imposition of violation (sic) and civil penalty against Mr. Alvarez, Frank Alvarez, and Dr. Madvig, Philip R. Madvig, both employed by Kaiser Permanente, San Francisco.
Q. And Exhibit 1 attaches and incorporates into it two exhibits, it appears, Exhibit A and Exhibit B; is that correct?
A. That's correct.
Q. And what is Exhibit A attached to Exhibit 1?
A. Exhibit A is the Notification of Violation and Imposition of Civil Penalty that was served on Mr. Alvarez and Dr. Madvig.
Q. And what is Exhibit B attached to Exhibit 1?
A. Exhibit B is the Notice of Defense and Special Defense.
Q. It's my understanding that Exhibit 1 is a public document; is that true?
A. That's correct.
Q. And Exhibit 1 is a certified public document certified by the records custodian of the Medical Board of California?
A. Correct.
Q. And does that certified public document that we have identified as Exhibit 1 include Exhibits A and B? In other words, when we say that Exhibit 1 is a public document, is that also true of the exhibits that are attached to Exhibit 1?
A. Yes.
Q. At this time, I'd like you to take a look at Exhibit 2, and I would ask you to identify that document, please.
A. This is the Board's Decision -- the Medical Board's Decision in the natter of the accusations filed against Michael T. Mcenany, M-c-e-n-a-n-y, M.D., Case Number 03-1997-71927. The decision was ordered July 7th, 1998, with an effective date of July 14th, 1998,
Q. Attached to Exhibit 2 is Exhibit A; is that correct?
A. Yes.
Q. Could you identify Exhibit A, please.
A. Exhibit A is a copy of the accusation filed against Dr. Mcenany. and an accusations is a -- an administrative charging document charging him with various violations in the Medical Practice Act.
Q. Is Exhibit 2 a public record in the State of California?
A. Yes.
Q. And Exhibit 2 also appears to be a certified public record; is that correct?
A. That's correct.
Q. And when and by whan was Exhibit 2 certified?
A. It was certified by Loretta Arroyo, A-r-r-o-y-o, records custodian. And it was certified on May 24th, 2007,
Q. Mr. Thornton, I'd like to go into a little more detail with respect to Exhibit 1.
A. Okay.
Q. When I say Exhibit 1, again, I'm referring to Exhibit 1 that incudes as one document the exhibits that are attached thereto.
Do you understand that?
A. Yes.
Q. One more thing before I get to Exhibit 1. I'm sorry. Are you familiar with the investigation conducted by the Medical Board of California with respect to the accusations against Dr. Mcenany?
MR. COLWIN: Object to the form of the question.
Go ahead.
THE: WITNESS: Yes, I am familiar with it.
Q. (BY MR. HAPPE) In the Exhibit 2 it refers to Michael T. Mcenany. Do you know, has that individual also been referred to as Terry Mcenany?
A. I believe so, yes.
Q. And Dr. Mcenany was a cardiovascular or cardiothoracic surgeon in San Francisco between -- at least between the periods of 1993 --well, at some point in 1993?
A. Yes.
Q. With respect to Exhibit 1, what is your understanding of the reason for the investigation by the Medical Board of Mr. Alvarez and
Dr.Madvig?
MR. COLWN: Cbject to the form of the question. Also, foundation.
Go ahead.
THE WI'INESS: We had received information -- "we" meaning the Medical Board, had received informtion that restrictions had been placed on Dr. Mcenany's license by Kaiser Hospital in San Francisco, andI that those restrictions were not reported to the Medical Board as required by Section 805 of the Califomia Business and Professions Code.
Q. (BY MR. HAPPE) - Does the Medical Board of California then do a thorough investigation?
MR. COLWIN: Oject to the form of the question.
THE WITNESS: Yes.
Q. (BY MR. HAPPE) And I'd like to refer you to Exhibit A, page 2.
A. Exhibit 1 or A?
Q. The determination (sic) of violation.
MR. COLWIN: Are you referring, Michael, to Exhibit 1A?
MR. HAPPE: Yes.
MR. COLWIN: Okay.
Q. (BY MR. HAPPE) Are you with me there, Mr. Thornton?
A. Yes.
Q. Okay. Are the detennination of violations that are identified in Exhibit I, Exhibit A attached thereto, in paragraphs 4 through 16 the findings made by the Medical Board of California as result of their investigation?
MR. COLWIN: Objection as to form with regard to the word "findings."
Go ahead.
THE WI'INESS: Yes. The determination of violations was based on what we determined were violations as a result of our investigation.
Q. (BY MR. HAPPE) Those were findings made by the Medical Board of California that Dr. Madvig and Mr. Alvarez were entitled to admit or deny and raise a defense?
A. Well, they were in the form of a notice of violation, and, as such, they are allowed to raise a defense to defend themselves against those accusations.
Q. Those determination of violations were, in essence, findings that the Medical Board of California made as a result of the investigation?
MR. COLWIN: Objection to form.
Go ahead.
THE WITNESS: Yes .
Q. (BY MR. HAPPE) What were -- I'd like you to just go through, if you would, please, the specific findings that were made by the Medical Board as a result of its investigation.
MR. COLWIN: Objection to the form.
THE WITNESS: Okay. What we found was that sometime in late 1992, early 1993, that restrictions were placed on Dr. Mcenany's license - not -- strike that. Not on his license but on his ability to practice medicine at Kaiser in San Francisco, and the restrictions were in the form of the fact that he was not allowed to perform any surgeries unless he had an assistant surgeon there with him.
Q. (BY MR. HAPPE) Why is that a restriction on Dr. Mcenany's surgical privileges at Kaiser?
MR. COLWIN: Objection to form and foundation.
Go ahead.
THE WITNESS: Well, because of the way Section 805 reads, hospitals are required to report any restriction of staff privileges for a medical disciplinary cause of reason if those restrictions last more than 30 days. And by requiring that Dr. Mcenany have an assistant surgeon before he can perform any surgeries, the Medical Board deemed that as a restriction on his ability to practice Medicine at
that facility.
Q. (BY MR. HAPPE) Did the Medical Board determine that the restriction on Dr. Mcenany's privileges was necessitated as a result of concerns regarding his competency and concerns for patient safety?
MR. COLWIN; Objection to form and foundation.
THE WITNESS; I -- that was part of the findings of our investigation, yes.
Q. (BY MR. HAPPE) You mentioned Rule (sic) 805. Could you maybe step back for a moment and explain to us what Rule 805 is and how it applies to Kaiser and Dr. Mcenany?
A. Well, it's not a rule. It's a section of law. It's Section 805 of the California Business and Professions Code. And that section, as it was - the form it was in at that time in 1993, required the Chief of Staff and the Administrator of a hospital to report restrictions or the termination of staff privileges to the Medical Board within certain specified time periods. And these restrictions that were placed would be the result of a medical disciplinary cause or reason. In other words, they were placed on there because there was some concern about patient safety.
And let me give you an exanple of the type of restriction that probably wouldn't have to be reported to the Board, and that is if the physician failed to complete medical records at the hospital that didn't impact patient safety, that would not be a medical disciplinary cause of reason, even though his privileges were restricted.
Q. Okay. Dr. Mcenany has disputed that there was a restriction on his privileges, and he has classified it as just some temporary assistance for another doctor to assist him during a practice review or peer review that was taking place at Kaiser, and that it was not a restriction that needed to be reported.
Number one, do you and the Medical Board dispute that and why?
MR. COLWIN: Objection. Form, foundation.
Go ahead.
THE Wl'INESS: We do dispute that, and the reason is -- you have to look at the circumstance. Could Dr. Mcenany have practiced at the hospital without an assistant? And if the answer is yes, then it wouldn't be a reportable incident. But since our investigation found that he was required to have this assistant surgeon in order to practice at the facility, then that was a reportable incident.
Q. (BY MR.. HAPPE) And was the restriction that was found by the Medical Board confirmed by internal Kaiser Hospital documents?
MR. COLWIN: Objection to --
Q. (BY MR. HAPPE) Specifically, I'd like you to refer to Exhibits 3 and 4.
MR. COLWIN: Same objections.
THE WITNESS: Those two exhibits did help confirm our belief that there was a restriction in place that should have been reported.
Q. (BY MR. HAPPE) I'd like you to take a look at paragraph 7 of Notification of Violation.
Was there also a report by Dr. Bruce Blumberg that formed a basis for the Medical Board's conclusion that there was a risk to patient safety as a result of Dr. Mcenany's surgical performance in San Francisco in 1993?
MR. COLWIN: Objection. Hearsay and foundation.
Go ahead.
THE WITNESS: Well, as Dr. Blumberg found, there were some concerns for patient safety, and that there were two recent, unexpected patient deaths, a higher than expected mortality rate for Dr. -- he refers to him as, I think, "M" in this particular document -- Dr. Mcenany's patients, a higher incident of surgical complication, rough handling of tissues, a high incident of torn vessels, air locks (sic) and grafts that require lengthening or shortening, operating with inadequate assistance, scheduling cases in a manner that exceeds the threshold of his endurance and an episodic history of dysfunctional relationships with colleagues, both within and outside his own department.
Does that answer your question?
Q. (BY MR. HAPPE) Yes.
Did Dr. Blumberg find anything else with respect to Dr. Mcenany's surgical performance and his behavior at Kaiser?
MR. COLWIN: Objection as to the word -- object to the form of the question, specifically with regard to the word "find."
Go ahead.
THE WlTNESS: I think he found that he had characterized it as a forceful personality; one who was unwilling to accept or seek the advice of his colleagues, and also that his behavior on at least two occasions jeopardized patient care.
Q. (BY MR. HAPPE) Were there also concerns raised by members of the cardiovascular staff and physicians from the anesthesiology department concerning Dr. Mcenany --
MR. COLWIN: Cbject - I'm sorry.
[BY MR. HAPPE) -- in late 1992?
MR. COLWIN: Objection. Hearsay. Foundation and form.
Q. (BY MR. HAPPE) I'm referring to paragraph 6.
A. You are referring to which paragraph? I'm sorry.
MR. COLWIN: Six.
Q. (BY MR. HAPPE) Paragraph 6.
A. Six. Okay. Yes.
That was one of our findings.
Q. At what point did the Medical Board of California find that the -- through its investigation that the restriction on Dr. Mcenany's privileges was imposed?
MR. COLWIN: Same objections.
Go ahead.
THE WITNESS: Well, I don't know that we identified an exact date, but we did identify they were clearly in place early March of 1993.
Q. (BY MR. HAPPE) I take it, then, the fact that Dr. Mcenany was not allowed to perform any surgery without another senior staff surgeon acting as his first assistant was something that was extraordinary?
MR. COLWIN: Object to the form of the question, and assumes facts not in evidence.
Go ahead.
Q. (BY MR. HAPPE) I mean extraordinary in the sense it required to be reported and was out of the ordinary.
MR. COLWIN: Same objections.
THE WITNESS: Well, I dont's know if I would classify it as extraordinary, but it was a restriction on his privileges at that facility
which required reporting to the Medical Board.
Q. (BY MR. HAPPE) Was there any doubt by the Medical Board that, in fact, Dr. Mcenany's surgical privileges were restricted at Kaiser Hospital in 1993?
MR. COLWIN: Objection as to form. Foundation.
Hearsay.
Go ahead.
THE WITNESS: There was no doubt.
Q. (BY MR. HAPPE) As I understand it under Rule 805 of the Business and Professioos Code, there are two aspects to that: One is it's required to report a restriction if it's been imposed for more than 30 days during a 12-month period for a medical disciplinary reason; and, two, an 805 report is required to be completed if a physician resigns before the completion of or during an investigation
indicating a medical disciplinary cause or reason; is that correct?
MR.. COLWIN: Objection. Compound.
Go ahead,
THE WITNESS: You are correct on both counts. Section 805 is pretty explicit in that if a physician resigns while there is an investigation or upon the notification of an investigation, that's a reportable incident.
The reason for that is that individual hospitals have the ability to restrict or remove a physician from their staff, but that doesn't protect thepublic. That physician can then move to another hospital, get staff privileges and continue to practice and present a harm to the public.
So the Medical Board is key to getting that inforrmation so that we can do an investigation and place restrictions or revoke the physician's license, if necessary, and that's the reason 805 -- Section 805 is in existence.
Q. (BY MR. HAPPE) Were the restrictions on Dr. Mcenany's privileges ever terminated before he resigned his employment at Kaiser?
MR. COLWIN: Objection to form and foundation. Go ahead.
THE WITNESS: Not that I'm aware of.
Q. (BY MR. HAPPE) Okay. In its investigation, did the Medical Board of California find any evidence that the restriction had been lifted before Dr. Mcenany resigned?
A. No.
Q. And you mentioned earlier that part of the violation of Kaiser was the failure to report the restriction. Was there also a violation of 805 as a result of failing to file notice of the investigation of Dr. Mcenany before he resigned his employment and left California?
MR. COLWIN: Objection. Form and foundation.
Go ahead.
THE WITNESS: I'm not sure I understand your question. They are not - the hospital is not required to report an investigation to us. They are only required to report if there are restrictions placed while that investigation is in progress. They are required to report if the physician resigns while an investigation is in progress.
Q. (BY MR. HAPPE) Okay. I guess that's what I was referring to.
Was there a violation of the second aspect there that you just mentioned?
MR. COLWIN: Objection. Foundation.
Go ahead.
THE WITNESS: I think you are asking me if there was really two reportable incidents, and--
MR. HAPPE: Yes.
THE WITNESS: -- the answer would be yes. Once 30 days elapsed when those restrictions were placed on Dr. Mcenany requiring him to have an assistant surgeon, there should have been an 805 report filed at that point.
Also, there should have been an 805 report filed once he resigned while the investigation was still in progress.
So there could have been two incidents that should have been reported to the Medical Board.
Q. (BY MR. HAPPE) Okay. The secord incident, is that the requirement that is identified in Section 805 (b) , 4 (a), as identified in paragraph 4 of the Medical Board findings?
A. Yes.
Q. And is the purpose of that provision to prevent a bad doctor from bouncing from state to state?
MR.COLWIN: Objection to form.
THE WITNESS: No. It's not really designed to keep them from bouncing from state to state. It's more to keep them from bouncing from one hospital to the next in California--
MR. HAPPE: Okay.
THE WITNESS: - without some notice to the Medical Board.
Q. (BY MR. HAPPE) Do hospitals in another state have access to determine whether a physician who has resigned
resigned in the middle of an ongoing investigation, to your knowledge?
A. I don't know. Restrictions are required to be reported by the hospital to the National Practitioner Data Bank, but I don't know if other states have access to that information. They may, but I'm no expert on the databank.
Q. Okay. In any event, that reporting requirement is to prevent a doctor from bouncing from hospital to hospital, then?
A. Yes. Let me -- let me modify that. It doesn't really prevent them from bouncing from hospital to hospital. But what it does is it gives the Medical Board notice that there is a problem with this physician, gives us the opportunity to investigate. Also puts the other hospitals on notice, because that 805 report is on file. Should that physician seek staff privileges, hospitals are required to check with the Medical Board before they grant those staff privileges to see if any 805 reports are on file.
So I just want to make sure that that's clear, that it doesn't prevent them, but it does put the other facilities and the Medical Board on notice.
Q. I understand. Thank you for that clarification.
Did the Medical Board of California becare aware of a cover-up of the restriction?
MR. COLWIN: Objection to the form of the question and also foundation.
Go ahead.
Q. (BY MR. HAPPE) ,Or a -- did the Medical Board become aware at some point of a cover-up between Dr. Mcenany and Kaiser with respect to avoiding the filing of an 805 report?
MR. COLWIN: Same objections.
THE WITNESS: We did become aware that there was an effort -- what we -- what I would classify as a cover-up or a failure to report that was facilitated by Dr. Mcenany and his lawyer with Kaiser; that if he resigned, that there wouldn't be any reporting to the Medical Board.
Q. (BY MR. HAPPE) Mr. Thornton, in Exhibit A to Exhibit 1, there is reference in paragraph 12 am 13 to some corresporoence between the attorneys for Kaiser Hospital in San Francisco and Dr. Mcenany's attorney.
Do you see that in Exhibit 1A?
A. Yes.
Q. Are those letters identified in Exhibits 5 and 6 to this deposition? Could you take a look at those, please.
MR. COLWIN: Here you go.
THE WITNESS: Exhibit Number 5 is the June 18th letter -- June 18th, 1993, letter fran Dr. Mcenany's attorney to Kaiser. That is identified as Exhibit 5.
The June 25th, 1993, letter in paragraph 13 from Mr. William Patrick, Kaiser Vice President, to Dr. Mcenany's lawyer is the letter identified as Exhibit 6.
Q. (BY MR. HAPPE) Do Exhibits 5 and 6 evidence the cover-up engaged in by Dr. Mcenany and Kaiser?
MR. COLWIN: Objection to form.
Go ahead.
Also, hearsay.
Go ahead.
THE WITNESS: It's my belief and the Medical Board's belief that they do.
Q. (BY MR. HAPPE) Is it your belief that that was fraudulent, the activity on the part of Dr. Mcenany and Kaiser?
MR. COLWIN: Objection to foundation, form.
THE WITNESS: I -- I believe it was fraudulent activity. Whether it was on Dr. Mcenany's part or his lawyer's part with Dr. Mcenany's knowledge, I can't answer that aspect of it. But we believe -- the Medical Board believes that these letters evidence a - an attempt to cover up the fact that Dr. Mcenany was resigning with restrictions in place. And that, you know, contrary to Section 805 of the Business and Professions Code, those restrictions, that information, would not be reported to the Medical Board.
Q. (BY MR. HAPPE) Do those letters, Exhibits 5 and 6, evidence a conscious disregard of the requirement in Rule 805?
MR. COLW!N: Objection. Fom and. foundation. In addition, the question is asking this gentleman, this witness, to enter into the mind of Dr. Mcenany as well as other individuals who drafted and received these documents.
Go ahead.
THE WITNESS: I would agree with counsel tha.t I can't -- I can't comment on that because I don't know if it was a conscious effort on their part to disregard the law. I think the documents pretty much - pretty well speak for themselves .
Q. (BY MR. HAPPE) I'd like you to take a look at Exhibit B that's attached to Exhibit 1. That is the defense that was asserted by the administrators at Kaiser Pemanente in San Francisco.
A. Yes.
Q. And is there anywhere in that defense where Mr . Alvarez and Dr. Madvig specifically denied that there was a restriction on Dr. Mcenany's privileges? /Again, that's a specific denial of the restriction.
A. Well, a specific denial that there were restrictions, I don't see that present in here, no.
Q. Okay. According to the notification, the maxinun penalty for the violation -- Kaiser's violation for failure to file the 805 report was a fine of $20,000; is that correct?
A. No. The maximum penalty is $10,000 that can be applied to both individuals.
Q. Okay. 10,000 for each violation, there being two violations would be $20,000?
A.. Correct.
Q. And what was the outcome of the proceedings against Mr. Alvarez and Dr.Madvig?
A. Well, that's contained in Exhibit 1 starting with, I guess, paragraphs 1 thtough 8; and do you want me to go through that or --
Q. Well, it appears to me that they decided not to mount any kind of vigorous defense but agreed to pay a fine of $19,900; is that correct?
MR. COLWIN: Object to the form and characterization of the question.
Go ahead.
THE WITNESS: Specifically the respondents, which would be Dr. Madvig and Mr. Alvarez, stated their understanding of Section 805 and the requirements of 805, that they maintained that they never intentionally failed to file a required report with the Medical Board; that they regularly seek out the advice of counsel concerning the need to file 805 reports; that they agreed to prepare a
written document regarding the filing of 805 reports which will identify the individual and so on in paragraph 4; and that they also agree to pay the Medical Board of California the amount of $19,900.
Q. (BY MR. HAPPE) And that's just $100 short of the maximum fine they would have had to pay?
A. Yes.
Q. Based on your experience as an employee of the Medical Board of California and in being exposed to matters 5 like this where notification of violations are asserted by the Board, if one has a solid defense, do you find that they would typically engage in a settlment agreement such as Exhibit l?
MR. COLWIN: Objection to form. Also, relevancy.
Go ahead.
THE WITNESS: I've been involved in a number of failure to file 805 reports over the years and have been involved in settlement negotiations with those failures to file, and I find that if the facility and the individuals believe that they have a strong defense, that they will push the matter to trial.
I don't know if I can answer it any better than that. I can't get into the mindss of the --
Q. (BY MR. HAPPE) No. That's fine.
A. Okay.
Q. I just want to clarify one thing. In Exhibit 1 you refer to "Dr. M." That refers to Dr. Mcenany; is that correct?
A. Yes.
Q. Now, Mr. Thornton, if you would, please, take a look a.t Exhibit 7.
A. Okay.
Q. And I'll represent to you that that is a true and accurate copy of the Luther Hospital Application for Appointment to the Medical Staff completed by Dr. Mcenany that we have obtained through discovery in this matter.
I'd like you to take a look at page 2 in the middle of that page in reference to "Additional Information."
Do you see that portion of the document?
A. Yes.
Q. Dr. Mcenany was asked in that application to answer this question: "My prior staff memberships have been revoked, suspended, reduced, voluntarily withdrawn, or not renewed at all," and Dr. Mcenany responded by checking "No."
Do you see that?
A. Yes, I do.
Q. Was that a truthful response?
MR. COLWIN: Objection. Foundation. Again, this gentleman can't go into the mind of Dr. Mcenany.
Q. (BY MR. HAPPE) Let me clarify that for you, Mr. Thornton.
With respect to the findings that the Medical Board of California made concerning the restriction as a result of its investigation, is
Dr. Mcenany's response to that question truthful?
MR. COLWIN: Same objections.
THE WITNESS: Based on the fact that this was signed by Dr. Mcenany in July of 1993, it's my opinion that that is not a truthful answer based on our investigation.
Q. (BY MR. HAPPE) Mr. Thornton, is there any doubt in your mind that Dr. Mcenany's privileges were restricted and required to be disclosed in an 805 report in 1993 while Dr. Mcenany was practicing in San Francisco, California?
MR. COLWIN: Objection. It's been asked and answered. Also, it's irrelevant and also foundation.
Go ahead.
THE WITNESS; No.
MR. HAPPE: Thank you. Those are all the questions I have. Mr. Colwin may have some questions for you.
MR. COLWIN; I do.
EXAMINATION BY MR. COLWIN
Q. Mr. Thornton, you were asked to bring with you today certain documents pertaining to the Medica1 Board of California's investigation of the two individuals from Kaiser pemanente as well as Dr. Mcenany, correct?
A. Do you mean the notice of the deposition included in that?
Q. Yes.
A. Yes, I was.
Q. Did you bring with you today the documents that were requested?
A. No.
Q. And why is it that you didn't?
A. Because the only documents that I advised Mr. Happe that I would release are public documents.
Q. Okay. And what specific public documents did you bring with you today?
There are a number of documents here that have been marked as exhibits, correct?
A. Correct.
Q. Could you tell us specifically which of those docurrents that have been marked today as exhibits are public documents that you can release?
A. Exhibit 1 and Exhibit 2,
Q. These are the only documents that you can release?
A. That's correct.
Q. Okay. I assurre that the MBC's file with regard to the Alvarez/Madvig investigation consists of considerably more than Exhibit Number, 1?
A. Yes.
Q. Okay. And I assume that the MBC's file with regard to Dr. Mcenany consists of considerably more than Exhibit Number 2?
A. Correct.
Q. Now, I take it you cannot tell us what is in those files today, specifically?
A. I can't. No, I can't.
Q. Why is that?
A. Well, I don't -- I have not reviewed the complete file. I know generally what's in an investigation file, but specifica1ly, each and every document that is in this file, no, I can't tell you.
Q. Okay. Let me ask you this: Did you review the MBC's file with regard to the Madvig/Alvarez investigation before coming here today?
A. Only the docuents that I have in front of me.
Q. Okay. And what about the MBC's file with regard to Dr. Mcenany, did you review that before coming here today in order to prepare yourself for the deposition?
A. No.
Q. Have you ever reviewed either one of those files in detail?
A. I have in the past, yes.
Q. When would you have done that most recently?
A. Probably the late 1990s, early 2000.
Q. Okay.
A. Somewhere in that area.
Q. At least seven years ago, perhaps longer?
A. Yes.
Q. Now, as I understand it, although you are the Executive Director today of the MBC, you were not back at the time of the Alvarez/Madvig and the Mcenany investigations, true?
A. Correct.
Q. And you also were not the investigator who was responsible for those two investigations, true?
A. True.
Q. There was an individual from the MBC who was responsible for those investigations, true?
A. Yes.
Q. In addition to obtaining some documents from Kaiser Pemanente, the investigator, Mr. Ball, interviewed a number of witnesses, didn't he?
A. Yes.
Q. And you -- strike that.
As a result of those interviews and conversations, can we assume there are probably either some statements and/or memos with regard to what has been said by these witnesses?
A. There would be statenents. There would be an investigation report prepared by Mr. Ball that summarizes the statements of those witnesses and documents.
Q. And those are not here in front of us today, are they?
A. No, they are not.
Q. So if I wanted to cross-examine you today with regard to the detailed basis for the MBC's position with regard to those investigations, I cannot do that, can I?
MR. HAPPE: Okay. Objection..
THE WITNESS; No.
MR. HAPPE: Calls for state of mind. Speculation.
(BY MR. COLWIN) Your answer was --
I'm sorry. Were you finished, Michael?
MR. HAPPE: Yes.
Q. (BY MR. COLWIN) Your answer was, no, I cannot cross-examine you because you don't have the documents here today?
A. No, I don't. You are correct.
Q. I am correct, I cannot cross-examine yoo?
A. Not on those docunents.
Q. Okay. I can't cross-examine you -- the only thing that I can cross-examine you today -- with regard to today is the accusations and the notification of civil penalty, true, and the other documents that are attached?
A. Documents - right. The exhibits that are in front of us.
Q. Okay. Again, Exhibits 1 and 2 are just a fraction of the documents that are in the Medical Board's files with regards to those two proceedings, true?
A. True.
Q. In fact, although there are some references in the notification of civil penalty and the accusation to some specific documents, we don't -- you did not produce today any of the docurents that were considered by the Medical Board in reaching its conclusions or its allegations, true?
A. True.
MR. HAPPE: Objection. That misstates.
MR. COLWIN: Okay.
MR. HAPPE: David, the letters and the two memos are specifically referenced.
MR. COLWIN; I indicated in my question that the accusation and the notification of civil penalty refer to those documents, but Mr. Thornton did not produce those documents.
Q. (BY MR. COLWIN) Is that true?
A. That's true.
Q. Okay. And you cannot produce those docurrents, true?
A. True.
Q. By California law or -
A. True
Q. -- adninistrative --
A. Right.
Q. Okay. Now, any information and conclusions that you have reached individually, any opinion that you have provided today, are based upon essentially double hearsay. In other words, you -- you did not investigate this matter yourself, did you?
A. No, I did not.
Q. And you have not reviewed the documents that form the basis for the Medical Board's opinions or conclusions in their entirety, have you?
MR. HlAPPE: Objection. Vague and ambiguous.
Q. (BY MR.COLWIN) Go ahead.
A. That's correct, I have not.
Q. Okay. And to the extent that you have reviewed some of the documents, you have not done that for at least seven years, true?
A. True.
MR. HAPPE: Objection. David, four of the documents are right on the table.
MR. COLWIN: I'm talking about -- I'm sorry. I'll clarify that.
Q. (BY MR. COLWIN) You have not reviewed the - with the exceptions of Exhibits 1 and 2, you have not reviewed the investigation documents in at least seven years, true?
MR. HAPPE: Objection. Misstates.
David, Exhibits 3, 4, 5 and 6 are on the table. 3 He's reviewed them this morning in the course of the deposition.
Q. (BY MR. COLWIN) You can answer. Go ahead.
A. Well, I'm confused, because I have reviewed some of the docurents that would have been in the file, the documents that Mr. Happe just referred to, and I have reviewed those this mornning. So as recent as this morning, I reviewed some of the documents that are contained in our investigation file, although I did not produce these documents. I don't -- I would have to ask Mr. Happe where he obtained those, because he didn't obtain them from the Medical Board.
Q. Okay. Have you reviewed -- for exanple, have you ever reviewed, to the test of your recollection, Dr. Mcenany's response? I don't mean the formal response but the response, either from him or through his attorney, to the allegations that made back in 1996 and 1997?
MR. HAPPE: Objection. Vague and ambiguous.
What allegations are you referring to? The failure to report the 805 or the accusations in the -- accusations specifically against Dr. Mcenany?
MR.COLWIN: Both.
THE WITNESS: Have I reviewed his response to either of those charges ... and allegations? No.
Q. (BY MR. COLWlN) Okay. Let's talk a little bit about your role, if any, back in 1996 and 1997 with regard to these two proceedings.
Did you have any fomal role with regard to the Madvig/Alvarez proceeding?
A. Yes.
Q. What was that?
A. At the time I was a supervising investigator. I was in charge of the Board's Disciplinary Coordination Unit, which is the unit that handles and processes and serves all of the legal docunents, including the -- would include all of the documents contained in Exhibit l.
Q. Okay.
A. So those documents are prepared by our lawyer, the Deputy Attorney General who's assigned to the matter. They are -- I'm going to give you an idea of the process.
Q. Sure. 'That's fine.
A. The process is that then those legal docunents are forwarded to our headquarter's office here in Sacramento to the Discipline Coordination Unit. They are prepared for the signature of the Executive Director. And once that's done, then those docurrents are served on the parties.
The same would be true of Exhibit Number 2, the accusation, which is Exhibit 2A, I believe, is processed through the unit that I was in charge of.
And regularly I reviewed all the documents as they came through that were processed by the analysts in that unit. So that's my involvement in it and my familiarity with the case.
Q. Okay. Let's talk a little bit further about procedure with regard - specifically with regard to these two letters, that is, the Madvig/Alvarez letter and the Mcenany letter.
Now, in both of those cases there were formal documents filed by the MBC with regard to one against Dr. Madvig and Mr. Alvarez and one against Dr. Mcenany,
Correct?
A. Correct.
Q. And, basically, what those documents were were similar to complaint that would be filed in an administrative proceeding, true?
A. True.
Q. There are formal names given to those clocuments. Basically what they amount to are complaints, true?
A. You could make the analogy that they are similar to a criminal complaint. They are charges that have to be proven.
Q. Sure. What they represent are allegations that are being made by the Medical Board of California against Alvarez and Madvig and Dr. Mcenany, true?
A. True.
Q. In fact, the settlement agreements that were reached with regard to both of those matters refer to allegations that were being made by the Medical Board of California against those three individuals, true?
A. Just a moment. Yes.
Q. Okay. And although you have -- or Attorney Happe has phrased a number of questions in terms of "findings by the Medica1 Board," the fact of the matter is there has never been a judicial or quasi judicial finding of any kind with regard to Dr. Mcenany or Dr. Madvig or Mr. Alvarez in these mtters; isn't that true?
A. I'm not understanding. We have - if you mean did it go to trial and we proved the charges at trial, no. That did not happen. But there was a settlement in both of them; one with Dr. Mcenany surrendering his license based on the fact that there were charges pending at the time and the settlement that we have already talked about in the Madvig/Alvarez--
Q. I understand that.
A. I guess that's what I'm saying. I don't understand your question. Does it relate to having gone to trial and prove the charges?
Q. Yes.
A. No, that didn't happen.
Q. Okay. All right. The reason it didn't happen was because these charges were denied, and ultimately there was a settlerrent between the individuals and the Medica1 Board of California, true?
MR. HAPPE: I object to the extent that the restriction was never specifically denied.
You can go ahead and answer.
THE WITNESS: I would say that that's true, that there were - Dr. Mcenany denied when we stipulated to surrender his license. I don't think there was a specific denial by Dr. Madvig and Mr. Alvarez.
Q. (BY MR. COLWIN) Okay. Let's take a look at Exhibit Number 1, and I believe it is lB, the notification (sic) of Defense that was filed by Kaiser PelIllanente.
Do you have that?
A. Yes.
Q. Okay. Okay. On the second page of the Notice of Defense and Special Defense, Kaiser specifically denies the allegations contained in the notice (sic) of Violation and Imposition of Civil Penalty, true?
A. True.
Q. Okay. So they .... have denied all of the allegations made by the Medical Poard of California, true?
A. You didn't finish the sentence on that: " ... and request a hearing."
Q. Okay.
A. So at some point they could have had a hearing on this mltter, and they chose not to, and there was a settlement. This was an initial document that was filed by them basically denying the charges. You are right.
Q. Okay.
A. This was a Notice of Defense.
Q. Okay. Mr. Happe asked some questions before, and you just made some reference to the fact that Kaiser did not specifically deny that there was a restriction, and, in fact, Kaiser did deny the allegations made by the Medical Board, didn't it?
A. Yes.
Q. Okay. And they did request a hearing, true?
A. Yes, they did.
Q. Okay. And if it went to a hearing, theMedical Board of California would have been -- would have had the burden of proof, true?
A. Yes.
Q. Just like a civil case or a criminal case, true?
A. Yes.
Q. And the burden of proof in that kind of a matter is much higher than it is in a civil matter, isn't it?
MR. HAPPE: Objection. Calls for a legal conclusion. Competency. 1 don' t think he's required to answer a question like that that calls for a legal conclusion.
Q. (BY MR. COLWIN) Well, the truth is, in a matter such as this, the burden of proof for the Medical Board of California is clear and convincing evidence as opposed to ... preponderance of evidence, true?
A. There is two different standards. On the civil penalty, it's preponderance. On the accusation against Dr. Mcenany for - against his medical license is clear and convincing.
Q. Okay. If this matter -- the proceeding against Dr. Madvig and Mr. Alvarez was ultimately settled, true?
A. True.
Q. And Kaiser Permanente consistently denied that there was ever a restriction, true?
MR. HAPPE: Objection. Foundation.
THE WITNESS: I -- I don't know the answer to that question, whether they consistently denied or at some point -- I'd have to go back and look at the settlement agreement part of it. But by using the term "consistently denied," I don't know what that means.
Q. (BY MR. COLWIN) Okay. Well, can you produce a docurnent today in which Kaiser admitted that there was a restriction?
A. NO.
Q. Do you know of such a document?
A. No.
Q. As far as you know, no such document exists, true?
A. As far as I know, that's true.
Q. Okay. Now, although you feel strongly about the Medical Board of California's position, the truth is, if this matter went to a hearing, evidence would be put on by both sides, and there was some risk to both sides that one or the other would lose, true?
A. True.
Q. Including the Medical Board of California. There was the possibility that if this matter went to triaL the Medical Board could lose?
MR. HAPPE: Objection to the term "possibility."
You want to put a percentage on that or just to the extent that anything in the world is possible?
Q. (BY MR. COLWIN) Is that true?
A. That would be my response, anything in the world is possible.
Q. The truth is, any time one of these matters goes to trial, there is some risk to both sides, true?
A. Yes.
Q. And going back to one of my earlier questions, there has never been a finding by a judge or a jury that, in fact, there was a restriction, true?
MR. HAPPE: Objection. Asked and answered.
You can go ahead.
THE WITNESS: True.
Q. (BY MR. COLWlN) And with regard to Dr. Mcenany, the proceeding against him was also settled; is that true?
A. That's true.
Q. And in his Settlement Agreement, it specifically indicates that he denied the accusations or allegations ,that were being made against him, true?
A. That's part of what he -- he stated when settling the case. He also indicated that should he ever reapply for license in California, then the matters would be deened true.
Q. I understand that, but --
But, specifically, he did deny the charges.
That's paragraph 10 of Exhibit 2.
Q. And so Dr. Mcenany, during the investigation and through the settlement of this matter, denied the allegations that were being made against him, true?
MR. HAPPE: Object to the extent it misstates. You can answer.
THE WITNESS; My answer is is that in this document, Exhibit Number 2, paragraph 10, he specifically denies the allegations and the accusations,
Q. (BY MR. COLWIN) Okay, Now, let's talk a little bit about the alleged restriction. First of all, is there a statute or some administrative code -- administrative code provision in California that defines the word "restriction"?
MR. HAPPE: I object to the form of the question, specifically the term alleged "restriction."
You can go ahead and answer, if you can, sir.
Q. (BY MR. COLWIN)' Well, let's deal with that specific issue.
The truth of the matter is that because there was no judicial determination as to whether the allegations were true, the Medical Board's opinion with regard to the restriction was nothing more than an allegation, true?
A. It was an allegation, that's true.
Q. Okay. And so my use of the term "alleged restriction" is a fair characterization of that term, true?
MR. HAPPE; Objection. Form of the question. Foundation.
You can go ahead and answer.
THE WITNESS: I think that that's probably a fair statenent, that, you know, the Medical Board believed that there was a restriction of his ability to practice medicine at that facility, but that would have been an alleged, you know -- I guess you could characterize that as alleged,
Q. (BY MR. COLWIN) Okay. And so going back to my earlier question, is there a state statute that defines the word "restriction"?
MR.HAPPE: Object on foundation.
You can answer, if you can.
THE WITNESS: I don I t know how Section 805 read at the time in 1993. I believe it currently includes a definition of "restriction."
Q. (BY MR. COLWIN) Okay. So are you aware whether the -- whether Section 805 or any other California statute back in 1993 defined the word "restriction"?
A. I'm not aware of any statute that defined that. I believe there was case law that defined that, but I don't specifically -- what that -- I can't quote you the citation.
Q. As you sit here today, do you know -- can you tell me what the specific definition of the word "restriction" was back in 1993 under California law?
A. No, I can It.
Q. And can you tell me with certainty that there was a definition of the word "restriction" under California law in 1993?
A. No, I can't.
Q. Was there in 1993 a definition of the word "restriction" that had been adopted by the Medical Board of California, that you are aware of?
A. Not that I'm aware of.
Q. With regard to the alleged restriction, you do know that Dr. Menany during the practice review in 1993 was never required to obtain authorization or permission before operating on any patient, true?
MR. HAPPE: Objection. Foundation.
THE WITNESS: It Is my understanding that that's correct, a1though he was required to have an assistant surgeon.
Q. (BY MR. COLWIN) And with regard to your use of the word "requirement," and I believe earlier you referred to the word imposed, Kaiser took the position that this use of an assistant was not imposed on Dr. Mcenany but rather it was something that he voluntarily agreed to, true?
MR, HAPPE: Objection. Misstates.
THE WITNESS: If that was Kaiser's position, then they should have litigated this matter instead of settling it.
MR. COLWIN: I'll move to strike the answer as not being responsive.
THE WITNESS: But I think it is responsive.
Q. (BY MR. COLWIN) But Kaiser's position was -
A. I don't know what Kaiser's position was.
Q. Okay. And there has never been a finding that -
strike that.
You don't know what Kaiser's position was as to whether this was inposed or a voluntary matter on the part of Dr. Mcenany?
A. I know it was not a voluntary matter on the part of Dr. Mcenany. It was a limitation restriction that was imposed by Kaiser that if he was going to do surgeries, then he had to have an assistant surgeon. They didn't tell him he couldn't do surgeries. That's correct. But that is a limitation or a restriction on his ability to practice.
Q. But getting back to this issue of whether the use of an assistant was imposed on him and was a requirment, Kaiser has taken a position that while there is some evidence that the use of an assistant was imposed upon Dr. Mcenany, in fact, it was not imposed upon him, true?
MR. HAPPE: Objection. Misstates. Vague and antibiguous. And, essentially, calls for this witness to speculate as to what Kaiser considered it.
But you can answer, if you can.
THE WITNESS: I'm not sure I can answer that, because if Kaiser believed that this wasn't an imposed restriction that should have been reported, then they -- my belief is that they would not have settled the matter and paid the Medical Board $19,900.
MR. COLWIN: Okay. Move to strike the answer as not being responsive.
Q. (BY MR. COLWIN) Do you know or do you not know whether it was Kaiser's position that the use of an assistant was imposed and required of Dr. Mcenany?
MR. HAPPE: Objection. Asked and answered.
THE WITNESS: I believe I have answered that question, and I -- my response is that if Kaiser did not believe that this was a restriction that was imposed on Dr. Mcenany, they would not have settled this matter and paid the Medical Board $19, 900 .
MR. COLWIN: Again, I move to strike as not being responsive.
Q. (BY MR. COLWIN) That's not my question.
A. I'm not undererstanding your question.
Q. Okay. It has been alleged by the Medical Board that the use of an assistant was a requirement for Dr. Mcenany's surgeries, true?
A. It has been alleged. that that restriction was a requirement, that if he didn't - if he didn't have an assistant, then he couldn't perform surgeries and that should have been reported to the Medical Board. That's the best response I can give you to that.
Q. I understand. '
But, on the other hand, Kaiser has denied, first of all, that there was a restriction, true?
A. That's true.
MR. HAPPE: Objection. Misstates.
The record shows that they entered a general denial of allegations but didnot specifically deny the fact of the restriction.
You can go ahead and answer.
Q. (BY MR.COLWUN) Kaiser denied t:he allegations in the ccnplaint that was made against Madvig and Alvarez, including the fact or the -- including whether there was a restriction, true?
A. 'They denied the allegations in the Imposition of Civil Penalty, yes, that's true.
Q. Okay. Now with regard to this issue of whether Dr. Mcenany was required- to have an assistant for all of his operations, the truth is that from March until the time he left Kaiser Permanente, there were a number of operations he performed without a surgeon as an assistant; isn't that true?
MR. HAPPE: Objection.
THE WITNESS; I don't know.
MR. HAPPE: Foundation.
THE WITNESS: I don't know.
Q. (BY MR. COLWIN) Let's assume that is true. Let's assume that there were three to five cperations that Dr. J Mcenany performed - heart surgery cases -- during that period of time in which he did not have a surgeon as his first assistant. Let's just assume that's true.
Okay?
A. Okay.
Q. That would suggest that he - that there was not a fornal restriction, true?
MR. HAPPE: Objection. Foundation. Assumes facts not in evidence.
You can go ahead and answer, if you can.
THE WITNESS: My response would be that - there are two answers. The answer that there is no -- that there was no restriction or that he violated the restriction that was placed on him by the hospital.
Q. (BY MR. COLWIN) Okay. And let's assume that the hospital administration was aware of the fact and that the other members of the department were aware of the fact that Dr. Mcenany performed a number of surgeries during that period of time in 1993 in which he did nothave a surgeon acting as a first assistant, and that that was not considered to be a violation of the understanding between Dr. Mcenany and administration with regard to how he was to operate that would suggest that there was no formal restriction, true?
MR. HAPPE: Objection. Vague and ambiguous. I don I t know what you mean by a number or operations. Also, assumes facts not in evidence.
You can answer, if you can, sir.
THE WITNESS: Well, somewhere along the way I lost the gist of your question.
Q. (BY MR> COLWIN) It was a long question. Let me withdraw it.
A. Okay.
Q. Try it over.
A. Okay.
Q. Let's assume that administration was aware of the fact that Dr. Mcenany performed a number of surgeries from March until July without the use of a surgeon as a first assistant.
Okay?
A. Okay.
Q. And let' s further assme that there was no complaint or no allegation being rrade by the administration that that somehow violated any agreement, formal or informal, that administration had with Or. Mcenany during that period of time. That would suggest, that is, there was, in fact, not a formal restriction on his ability to practice, true?
MR. HAPPE: Same Objection. Vague and ambiguous with respect to a number of operations. It also assumes facts not in evidence and is an improper hypothetical.
You can answer, if you can, sir.
THE WITNESS: I'm not sure I can answer the question. I think if I take into consideration all of the assumptions that you want me to make, there could be a number of responses: That there was no restriction in place; that the people at Kaiser who knew that he was doing the operations weren't the ones who imposed the restriction.
I don't have enough information to make a conclusion one way or the other, to be honest with you.
Q. (BY MR. COLWIN) Okay. But, as we sit here today, you were not aware of the fact that Dr. Mcenany did perform a number of operations from March until July without the use of a surgeon as a first assistant, true?
MR. HAPPE: Objection. Again, ambiguous. Assumes facts not in evidence.
You can go ahead and answer, if you can.
THE WITNESS: True.
Q. (BY MR. COLWIN) Thank you.
In addition to the fact that Dr. Mcenany was not required to get permission from anyone before performing an operation between March and July 1993, there also was no limitation on his ability to perform any type of operation, true? In other words --
MR. HAPPE: Objection. First of all, I don't understand what you mean by "permission.' He had to have permission of an assistant to be in the room with him. And capable of performing any operation, this witness has already testified that he was not capable of performing any operation unless he had the assistant.
Object on those grounds.
You can answer, if you can.
Q. (BY MR. COLWIN) I'll rephrase the question.
In other words, beteen March of 1993 and July when he left Kaiser Permanente, there was no limitation of any kind on the type of operation that Dr. Mcenany could perform, true?
MR. HAPPE: Objection. Vague and arrbiguous as to
"type of operation." ,
You can go ahead and answer.
Q. (BY MR. COLWIN) Do you know what I mean by that?
A. I'm aware that he had to have an assistant surgeon. I'm not aware that the type of operations were restricted.
Q. Okay. For example, there are relatively simple, uncomplicated heart procedures that can be performed, such as a simple bypass, true?
A. I'm not sure that I would characterize any heart bypass or any operation as simple and uncomplicated, so I can't -- no, that's not true.
Q. well, from -- you are aware that, from a technical standpoint, certain heart operations are more complicated than others , true?
A. True.
Q. For example, there can be a relatively simple, uncomplicated bypass procedure from a technical standpoint, and then there can be very difficult heart procedures involving bypass and valve procedrres in the same operation, true?
MR. HAPPE: Objection. Foundation.
THE WITNESS: There are operations with different degrees of difficulty. I would say that that's true.
Q. (BY MR. CDLWIN) Okay. In this particular case, Dr. Mcenany's case, there was no limitation on his ability to perform the most complicated types of heart surgeries fran a technical perspective, true?
MR. HAPPE: Cbjection. Misstates.
Go ahead.
THE WITNESS: I don't know that to be true or untrue. I do know that he was required to have an assistant surgeon when he was doing any operation. So I don't - I've answered your question.
Q. (BY MR. COLWIN) Okay. If Dr. Mcenany were to testify at the trial of this matter that he could perform -- he was free to perform the nost complicated of heart surgeries, you have no evidence in your file that is contrary to that, true?
MR. HAPPE: Objection. Vague and anbiguous. What do you mean he could "perform the most complicated"? With a - with a -- the assistant?
I don't understand the question, but you can answer, if you can, sir.
THE WITNFSS: Well, if you are asking me if we have any evidence in our file to that, I don't know if there is any evidence one way or the other in the file.
Q. (BY MR. COLWIN) Also, with regard to the type of patient Dr. Mcenany could perform surgery on, you are not aware of any limitation in that regard, are you?
MR.. HAPPE: Objection. Vague and ambiguous to the extent that this witness has already testified that he couldn't do any operation without the assistance of another senior surgeon.
You can go ahead and answer.
Q. (BY MR. COLWIN) For purposes of these questions, I understand that it is your position that Dr. Mcenany was required to have a surgeon as an assistant.
That's not what I'm asking about, and you understand that, don't you?
A. Yes.
Q. Okay. I don't want to play games.
My question is, you are not aware of any limitation on Dr. Mcenany's ability to perform surgery on certain types of patients, true?
A. I am not aware that he had any limitations or restrictions on they type of patients.
Q. Okay. Now, if Kaiser believed -- if representatives of Kaiser believed that there was a restriction that was a result of medical discipline on Dr. Mcenany in 1993, Kaiser was under an obligation to report that within 30 days if the restriction was in existence for 30 days, true?
A. No. Not true. If - not what Kaiser believed. If there was a restriction on Dr. Mcenany's ability to practice medicine, that was reportable to the Medical Board underder Section 805.
Q. And I think earlier you testified that the alleged restriction would have been in place by early March, true?
MR. HAPPE: Objection. Object to the term "alleged."
You can answer, sir.
THE WITNESS: That it was in place, the restriction was in place, sometimee around the first part of March, I believe, is my--testimony.
Q. (BY MR. COLWIN) Okay. So if there was a restriction, that should have been reported by April, early April?
A. If it was in place for more than 30 days, that's correct.
Q. Okay. And Kaiser Permanente did not report that in April, did it?
A. That's correct. They did not.
Q. Did not report it in May.
A. Right.
Q. Did not report it in June?
A. Correct.
Q. And, ultimately, when Kaiser or the representatives of Kaiser reached a settlement with the Medical Board of California, there was no requirement that Kaiser report this alleged restriction at that time, true?
A. True.
Q. In fact, Kaiser Permmente or representatives of Kaiser Perrranente have never filed a report with regard to this alleged restriction, true?
MR. HAPPE: I'm sorry. I can't hear you.
Q. (BY MR. COLWIN) Kaiser Permanente and its representatives have never filed a report with regard to this alleged restriction on Dr. Mcenany, true?
A. True.
Q. And Kaiser Penranente has never filed a disciplinary report of any kind with regard to Dr. Mcenany, true?
MR. HAPPE: Objection. Foundation. Vague and ambiguous. Overbroad.
You can answer, if you can.
THE WITNESS: To the best of my knowledge, they have not.
MR. COLWIN: Okay. Let me double-check.
Okay. That's all I have.
FURTHER EXAMINATION BY MR. HAPPE
Q. Mr. Thornton, I just have a couple of follow-up questions, and I'll try to be very brief.
I'd like you to take a look at Exhibit 4, please.
A. Okay.
Q. Isn't it true, sir, that Exhibit 4 is a memo dated July 3, 1993, with Kaiser Permanente letterhead that identifies the scope of the restriction imposed on Dr. Mcenany's privileges in 1993?
MR. COLWIN: Object to the form.
Go ahead.
THE WITNESS: That's what it appears to be, yes.
Q. (BY MR.. HAPPE) When you said that Kaiser has not admitted to a restriction, essentially, Exhibit 4 is an admission of a restriction on Kaiser Permanente letterhead; is it not?
MR. COLWIN: Objection to the form. Also, requires this gentleman to make a decision as to what was in the minds of individuals who drafted this and whether that is the understanding of representatives from Kaiser who would be responsible for making that decision.
Go ahead.
THE WITNESS: This describes the format for assisting Dr. Mcenany during his practice review. I don't know that I would -- could characterize this as an admission. This is just describing the restrictions that were in place.
Q. (BY MR. HAPPE) In fact, isn't it better than an admission? This is evidence of the restriction; is it not?
MR. COLWlIN: Objection--
(BY MR. HAPPE) Referring to Exhibit 4.
MR. COLWIN: Objection to the form and also foundation.
Go ahead.
THE WITNESS: I believe it is.
Q. (BY MR. HAPPE) Then let's look at Exhibit 3, Mr. Thornton. Exhibit 3 is also evidence from the assistant physician and Chief of Kaiser Permanente, Dr. Douglas Grey, of the fact of the restriction; is it not?
MR. COLWIN; Same objections .
Go ahead.
THE WITNESS: I believe it is.
Q. (BY MR. HAPPE:) And so Exhibits 3 and 4 are better than an admission. In fact, they are evidence of the fact of the restriction; would you agree with that?
MR. COLWIN: Objection to form. Also foundation.
Go ahead.
THE WITNESS: This is part of the evidence that the Medical Board used to establish that there was a restriction on Dr. Mcenany's practice at Kaiser during the period from March -- early March 1993 until sometime -- in July when he resigned. Is it - I can't
remember how you characterize it. Is it better than? I don't know. It's just evidence that there was a restriction.
Q. (BY MR. HAPPE) With regard to -- Mr. Colwin asked you some questions about whtether you reviewed the entire Medical Board file concerning the Alvarez/Madvig and Mcenany matters that we have discussed. Did you need to review the entire files in order to give your testimony here today?
A. No.
Q. And Mr. Colwin has had every opportunity to cross-examine you with respect to the testimony you gave today, hasn't he?
A. I suppose he has.
Q. He cross-examined you for approxinately an hour and a half, I believe; isn't that true?
A. I don't know how long he cross-examined me. It could have been an hour and a half.
Q. Okay. At least an hour; would you agree with that?
A. Yes.
Q. And with the exception of the letter from Dr. Blumberg in April of 1993, all of the documents that are specifically identified in the notification have been identified as exhibits to your deposition, haven't they? Referring to Exhibits 3, 4, 5 and 6.
A. Yes. They have been marked as exhibits.
Q. So the only document that is specifically referenced in the Alvarez/Madvig matter that you did not review for your deposition is the Blumberg letter?
A. I - the Blumberg letter of April, is that what you are referring to?
Q. Yeah. That's the only docurrent that is specifically referenced in the notification that is not identified as an exhibit to your deposition?
A. That's correct.
Q. If Mr. Colwin wanted to cross-examine you on documents that are contained in Dr. Mcenany's file with the Medical Board of California, could Dr. Mcenany give his consent to the release of those docurents?
A. No.
Q. Are there any docurrents that you feel you needed to review in order to give the testimony that you gave today?
A. I believe that the documentts that I did review were sufficient for me to give my testimony today.
Q. Mr. Thornton, I'd like you to assume that there may have been two to three operations that Dr. Mcenany did at Kaiser during the period of the restriction where he did not have the assistance that was required under the restriction, but that there will be evidence at trial that there was no one available to act as his assistant, and that it was cleared okay for Dr. Mcenany to perform those operations without the assistant; if that is true, does that in any way diminish the fact that there was a restriction on Dr. Mcenany's privileges that required reporting in an 805 report?
A. I -- at this point, I don't believe that there would be. If these were operations that were condoned because of their emergency circumstances because there was no assistant available, I don't believe that that would supersede the fact that there was still a restriction in place where the individual had to have an assistant surgeon -- Dr. Mcenany had to have an assistant surgeon.
So, no, I don't believe that that would diminish the belief that there was a restriction in place.
Q. So if a couple of exceptions may have been made, that would not eliminate or reduce -- excuse me, that would not eliminate the fact that there was a restriction?
A. Correct.
Q. Next I need to address some of these questions that Mr. Colwin asked you about whether -- whether Dr. M:cenany needed approval before performing any of his operations.
Isn't it true tP.at Dr. Mcenany really would need approval to perform an operation tmder the restriction 16 because there had to have been available anot.l1er senior 17 staff surgeon?
MR. COmIN: Objection. Foundation.
Go ahead.
THE WITNESS: I guess my response to that question would be that I don't know whether he required approval or not. What I do know is that the requirement was that he have an assistant present when he was performing surgeries.
Q. (BY MR. HAPPE) Well, Dr. Mcenany would not be approved to perform an operation unless he had the proper
assistance; isn't that true?
MR. COLWIN: Foundation. It's also a leading question, Mr. Happe.
Go ahead.
THE WITNESS: True.
Q. (BY MR. HAPPE) And Dr. Mcenany was restricted in the types of operations he could perform during the pericd of timee that the restriction was in place because he couldn't perform any operation unless he was assisted by another senior staff surgeon; isn't that true?
MR. COLWIN: Objection as to foundation and mischaracterization of the facts.
Go ahead.
THE WITNESS: I don't think he was -- I don' t believe that he was restricted to the type of operation he could do as long as there was an assistant with him.
Q. (BY MR. HAPPE) Well, that's what I'm trying to get at. The type of operation -- well, he couldn't do any operation -- heart surgery -- unless he had the assistance that was required under the restriction; isn't that true?
MR. COllilN: Objection. Asked and answered.
Go ahead.
THE WI'INESS: Yes, that's true.
Q. (BY MR.HAPPE) And with regard to the types of patients Dr. Mcenany operated on during the time of the restriction, isn't it true that Dr. Mcenany could not operate on a patient that needed heart surgery unless he had the assistance of another senior staff surgeon as his assistant?
MR. COLWN: Same objection. Go ahead.
THE WITNESS: I think I've already answered that several times. It's true.
Q. (BY MR. HAPPE) Okay. And the fact that no 805 report was ever filed with respect to Dr. Mcenany is because there was the Settlement Agreement that Kaiser entered into where they paid a fine of $19,900 in lieu of the filing; isn't that correct?
A. Not necessarily. And I don't know the reasons why they weren't required to not only pay the penalty but also file an 805 report except that the passage of the had eliminated the need for the filing of the 805 report. We only keep them for a period of three years. So by the time the settlenent had occurred, a period of four years had elapsed. So there was really no need to file one at that time.
Q. The fact that Kaiser didn't file an 805 is what got them in trouble in the first place, correct?
A. Yes.
Q. Mr. Thornton, Dr. Mcenany wasn't required to file any respose to the notification of violation against Mr. Alvarez and Dr. Madvig, was he?
A. No.
Q. You had testified in the very beginning of the cross-examination by Mr. Colwin that he was not free to thoroughly cross-examine you. You don't really know that, do you? I mean, Mr. Colwin has had every opportunity today to cross-examine you; has he not?
MR. COLWIN: Objection to form and foundation.
Go ahead.
THE WITNESS: As I recall, his question was could he cross-examine me on all of the information that was contained in the file. And my response to that is is that no, he couldn't, because I don't have all of that material in front of me.
Q. (BY MR. HAPPE) Okay. But all of those materials do not support - strike that.
Your testimony is not based on every document in the file, correct?
A. Correct.
Q. And there is nothing to preclude Mr. Colwin from thoroughly cross-examining yoou on the testimony that you have given today, correct?
A. Yes.
MR. HAPPE: That's all I have. Thank you very much for your time.
FURTHER EXAMINATlON BY MR. COLWIN
Q. Just a few questions with regard to that issue. As we mentioned earlier, Exhibits 1 and -Exhibits 1 and 2 are documents that you have brought with you from the files, true?
A. Exhibit 1 was provided by Mr. Happe. Exhibit 2 was brought from the file because he didn't have complete copy.
Q. Okay. But --
A. But they are a part of the file, just to preclude the next question.
Q. Okay. But Exhibits 1 and 2 are the only documents that you can legally provide to the public, true?
A. Yes.
Q. And "the public" includes me and Mr. Happe, true?
A. True.
Q. And there are some other documents that have been marked as exhibits today, I think it is 3 through 6 or 7, that Mr. Happe has provided, but in addition to these other exhibits, the Medical Board of California's files on these two matters consists of more than these exhibits in front of us today, true?
A. Yes, true.
Q. And you cannot provide the files to me, other than Exhibits 1 and 2, true?
THE WITNESS: I've been involved in a number of failure to file 805 reports over the years and have been involved in settlement negotiations with those failures to file, and I find that if the facility and the individuals believe that they have a strong defense, that they will push the matter to trial.
I don't know if I can answer it any better than that. I can't get into the mindss of the --
Q. (BY MR. HAPPE) No. That's fine.
A. Okay.
Q. I just want to clarify one thing. In Exhibit 1 you refer to "Dr. M." That refers to Dr. Mcenany; is that correct?
A. Yes.
Q. Now, Mr. Thornton, if you would, please, take a look a.t Exhibit 7.
A. Okay.
Q. And I'll represent to you that that is a true and accurate copy of the Luther Hospital Application for Appointment to the Medical Staff completed by Dr. Mcenany that we have obtained through discovery in this matter.
I'd like you to take a look at page 2 in the middle of that page in reference to "Additional Information."
Do you see that portion of the document?
A. Yes.
Q. Dr. Mcenany was asked in that application to answer this question: "My prior staff memberships have been revoked, suspended, reduced, voluntarily withdrawn, or not renewed at all," and Dr. Mcenany responded by checking "No."
Do you see that?
A. Yes, I do.
Q. Was that a truthful response?
MR. COLWIN: Objection. Foundation. Again, this gentleman can't go into the mind of Dr. Mcenany.
Q. (BY MR. HAPPE) Let me clarify that for you, Mr. Thornton.
With respect to the findings that the Medical Board of California made concerning the restriction as a result of its investigation, is
Dr. Mcenany's response to that question truthful?
MR. COLWIN: Same objections.
THE WITNESS: Based on the fact that this was signed by Dr. Mcenany in July of 1993, it's my opinion that that is not a truthful answer based on our investigation.
Q. (BY MR. HAPPE) Mr. Thornton, is there any doubt in your mind that Dr. Mcenany's privileges were restricted and required to be disclosed in an 805 report in 1993 while Dr. Mcenany was practicing in San Francisco, California?
MR. COLWIN: Objection. It's been asked and answered. Also, it's irrelevant and also foundation.
Go ahead.
THE WITNESS; No.
MR. HAPPE: Thank you. Those are all the questions I have. Mr. Colwin may have some questions for you.
MR. COLWIN; I do.
EXAMINATION BY MR. COLWIN
Q. Mr. Thornton, you were asked to bring with you today certain documents pertaining to the Medica1 Board of California's investigation of the two individuals from Kaiser pemanente as well as Dr. Mcenany, correct?
A. Do you mean the notice of the deposition included in that?
Q. Yes.
A. Yes, I was.
Q. Did you bring with you today the documents that were requested?
A. No.
Q. And why is it that you didn't?
A. Because the only documents that I advised Mr. Happe that I would release are public documents.
Q. Okay. And what specific public documents did you bring with you today?
There are a number of documents here that have been marked as exhibits, correct?
A. Correct.
Q. Could you tell us specifically which of those docurrents that have been marked today as exhibits are public documents that you can release?
A. Exhibit 1 and Exhibit 2,
Q. These are the only documents that you can release?
A. That's correct.
Q. Okay. I assurre that the MBC's file with regard to the Alvarez/Madvig investigation consists of considerably more than Exhibit Number, 1?
A. Yes.
Q. Okay. And I assume that the MBC's file with regard to Dr. Mcenany consists of considerably more than Exhibit Number 2?
A. Correct.
Q. Now, I take it you cannot tell us what is in those files today, specifically?
A. I can't. No, I can't.
Q. Why is that?
A. Well, I don't -- I have not reviewed the complete file. I know generally what's in an investigation file, but specifica1ly, each and every document that is in this file, no, I can't tell you.
Q. Okay. Let me ask you this: Did you review the MBC's file with regard to the Madvig/Alvarez investigation before coming here today?
A. Only the docuents that I have in front of me.
Q. Okay. And what about the MBC's file with regard to Dr. Mcenany, did you review that before coming here today in order to prepare yourself for the deposition?
A. No.
Q. Have you ever reviewed either one of those files in detail?
A. I have in the past, yes.
Q. When would you have done that most recently?
A. Probably the late 1990s, early 2000.
Q. Okay.
A. Somewhere in that area.
Q. At least seven years ago, perhaps longer?
A. Yes.
Q. Now, as I understand it, although you are the Executive Director today of the MBC, you were not back at the time of the Alvarez/Madvig and the Mcenany investigations, true?
A. Correct.
Q. And you also were not the investigator who was responsible for those two investigations, true?
A. True.
Q. There was an individual from the MBC who was responsible for those investigations, true?
A. Yes.
Q. In addition to obtaining some documents from Kaiser Pemanente, the investigator, Mr. Ball, interviewed a number of witnesses, didn't he?
A. Yes.
Q. And you -- strike that.
As a result of those interviews and conversations, can we assume there are probably either some statements and/or memos with regard to what has been said by these witnesses?
A. There would be statenents. There would be an investigation report prepared by Mr. Ball that summarizes the statements of those witnesses and documents.
Q. And those are not here in front of us today, are they?
A. No, they are not.
Q. So if I wanted to cross-examine you today with regard to the detailed basis for the MBC's position with regard to those investigations, I cannot do that, can I?
MR. HAPPE: Okay. Objection..
THE WITNESS; No.
MR. HAPPE: Calls for state of mind. Speculation.
(BY MR. COLWIN) Your answer was --
I'm sorry. Were you finished, Michael?
MR. HAPPE: Yes.
Q. (BY MR. COLWIN) Your answer was, no, I cannot cross-examine you because you don't have the documents here today?
A. No, I don't. You are correct.
Q. I am correct, I cannot cross-examine yoo?
A. Not on those docunents.
Q. Okay. I can't cross-examine you -- the only thing that I can cross-examine you today -- with regard to today is the accusations and the notification of civil penalty, true, and the other documents that are attached?
A. Documents - right. The exhibits that are in front of us.
Q. Okay. Again, Exhibits 1 and 2 are just a fraction of the documents that are in the Medical Board's files with regards to those two proceedings, true?
A. True.
Q. In fact, although there are some references in the notification of civil penalty and the accusation to some specific documents, we don't -- you did not produce today any of the docurents that were considered by the Medical Board in reaching its conclusions or its allegations, true?
A. True.
MR. HAPPE: Objection. That misstates.
MR. COLWIN: Okay.
MR. HAPPE: David, the letters and the two memos are specifically referenced.
MR. COLWIN; I indicated in my question that the accusation and the notification of civil penalty refer to those documents, but Mr. Thornton did not produce those documents.
Q. (BY MR. COLWIN) Is that true?
A. That's true.
Q. Okay. And you cannot produce those docurrents, true?
A. True.
Q. By California law or -
A. True
Q. -- adninistrative --
A. Right.
Q. Okay. Now, any information and conclusions that you have reached individually, any opinion that you have provided today, are based upon essentially double hearsay. In other words, you -- you did not investigate this matter yourself, did you?
A. No, I did not.
Q. And you have not reviewed the documents that form the basis for the Medical Board's opinions or conclusions in their entirety, have you?
MR. HlAPPE: Objection. Vague and ambiguous.
Q. (BY MR.COLWIN) Go ahead.
A. That's correct, I have not.
Q. Okay. And to the extent that you have reviewed some of the documents, you have not done that for at least seven years, true?
A. True.
MR. HAPPE: Objection. David, four of the documents are right on the table.
MR. COLWIN: I'm talking about -- I'm sorry. I'll clarify that.
Q. (BY MR. COLWIN) You have not reviewed the - with the exceptions of Exhibits 1 and 2, you have not reviewed the investigation documents in at least seven years, true?
MR. HAPPE: Objection. Misstates.
David, Exhibits 3, 4, 5 and 6 are on the table. 3 He's reviewed them this morning in the course of the deposition.
Q. (BY MR. COLWIN) You can answer. Go ahead.
A. Well, I'm confused, because I have reviewed some of the docurents that would have been in the file, the documents that Mr. Happe just referred to, and I have reviewed those this mornning. So as recent as this morning, I reviewed some of the documents that are contained in our investigation file, although I did not produce these documents. I don't -- I would have to ask Mr. Happe where he obtained those, because he didn't obtain them from the Medical Board.
Q. Okay. Have you reviewed -- for exanple, have you ever reviewed, to the test of your recollection, Dr. Mcenany's response? I don't mean the formal response but the response, either from him or through his attorney, to the allegations that made back in 1996 and 1997?
MR. HAPPE: Objection. Vague and ambiguous.
What allegations are you referring to? The failure to report the 805 or the accusations in the -- accusations specifically against Dr. Mcenany?
MR.COLWIN: Both.
THE WITNESS: Have I reviewed his response to either of those charges ... and allegations? No.
Q. (BY MR. COLWlN) Okay. Let's talk a little bit about your role, if any, back in 1996 and 1997 with regard to these two proceedings.
Did you have any fomal role with regard to the Madvig/Alvarez proceeding?
A. Yes.
Q. What was that?
A. At the time I was a supervising investigator. I was in charge of the Board's Disciplinary Coordination Unit, which is the unit that handles and processes and serves all of the legal docunents, including the -- would include all of the documents contained in Exhibit l.
Q. Okay.
A. So those documents are prepared by our lawyer, the Deputy Attorney General who's assigned to the matter. They are -- I'm going to give you an idea of the process.
Q. Sure. 'That's fine.
A. The process is that then those legal docunents are forwarded to our headquarter's office here in Sacramento to the Discipline Coordination Unit. They are prepared for the signature of the Executive Director. And once that's done, then those docurrents are served on the parties.
The same would be true of Exhibit Number 2, the accusation, which is Exhibit 2A, I believe, is processed through the unit that I was in charge of.
And regularly I reviewed all the documents as they came through that were processed by the analysts in that unit. So that's my involvement in it and my familiarity with the case.
Q. Okay. Let's talk a little bit further about procedure with regard - specifically with regard to these two letters, that is, the Madvig/Alvarez letter and the Mcenany letter.
Now, in both of those cases there were formal documents filed by the MBC with regard to one against Dr. Madvig and Mr. Alvarez and one against Dr. Mcenany,
Correct?
A. Correct.
Q. And, basically, what those documents were were similar to complaint that would be filed in an administrative proceeding, true?
A. True.
Q. There are formal names given to those clocuments. Basically what they amount to are complaints, true?
A. You could make the analogy that they are similar to a criminal complaint. They are charges that have to be proven.
Q. Sure. What they represent are allegations that are being made by the Medical Board of California against Alvarez and Madvig and Dr. Mcenany, true?
A. True.
Q. In fact, the settlement agreements that were reached with regard to both of those matters refer to allegations that were being made by the Medical Board of California against those three individuals, true?
A. Just a moment. Yes.
Q. Okay. And although you have -- or Attorney Happe has phrased a number of questions in terms of "findings by the Medica1 Board," the fact of the matter is there has never been a judicial or quasi judicial finding of any kind with regard to Dr. Mcenany or Dr. Madvig or Mr. Alvarez in these mtters; isn't that true?
A. I'm not understanding. We have - if you mean did it go to trial and we proved the charges at trial, no. That did not happen. But there was a settlement in both of them; one with Dr. Mcenany surrendering his license based on the fact that there were charges pending at the time and the settlement that we have already talked about in the Madvig/Alvarez--
Q. I understand that.
A. I guess that's what I'm saying. I don't understand your question. Does it relate to having gone to trial and prove the charges?
Q. Yes.
A. No, that didn't happen.
Q. Okay. All right. The reason it didn't happen was because these charges were denied, and ultimately there was a settlerrent between the individuals and the Medica1 Board of California, true?
MR. HAPPE: I object to the extent that the restriction was never specifically denied.
You can go ahead and answer.
THE WITNESS: I would say that that's true, that there were - Dr. Mcenany denied when we stipulated to surrender his license. I don't think there was a specific denial by Dr. Madvig and Mr. Alvarez.
Q. (BY MR. COLWIN) Okay. Let's take a look at Exhibit Number 1, and I believe it is lB, the notification (sic) of Defense that was filed by Kaiser PelIllanente.
Do you have that?
A. Yes.
Q. Okay. Okay. On the second page of the Notice of Defense and Special Defense, Kaiser specifically denies the allegations contained in the notice (sic) of Violation and Imposition of Civil Penalty, true?
A. True.
Q. Okay. So they .... have denied all of the allegations made by the Medical Poard of California, true?
A. You didn't finish the sentence on that: " ... and request a hearing."
Q. Okay.
A. So at some point they could have had a hearing on this mltter, and they chose not to, and there was a settlement. This was an initial document that was filed by them basically denying the charges. You are right.
Q. Okay.
A. This was a Notice of Defense.
Q. Okay. Mr. Happe asked some questions before, and you just made some reference to the fact that Kaiser did not specifically deny that there was a restriction, and, in fact, Kaiser did deny the allegations made by the Medical Board, didn't it?
A. Yes.
Q. Okay. And they did request a hearing, true?
A. Yes, they did.
Q. Okay. And if it went to a hearing, theMedical Board of California would have been -- would have had the burden of proof, true?
A. Yes.
Q. Just like a civil case or a criminal case, true?
A. Yes.
Q. And the burden of proof in that kind of a matter is much higher than it is in a civil matter, isn't it?
MR. HAPPE: Objection. Calls for a legal conclusion. Competency. 1 don' t think he's required to answer a question like that that calls for a legal conclusion.
Q. (BY MR. COLWIN) Well, the truth is, in a matter such as this, the burden of proof for the Medical Board of California is clear and convincing evidence as opposed to ... preponderance of evidence, true?
A. There is two different standards. On the civil penalty, it's preponderance. On the accusation against Dr. Mcenany for - against his medical license is clear and convincing.
Q. Okay. If this matter -- the proceeding against Dr. Madvig and Mr. Alvarez was ultimately settled, true?
A. True.
Q. And Kaiser Permanente consistently denied that there was ever a restriction, true?
MR. HAPPE: Objection. Foundation.
THE WITNESS: I -- I don't know the answer to that question, whether they consistently denied or at some point -- I'd have to go back and look at the settlement agreement part of it. But by using the term "consistently denied," I don't know what that means.
Q. (BY MR. COLWIN) Okay. Well, can you produce a docurnent today in which Kaiser admitted that there was a restriction?
A. NO.
Q. Do you know of such a document?
A. No.
Q. As far as you know, no such document exists, true?
A. As far as I know, that's true.
Q. Okay. Now, although you feel strongly about the Medical Board of California's position, the truth is, if this matter went to a hearing, evidence would be put on by both sides, and there was some risk to both sides that one or the other would lose, true?
A. True.
Q. Including the Medical Board of California. There was the possibility that if this matter went to triaL the Medical Board could lose?
MR. HAPPE: Objection to the term "possibility."
You want to put a percentage on that or just to the extent that anything in the world is possible?
Q. (BY MR. COLWIN) Is that true?
A. That would be my response, anything in the world is possible.
Q. The truth is, any time one of these matters goes to trial, there is some risk to both sides, true?
A. Yes.
Q. And going back to one of my earlier questions, there has never been a finding by a judge or a jury that, in fact, there was a restriction, true?
MR. HAPPE: Objection. Asked and answered.
You can go ahead.
THE WITNESS: True.
Q. (BY MR. COLWlN) And with regard to Dr. Mcenany, the proceeding against him was also settled; is that true?
A. That's true.
Q. And in his Settlement Agreement, it specifically indicates that he denied the accusations or allegations ,that were being made against him, true?
A. That's part of what he -- he stated when settling the case. He also indicated that should he ever reapply for license in California, then the matters would be deened true.
Q. I understand that, but --
But, specifically, he did deny the charges.
That's paragraph 10 of Exhibit 2.
Q. And so Dr. Mcenany, during the investigation and through the settlement of this matter, denied the allegations that were being made against him, true?
MR. HAPPE: Object to the extent it misstates. You can answer.
THE WITNESS; My answer is is that in this document, Exhibit Number 2, paragraph 10, he specifically denies the allegations and the accusations,
Q. (BY MR. COLWIN) Okay, Now, let's talk a little bit about the alleged restriction. First of all, is there a statute or some administrative code -- administrative code provision in California that defines the word "restriction"?
MR. HAPPE: I object to the form of the question, specifically the term alleged "restriction."
You can go ahead and answer, if you can, sir.
Q. (BY MR. COLWIN)' Well, let's deal with that specific issue.
The truth of the matter is that because there was no judicial determination as to whether the allegations were true, the Medical Board's opinion with regard to the restriction was nothing more than an allegation, true?
A. It was an allegation, that's true.
Q. Okay. And so my use of the term "alleged restriction" is a fair characterization of that term, true?
MR. HAPPE; Objection. Form of the question. Foundation.
You can go ahead and answer.
THE WITNESS: I think that that's probably a fair statenent, that, you know, the Medical Board believed that there was a restriction of his ability to practice medicine at that facility, but that would have been an alleged, you know -- I guess you could characterize that as alleged,
Q. (BY MR. COLWIN) Okay. And so going back to my earlier question, is there a state statute that defines the word "restriction"?
MR.HAPPE: Object on foundation.
You can answer, if you can.
THE WITNESS: I don I t know how Section 805 read at the time in 1993. I believe it currently includes a definition of "restriction."
Q. (BY MR. COLWIN) Okay. So are you aware whether the -- whether Section 805 or any other California statute back in 1993 defined the word "restriction"?
A. I'm not aware of any statute that defined that. I believe there was case law that defined that, but I don't specifically -- what that -- I can't quote you the citation.
Q. As you sit here today, do you know -- can you tell me what the specific definition of the word "restriction" was back in 1993 under California law?
A. No, I can It.
Q. And can you tell me with certainty that there was a definition of the word "restriction" under California law in 1993?
A. No, I can't.
Q. Was there in 1993 a definition of the word "restriction" that had been adopted by the Medical Board of California, that you are aware of?
A. Not that I'm aware of.
Q. With regard to the alleged restriction, you do know that Dr. Menany during the practice review in 1993 was never required to obtain authorization or permission before operating on any patient, true?
MR. HAPPE: Objection. Foundation.
THE WITNESS: It Is my understanding that that's correct, a1though he was required to have an assistant surgeon.
Q. (BY MR. COLWIN) And with regard to your use of the word "requirement," and I believe earlier you referred to the word imposed, Kaiser took the position that this use of an assistant was not imposed on Dr. Mcenany but rather it was something that he voluntarily agreed to, true?
MR, HAPPE: Objection. Misstates.
THE WITNESS: If that was Kaiser's position, then they should have litigated this matter instead of settling it.
MR. COLWIN: I'll move to strike the answer as not being responsive.
THE WITNESS: But I think it is responsive.
Q. (BY MR. COLWIN) But Kaiser's position was -
A. I don't know what Kaiser's position was.
Q. Okay. And there has never been a finding that -
strike that.
You don't know what Kaiser's position was as to whether this was inposed or a voluntary matter on the part of Dr. Mcenany?
A. I know it was not a voluntary matter on the part of Dr. Mcenany. It was a limitation restriction that was imposed by Kaiser that if he was going to do surgeries, then he had to have an assistant surgeon. They didn't tell him he couldn't do surgeries. That's correct. But that is a limitation or a restriction on his ability to practice.
Q. But getting back to this issue of whether the use of an assistant was imposed on him and was a requirment, Kaiser has taken a position that while there is some evidence that the use of an assistant was imposed upon Dr. Mcenany, in fact, it was not imposed upon him, true?
MR. HAPPE: Objection. Misstates. Vague and antibiguous. And, essentially, calls for this witness to speculate as to what Kaiser considered it.
But you can answer, if you can.
THE WITNESS: I'm not sure I can answer that, because if Kaiser believed that this wasn't an imposed restriction that should have been reported, then they -- my belief is that they would not have settled the matter and paid the Medical Board $19,900.
MR. COLWIN: Okay. Move to strike the answer as not being responsive.
Q. (BY MR. COLWIN) Do you know or do you not know whether it was Kaiser's position that the use of an assistant was imposed and required of Dr. Mcenany?
MR. HAPPE: Objection. Asked and answered.
THE WITNESS: I believe I have answered that question, and I -- my response is that if Kaiser did not believe that this was a restriction that was imposed on Dr. Mcenany, they would not have settled this matter and paid the Medical Board $19, 900 .
MR. COLWIN: Again, I move to strike as not being responsive.
Q. (BY MR. COLWIN) That's not my question.
A. I'm not undererstanding your question.
Q. Okay. It has been alleged by the Medical Board that the use of an assistant was a requirement for Dr. Mcenany's surgeries, true?
A. It has been alleged. that that restriction was a requirement, that if he didn't - if he didn't have an assistant, then he couldn't perform surgeries and that should have been reported to the Medical Board. That's the best response I can give you to that.
Q. I understand. '
But, on the other hand, Kaiser has denied, first of all, that there was a restriction, true?
A. That's true.
MR. HAPPE: Objection. Misstates.
The record shows that they entered a general denial of allegations but didnot specifically deny the fact of the restriction.
You can go ahead and answer.
Q. (BY MR.COLWUN) Kaiser denied t:he allegations in the ccnplaint that was made against Madvig and Alvarez, including the fact or the -- including whether there was a restriction, true?
A. 'They denied the allegations in the Imposition of Civil Penalty, yes, that's true.
Q. Okay. Now with regard to this issue of whether Dr. Mcenany was required- to have an assistant for all of his operations, the truth is that from March until the time he left Kaiser Permanente, there were a number of operations he performed without a surgeon as an assistant; isn't that true?
MR. HAPPE: Objection.
THE WITNESS; I don't know.
MR. HAPPE: Foundation.
THE WITNESS: I don't know.
Q. (BY MR. COLWIN) Let's assume that is true. Let's assume that there were three to five cperations that Dr. J Mcenany performed - heart surgery cases -- during that period of time in which he did not have a surgeon as his first assistant. Let's just assume that's true.
Okay?
A. Okay.
Q. That would suggest that he - that there was not a fornal restriction, true?
MR. HAPPE: Objection. Foundation. Assumes facts not in evidence.
You can go ahead and answer, if you can.
THE WITNESS: My response would be that - there are two answers. The answer that there is no -- that there was no restriction or that he violated the restriction that was placed on him by the hospital.
Q. (BY MR. COLWIN) Okay. And let's assume that the hospital administration was aware of the fact and that the other members of the department were aware of the fact that Dr. Mcenany performed a number of surgeries during that period of time in 1993 in which he did nothave a surgeon acting as a first assistant, and that that was not considered to be a violation of the understanding between Dr. Mcenany and administration with regard to how he was to operate that would suggest that there was no formal restriction, true?
MR. HAPPE: Objection. Vague and ambiguous. I don I t know what you mean by a number or operations. Also, assumes facts not in evidence.
You can answer, if you can, sir.
THE WITNESS: Well, somewhere along the way I lost the gist of your question.
Q. (BY MR> COLWIN) It was a long question. Let me withdraw it.
A. Okay.
Q. Try it over.
A. Okay.
Q. Let's assume that administration was aware of the fact that Dr. Mcenany performed a number of surgeries from March until July without the use of a surgeon as a first assistant.
Okay?
A. Okay.
Q. And let' s further assme that there was no complaint or no allegation being rrade by the administration that that somehow violated any agreement, formal or informal, that administration had with Or. Mcenany during that period of time. That would suggest, that is, there was, in fact, not a formal restriction on his ability to practice, true?
MR. HAPPE: Same Objection. Vague and ambiguous with respect to a number of operations. It also assumes facts not in evidence and is an improper hypothetical.
You can answer, if you can, sir.
THE WITNESS: I'm not sure I can answer the question. I think if I take into consideration all of the assumptions that you want me to make, there could be a number of responses: That there was no restriction in place; that the people at Kaiser who knew that he was doing the operations weren't the ones who imposed the restriction.
I don't have enough information to make a conclusion one way or the other, to be honest with you.
Q. (BY MR. COLWIN) Okay. But, as we sit here today, you were not aware of the fact that Dr. Mcenany did perform a number of operations from March until July without the use of a surgeon as a first assistant, true?
MR. HAPPE: Objection. Again, ambiguous. Assumes facts not in evidence.
You can go ahead and answer, if you can.
THE WITNESS: True.
Q. (BY MR. COLWIN) Thank you.
In addition to the fact that Dr. Mcenany was not required to get permission from anyone before performing an operation between March and July 1993, there also was no limitation on his ability to perform any type of operation, true? In other words --
MR. HAPPE: Objection. First of all, I don't understand what you mean by "permission.' He had to have permission of an assistant to be in the room with him. And capable of performing any operation, this witness has already testified that he was not capable of performing any operation unless he had the assistant.
Object on those grounds.
You can answer, if you can.
Q. (BY MR. COLWIN) I'll rephrase the question.
In other words, beteen March of 1993 and July when he left Kaiser Permanente, there was no limitation of any kind on the type of operation that Dr. Mcenany could perform, true?
MR. HAPPE: Objection. Vague and arrbiguous as to
"type of operation." ,
You can go ahead and answer.
Q. (BY MR. COLWIN) Do you know what I mean by that?
A. I'm aware that he had to have an assistant surgeon. I'm not aware that the type of operations were restricted.
Q. Okay. For example, there are relatively simple, uncomplicated heart procedures that can be performed, such as a simple bypass, true?
A. I'm not sure that I would characterize any heart bypass or any operation as simple and uncomplicated, so I can't -- no, that's not true.
Q. well, from -- you are aware that, from a technical standpoint, certain heart operations are more complicated than others , true?
A. True.
Q. For example, there can be a relatively simple, uncomplicated bypass procedure from a technical standpoint, and then there can be very difficult heart procedures involving bypass and valve procedrres in the same operation, true?
MR. HAPPE: Objection. Foundation.
THE WITNESS: There are operations with different degrees of difficulty. I would say that that's true.
Q. (BY MR. CDLWIN) Okay. In this particular case, Dr. Mcenany's case, there was no limitation on his ability to perform the most complicated types of heart surgeries fran a technical perspective, true?
MR. HAPPE: Cbjection. Misstates.
Go ahead.
THE WITNESS: I don't know that to be true or untrue. I do know that he was required to have an assistant surgeon when he was doing any operation. So I don't - I've answered your question.
Q. (BY MR. COLWIN) Okay. If Dr. Mcenany were to testify at the trial of this matter that he could perform -- he was free to perform the nost complicated of heart surgeries, you have no evidence in your file that is contrary to that, true?
MR. HAPPE: Objection. Vague and anbiguous. What do you mean he could "perform the most complicated"? With a - with a -- the assistant?
I don't understand the question, but you can answer, if you can, sir.
THE WITNFSS: Well, if you are asking me if we have any evidence in our file to that, I don't know if there is any evidence one way or the other in the file.
Q. (BY MR. COLWIN) Also, with regard to the type of patient Dr. Mcenany could perform surgery on, you are not aware of any limitation in that regard, are you?
MR.. HAPPE: Objection. Vague and ambiguous to the extent that this witness has already testified that he couldn't do any operation without the assistance of another senior surgeon.
You can go ahead and answer.
Q. (BY MR. COLWIN) For purposes of these questions, I understand that it is your position that Dr. Mcenany was required to have a surgeon as an assistant.
That's not what I'm asking about, and you understand that, don't you?
A. Yes.
Q. Okay. I don't want to play games.
My question is, you are not aware of any limitation on Dr. Mcenany's ability to perform surgery on certain types of patients, true?
A. I am not aware that he had any limitations or restrictions on they type of patients.
Q. Okay. Now, if Kaiser believed -- if representatives of Kaiser believed that there was a restriction that was a result of medical discipline on Dr. Mcenany in 1993, Kaiser was under an obligation to report that within 30 days if the restriction was in existence for 30 days, true?
A. No. Not true. If - not what Kaiser believed. If there was a restriction on Dr. Mcenany's ability to practice medicine, that was reportable to the Medical Board underder Section 805.
Q. And I think earlier you testified that the alleged restriction would have been in place by early March, true?
MR. HAPPE: Objection. Object to the term "alleged."
You can answer, sir.
THE WITNESS: That it was in place, the restriction was in place, sometimee around the first part of March, I believe, is my--testimony.
Q. (BY MR. COLWIN) Okay. So if there was a restriction, that should have been reported by April, early April?
A. If it was in place for more than 30 days, that's correct.
Q. Okay. And Kaiser Permanente did not report that in April, did it?
A. That's correct. They did not.
Q. Did not report it in May.
A. Right.
Q. Did not report it in June?
A. Correct.
Q. And, ultimately, when Kaiser or the representatives of Kaiser reached a settlement with the Medical Board of California, there was no requirement that Kaiser report this alleged restriction at that time, true?
A. True.
Q. In fact, Kaiser Permmente or representatives of Kaiser Perrranente have never filed a report with regard to this alleged restriction, true?
MR. HAPPE: I'm sorry. I can't hear you.
Q. (BY MR. COLWIN) Kaiser Permanente and its representatives have never filed a report with regard to this alleged restriction on Dr. Mcenany, true?
A. True.
Q. And Kaiser Penranente has never filed a disciplinary report of any kind with regard to Dr. Mcenany, true?
MR. HAPPE: Objection. Foundation. Vague and ambiguous. Overbroad.
You can answer, if you can.
THE WITNESS: To the best of my knowledge, they have not.
MR. COLWIN: Okay. Let me double-check.
Okay. That's all I have.
FURTHER EXAMINATION BY MR. HAPPE
Q. Mr. Thornton, I just have a couple of follow-up questions, and I'll try to be very brief.
I'd like you to take a look at Exhibit 4, please.
A. Okay.
Q. Isn't it true, sir, that Exhibit 4 is a memo dated July 3, 1993, with Kaiser Permanente letterhead that identifies the scope of the restriction imposed on Dr. Mcenany's privileges in 1993?
MR. COLWIN: Object to the form.
Go ahead.
THE WITNESS: That's what it appears to be, yes.
Q. (BY MR.. HAPPE) When you said that Kaiser has not admitted to a restriction, essentially, Exhibit 4 is an admission of a restriction on Kaiser Permanente letterhead; is it not?
MR. COLWIN: Objection to the form. Also, requires this gentleman to make a decision as to what was in the minds of individuals who drafted this and whether that is the understanding of representatives from Kaiser who would be responsible for making that decision.
Go ahead.
THE WITNESS: This describes the format for assisting Dr. Mcenany during his practice review. I don't know that I would -- could characterize this as an admission. This is just describing the restrictions that were in place.
Q. (BY MR. HAPPE) In fact, isn't it better than an admission? This is evidence of the restriction; is it not?
MR. COLWlIN: Objection--
(BY MR. HAPPE) Referring to Exhibit 4.
MR. COLWIN: Objection to the form and also foundation.
Go ahead.
THE WITNESS: I believe it is.
Q. (BY MR. HAPPE) Then let's look at Exhibit 3, Mr. Thornton. Exhibit 3 is also evidence from the assistant physician and Chief of Kaiser Permanente, Dr. Douglas Grey, of the fact of the restriction; is it not?
MR. COLWIN; Same objections .
Go ahead.
THE WITNESS: I believe it is.
Q. (BY MR. HAPPE:) And so Exhibits 3 and 4 are better than an admission. In fact, they are evidence of the fact of the restriction; would you agree with that?
MR. COLWIN: Objection to form. Also foundation.
Go ahead.
THE WITNESS: This is part of the evidence that the Medical Board used to establish that there was a restriction on Dr. Mcenany's practice at Kaiser during the period from March -- early March 1993 until sometime -- in July when he resigned. Is it - I can't
remember how you characterize it. Is it better than? I don't know. It's just evidence that there was a restriction.
Q. (BY MR. HAPPE) With regard to -- Mr. Colwin asked you some questions about whtether you reviewed the entire Medical Board file concerning the Alvarez/Madvig and Mcenany matters that we have discussed. Did you need to review the entire files in order to give your testimony here today?
A. No.
Q. And Mr. Colwin has had every opportunity to cross-examine you with respect to the testimony you gave today, hasn't he?
A. I suppose he has.
Q. He cross-examined you for approxinately an hour and a half, I believe; isn't that true?
A. I don't know how long he cross-examined me. It could have been an hour and a half.
Q. Okay. At least an hour; would you agree with that?
A. Yes.
Q. And with the exception of the letter from Dr. Blumberg in April of 1993, all of the documents that are specifically identified in the notification have been identified as exhibits to your deposition, haven't they? Referring to Exhibits 3, 4, 5 and 6.
A. Yes. They have been marked as exhibits.
Q. So the only document that is specifically referenced in the Alvarez/Madvig matter that you did not review for your deposition is the Blumberg letter?
A. I - the Blumberg letter of April, is that what you are referring to?
Q. Yeah. That's the only docurrent that is specifically referenced in the notification that is not identified as an exhibit to your deposition?
A. That's correct.
Q. If Mr. Colwin wanted to cross-examine you on documents that are contained in Dr. Mcenany's file with the Medical Board of California, could Dr. Mcenany give his consent to the release of those docurents?
A. No.
Q. Are there any docurrents that you feel you needed to review in order to give the testimony that you gave today?
A. I believe that the documentts that I did review were sufficient for me to give my testimony today.
Q. Mr. Thornton, I'd like you to assume that there may have been two to three operations that Dr. Mcenany did at Kaiser during the period of the restriction where he did not have the assistance that was required under the restriction, but that there will be evidence at trial that there was no one available to act as his assistant, and that it was cleared okay for Dr. Mcenany to perform those operations without the assistant; if that is true, does that in any way diminish the fact that there was a restriction on Dr. Mcenany's privileges that required reporting in an 805 report?
A. I -- at this point, I don't believe that there would be. If these were operations that were condoned because of their emergency circumstances because there was no assistant available, I don't believe that that would supersede the fact that there was still a restriction in place where the individual had to have an assistant surgeon -- Dr. Mcenany had to have an assistant surgeon.
So, no, I don't believe that that would diminish the belief that there was a restriction in place.
Q. So if a couple of exceptions may have been made, that would not eliminate or reduce -- excuse me, that would not eliminate the fact that there was a restriction?
A. Correct.
Q. Next I need to address some of these questions that Mr. Colwin asked you about whether -- whether Dr. M:cenany needed approval before performing any of his operations.
Isn't it true tP.at Dr. Mcenany really would need approval to perform an operation tmder the restriction 16 because there had to have been available anot.l1er senior 17 staff surgeon?
MR. COmIN: Objection. Foundation.
Go ahead.
THE WITNESS: I guess my response to that question would be that I don't know whether he required approval or not. What I do know is that the requirement was that he have an assistant present when he was performing surgeries.
Q. (BY MR. HAPPE) Well, Dr. Mcenany would not be approved to perform an operation unless he had the proper
assistance; isn't that true?
MR. COLWIN: Foundation. It's also a leading question, Mr. Happe.
Go ahead.
THE WITNESS: True.
Q. (BY MR. HAPPE) And Dr. Mcenany was restricted in the types of operations he could perform during the pericd of timee that the restriction was in place because he couldn't perform any operation unless he was assisted by another senior staff surgeon; isn't that true?
MR. COLWIN: Objection as to foundation and mischaracterization of the facts.
Go ahead.
THE WITNESS: I don't think he was -- I don' t believe that he was restricted to the type of operation he could do as long as there was an assistant with him.
Q. (BY MR. HAPPE) Well, that's what I'm trying to get at. The type of operation -- well, he couldn't do any operation -- heart surgery -- unless he had the assistance that was required under the restriction; isn't that true?
MR. COllilN: Objection. Asked and answered.
Go ahead.
THE WI'INESS: Yes, that's true.
Q. (BY MR.HAPPE) And with regard to the types of patients Dr. Mcenany operated on during the time of the restriction, isn't it true that Dr. Mcenany could not operate on a patient that needed heart surgery unless he had the assistance of another senior staff surgeon as his assistant?
MR. COLWN: Same objection. Go ahead.
THE WITNESS: I think I've already answered that several times. It's true.
Q. (BY MR. HAPPE) Okay. And the fact that no 805 report was ever filed with respect to Dr. Mcenany is because there was the Settlement Agreement that Kaiser entered into where they paid a fine of $19,900 in lieu of the filing; isn't that correct?
A. Not necessarily. And I don't know the reasons why they weren't required to not only pay the penalty but also file an 805 report except that the passage of the had eliminated the need for the filing of the 805 report. We only keep them for a period of three years. So by the time the settlenent had occurred, a period of four years had elapsed. So there was really no need to file one at that time.
Q. The fact that Kaiser didn't file an 805 is what got them in trouble in the first place, correct?
A. Yes.
Q. Mr. Thornton, Dr. Mcenany wasn't required to file any respose to the notification of violation against Mr. Alvarez and Dr. Madvig, was he?
A. No.
Q. You had testified in the very beginning of the cross-examination by Mr. Colwin that he was not free to thoroughly cross-examine you. You don't really know that, do you? I mean, Mr. Colwin has had every opportunity today to cross-examine you; has he not?
MR. COLWIN: Objection to form and foundation.
Go ahead.
THE WITNESS: As I recall, his question was could he cross-examine me on all of the information that was contained in the file. And my response to that is is that no, he couldn't, because I don't have all of that material in front of me.
Q. (BY MR. HAPPE) Okay. But all of those materials do not support - strike that.
Your testimony is not based on every document in the file, correct?
A. Correct.
Q. And there is nothing to preclude Mr. Colwin from thoroughly cross-examining yoou on the testimony that you have given today, correct?
A. Yes.
MR. HAPPE: That's all I have. Thank you very much for your time.
FURTHER EXAMINATlON BY MR. COLWIN
Q. Just a few questions with regard to that issue. As we mentioned earlier, Exhibits 1 and -Exhibits 1 and 2 are documents that you have brought with you from the files, true?
A. Exhibit 1 was provided by Mr. Happe. Exhibit 2 was brought from the file because he didn't have complete copy.
Q. Okay. But --
A. But they are a part of the file, just to preclude the next question.
Q. Okay. But Exhibits 1 and 2 are the only documents that you can legally provide to the public, true?
A. Yes.
Q. And "the public" includes me and Mr. Happe, true?
A. True.
Q. And there are some other documents that have been marked as exhibits today, I think it is 3 through 6 or 7, that Mr. Happe has provided, but in addition to these other exhibits, the Medical Board of California's files on these two matters consists of more than these exhibits in front of us today, true?
A. Yes, true.
Q. And you cannot provide the files to me, other than Exhibits 1 and 2, true?
A. True.
Q. And so there is quite a bit of information, investigative information, in your files that I cannot see and will never be able to see, true?
A. True.
Q. For example, statements or memos or summaries of statements that have been taken by the Medical Board of witnesses, true?
A. True.
Q. And so there may -- there may well be, in fact, documents in your files that I could use in an effort to try to demonstrate that, in fact, there was no restriction, true?
MR. HAPPE: Objection. Foundation. Vague and ambiguous.
You can answer, if you can, sir.
THE WITNESS: I don' t -- I don't believe there is anything in our file that would prove that there were no 2 restrictions in place. We have an obligation as an investigative agency and the Attorney General's office has a moral obligation not to file charges if there is evidence or proof that those charges are not - have no foundation.
So my response is that there is nothing in the file that would prove there are no restrictions in place.
Q. (BY MR. COLWlN) But that may be your position, but I, as the opposing attorney, don't know that, true?
In other words, there may be documents in there that I could use to cross-examine you, true?
A. Yes.
Q. Okay. And because of the requirements of the law, I cannot get those documents, true?
A. True.
MR. COLWIN: Okay. That's all I have.
FURTHER EXAMINATION BY MR. HAPPE
Q. Just one follow-up on that, Mr. Thornton. Do you believe there is any document in the Medical Board of California file that would demonstrate that there was not a restriction on Dr. Mcenany's privileges?
A. No.
MR. HAPPE: Thank you.
(Deposition concluded at 11:07 a.m.)
Q. And so there is quite a bit of information, investigative information, in your files that I cannot see and will never be able to see, true?
A. True.
Q. For example, statements or memos or summaries of statements that have been taken by the Medical Board of witnesses, true?
A. True.
Q. And so there may -- there may well be, in fact, documents in your files that I could use in an effort to try to demonstrate that, in fact, there was no restriction, true?
MR. HAPPE: Objection. Foundation. Vague and ambiguous.
You can answer, if you can, sir.
THE WITNESS: I don' t -- I don't believe there is anything in our file that would prove that there were no 2 restrictions in place. We have an obligation as an investigative agency and the Attorney General's office has a moral obligation not to file charges if there is evidence or proof that those charges are not - have no foundation.
So my response is that there is nothing in the file that would prove there are no restrictions in place.
Q. (BY MR. COLWlN) But that may be your position, but I, as the opposing attorney, don't know that, true?
In other words, there may be documents in there that I could use to cross-examine you, true?
A. Yes.
Q. Okay. And because of the requirements of the law, I cannot get those documents, true?
A. True.
MR. COLWIN: Okay. That's all I have.
FURTHER EXAMINATION BY MR. HAPPE
Q. Just one follow-up on that, Mr. Thornton. Do you believe there is any document in the Medical Board of California file that would demonstrate that there was not a restriction on Dr. Mcenany's privileges?
A. No.
MR. HAPPE: Thank you.
(Deposition concluded at 11:07 a.m.)
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