Deposition by former OH Medical Board executive director Thomas Dilling, Edward A. Patrick MD PhD v....

8/13/2019 Deposition by former OH Medical Board executive director Thomas Dilling, Edward A. Patrick MD PhD v. Cleveland

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Case 05-cv-02791 LW Document 120 Filed 02/07/2008 Pag e 1 of 91

IN THE UNITED STATES DISTRICT COURTNORTHERN DISTRICT OF OHIO

EASTERN DIVISION

EDWARD PATRICKPlaintiff

VS CASE NO. 1:05 CV 2791CLEVELAND SCENE PUBLISHINGLLC et al.

Defendants

Deposition of THOMAS DILLING Witnessherein called by the Plaintiff forcross-examination pursuant to the Rules ofCivil Procedure taken before me Melissa A.Neary a Notary Public and RegisteredProfessional Reporter in and for the State ofOhio at the offices of Ohio State Board ofNursing 17 South High Street Suite 400Columbus Ohio1 : 0 6 p m

on Tuesday April 17


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Case 05 cv 02791 LW Document 120 Filed 02/07/2008 Pag e of 91

IN EX P GE


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Case 1 05 cv 02791 LW Document 120 Filed 02/07/2008 Page of 91

1 APPEARANCESOn behalf of the Plaintiff:

3 Monohan Blankenship

Page 3

N. Jeffrey BlankenshipAttorney at Law7711 Ewing Boulevard, Suite 100P.O. Box 1 5 7Florence, Kentucky 41022-0157andRobbins, Kelly, Patterson TuckerRandy J BlankenshipAttorney at Law7 West Seventh StreetSuite 1400Cincinnati, Ohio

On behalf of the Defendants:Walter HaverfieldKenneth ZirmAttorney at LawThe Tower at Erieview13 1 East Ninth Street, Suite 3500Cleveland, Ohio 44114

On behalf of Thomas Dilling:Ohio Attorney General s OfficeBarbara J. PfeifferAttorney at Law30 East Broad Street26th FloorColumbus, Ohio 43215


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Case 05 cv 02791 LW Document 120 Filed 02/07/2008 Pag e 4 of 91

(Defendants1 Exhibit Numbers 57Page 4

2 through 63 were marked for identification.)

THOMAS DILLINGhaving beenof lawful age, Witness herein,

5 first duly cautioned and sworn, as hereinafter6 certified, was examined and said as follows:

CROSS-EXAMINATION8 Y MR. N.J. BLANKENSHIP:

10 sir?Would you please state your name,

It s Thomas A., middleure.12 initial, Dilling, D I L L I N G

And your counsel is Barbara Pfeiffer,14 and she had something to put on the record.

MS. PFEIFFER: My name is BarbaraI m an assistant attorney general6 Pfeiffer.

17 working for Attorney General Marc Dann.18 today s deposition, I will be representing19 Thomas Dilling in his capacity as the former20 executive director of the State Medical Board21 of Ohio.22 Prior to the beginning of the

I thought it might be helpful just3 questioning,24 for me to share a copy of a statute that I25 think might be relevant to today s proceeding.


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Page 5I appreciateI made a copy for each counsel.

2 having the opportunity to have read the amended3 complaint in the matter.

What I wanted to indicate in the

6 the Medical Practices Act, 4731. I?) (5) that7 basically cloaks the Medical Board8 investigations with confidentiality. In part,9 it read as follows: Information received by10 the Board pursuant to an investigation isI 11 confidential and not subject to discovery in12 any civil action. And the next sentence goes13 on to state, the Board shall conduct all

I 14 investigations and proceedings in a matter that15 protects the confidentiality of patients and16 even persons who file complaints with the17 Board.

I m going to end the reading directly19 from there. I just throw that out there,20 gentlemen, so you are aware of that. I m not2 sure exactly where all the questioning will be22 going. I am going to, if I feel it s23 necessary, object where appropriate and if Tom24 needs to consult with me through the questions,25 we will do so.


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Case 1 05 cv 02791 LW Document 120 Filed 02/07/2008 Page 6 of 91

I appreciate you letting me have this2 opportunity to speak, and now I am prepared to3 sit back and listen.

Mr. Dilling, you told us your name.5 Would you please tell us your title?6 A. Currently it s adjudication7 coordinator.

For?State Board of Nursing.In October of 2004 were you in a

11 different position?12 A. Yes.

What was your position in October of

It was the executive director of the16 State Medical Board.17 Q. And what were your job18 responsibilities as the executive director of19 the State Medical Board?20 A. Well, I oversaw a staff of, geez, 7021 to 80 persons, Board license and disciplines,22 doctors, massage therapists, and other kinds of

allied health providers. We had about 50,00024 licensees, and I m responsible for that.

Okay.

age 6


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In short.Okay. So if a complaint came to you

Well, do you want to go back to high

High school is fine.A. Because we were just talking aboutI m from Cleveland. I went to Cleveland

I graduated in

It was about, I think, May, 2005Okay. Is that when you took the

Page 7123 about a particular health care provider who was

44 under your licensure, it would be your job to :5 turn that over for investigation?6 Yes,7 Would you tell us about your8 educational background, please?

i

;

i1

9 A.1 school?111213 it.

C14 St. Ignatius High School.15 1984 I m sorry 1980, and then I went to16 St. Louis University from 80 to 84; graduated17 with an honors A.B. in political science and a18 political journalism certificate. Then I went19 to Ohio State law school from 84 to 8 7 . And20 then in, I think, around February of 88 is21 when started with the State Medical Board

Q. Okay. So you were with the State23 Medical Board from February of 1988 until when?


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1 position with the Board of Nursing?Yes.Okay.

2 A.3 Q I guess I know you are4 aware that we are here relative to the case of5 Edward Patrick versus Cleveland Scene6 Publishing, et al.?7 Yes.8 Q We are here because you were quoted9 in that article. I m going to be asking you10 some questions about the information that was11 obtained from you in relationship to that12 article. If at any time I ask a question you3 don t understand, let me know. I am more than

14 happy to rephrase the question, okay?15 A. Okay.

Please keep your answers verbal in7 nature. Make sure I finish asking the question8 before you attempt to answer. Is that okay?

That s okay.20 Q If you need to consult with counsel,2 let me know. We will take a break at any time22 you want to and you can consult with counsel23 any time you need to.

Okay.I need to ask if you have spoken with


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1 certain people relative to either this articlePage 9 1

2 or preparation for or investigation of thisHave you ever spoken to a man named

4 Peter Heimlich?M S . PFEIFFER: I m going to object,

6 because if you are asking him if he s ever7 spoken to this person with respect to an8 investigation, that would be a confidential9 matter that he would not be permitted to1 testify to.

Well, first of all, I m just asking12 the question, have you ever spoken to him,13 first? Have you ever spoken to Peter Heimlich?

MS. PFEIFFER: I d like to consult.1 15 Do you want to consult?16 THE WITNESS:17

18

Sure.(An off-the-record discussion was held.)

THE WITNESS: I appreciate the19 question, but on advice of counsel, I really2 can t answer that based on21

Just for the record, then, any22 conversations such as what I asked about, you3 would consider confidential and protected by24 statute?25 MS PFEI FFER : If you re getting at


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any investigative matters.MR. N.J. BLANKENSHIP: Okay.MS. PFEIFFER: And we are not trying

4 to be obstructionist. We really have a clear5 duty to protect the investigation itself, as6 well as the complainant.7 MR. N .J BLANKENSHIP

MS. PFEIFFER: Thank you.I understand.

9 Mr Dilling, let me show you what we1 have marked as Exhibit 4L and just ask you to11 identify that document for the record, please.

A copy of a subpoena.You were served with a subpoena for

14 appearance here today at your deposition,15 correct?16 A. Yes, I was.

Have you ever spoken with akay.18 man named Tom Francis?19 A. Yes.

That wasn t in connection withkay.21 any investigation; it was in connection with an22 article he was writing; is that correct?

I spoke to him based upon, you know,24 him calling me, asking me some questions, of25 which he may have asked questions about a

Page 1 1I


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1 complaint, in which I would have given him2 similar answers to what I m giving you today in3 terms of confidentiality.4 Q. So you would have told him that you5 could not specifically answer questions about a6 specific complaint?

A Correct.You were quoted in an article which

9 he wrote, which is previously marked as Exhibit10 38 in this case, so I m not going to mark it11 again. I can show you a copy if you need to12 look at it to refresh your memory.13 MS PFEIFFER: Is that October 27?

Playing Doctor.15 It probably couldn t hurt me to have16 a copy of it.

Refresh your memory of what it says.18 A. I ve looked at it since I was served19 once or twice, kind of scanned the whole thing,20 and I guess I m familiar with what I think is21 just one time that I m indirectly quoted, quote22 marks around something that was attributed to23 me, and then I kind of recall there being24 another time where they said that I couldn t25 really say anything relative to any

Page 11


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Case 1 05-cv-02791 LW Document 120 Filed 02/07/2008 Page 12 of 91

You were quoted in that

It certainly wasn't something

1 investigations.

3 article by the Cleveland Scene published in4 October of 2004 correct?

A. Depends on what you call a quote.6 guess there were quote marks and a quote was7 attributed to me. I don't know if it's a8 direct quote.9 that I said to Mr. Francis.

Q. Were you are you trying to tell us11 that you were attributed with a quote that you2 did not make?

14 specific question. I hadn't gone that far.Q. Okay. Were you attributed with a ;

16 quote in that article which you did not, in17 fact, make?

.t

21 I'll read the paragraph or sentence here,22 sentence or two. It says, Dilling never23 questioned Peter Heimlich about the Lima case

I.24 or Jewish Hospital residency, but according to25 Heimlich, Dilling said that 'faking a residency i.

I was trying to answer that

Well, yes, I believe so.Tell us what that is.Yeah. I want to there is a


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Case 1 05 cv 02791 LW Document 120 Filed 02/07/2008 Page 13 of 91Page 13

1 was no big deal,' and the Board was more2 concerned with chasing doctors who wrote

45 and saying,

3 illegal prescriptions.When I read this, I'm looking at it

you know, in terms of Dilling6 never questioned, that wasn't me speaking to7 Francis, necessarily. It's possible that8 Francis asked me something specific about it,9 but I would have at that point said, you know,

10 I can't get into, you know, anything involving11 any particular investigation.2 Q. Would you have said anything like13 faking residency was no big deal?

Well, I can tell you that if you let15 me answer this way.16 Q. Okay.

Going with the law here, in my 2018 years with the Board, whatever it was, 1819 years, '88 to 95.

MS. PFEIFFER:2 THE WITNESS: 2005, right, I'm sorry.22 I never said faking a residency was no big23 deal, you know, t anyone. I can't imagine24 when a situation in which I would have said25 that. You know, since I've been subpoenaed,


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1 I ve kind of wracked my brain and tried to2 think, you know, could I have said it in some3 other context where it could be misconstrued.4 Certainly in this specific context,

Page 14

5 and I just can t recall ever saying anything6 like that, you know, at any point in time in my7 career. It kind of counters what is fact with8 the Medical Board, that we take discipline9 actions every year based upon false statements10 and we certainly have there are cases where11 somebody has done something wrong or made false12 statements in terms of, you know, an13 application, but, you know, the language that s14 used is, let s say15 I m chuting off. You guys are here16 to try to understand what I was saying here, or17 not saying, faking a residency was no big deal18 at that time. I don t remember saying that to19 anyone at any point in time. I can t get20 specific to any particular person.2 Q Okay. Well, Mr. Francis in this22 article says that you said that to Peter3 Heimlich, correct?

2 A.25 said that.

He says that according to Heimlich, I


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Q. Right.2 A. And puts quotes around it like, yeah,3 definitely I said it.

Q. Right. It s in quotation marks as if5 it s a direct quote from you, isn t it?6 A. That s the way I read it.

Q. Okay. Now, let me ask you this: Do8 you remember how many times you talked to9 Mr. Francis before this article was written?

Before this article was written?Yes, sir.I believe I just talked to him one

13 time,14 Do you remember how long that15 conversation took place?

You know, it was a while back and17 it s hard for me to talk to anybody for just a18 minute or two, but I don t think it was a long9 one. Probably, you know, I don t know, my best20 guess would be anywhere from ten to twenty21 minutes.

Okay. Did you talk to Mr. Francis23 subsequent to the publication of that article?24 A. You know, I think that I did, and as25 best that I can recall, yo know, I was aware


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Page 161 of this article, you know, when it came out,2 but I can t tell you how I became aware of it,3 quite frankly. I may have asked somebody - - I4 may have asked him to send me a. copy when it

came out.However it was that I came about, you

7 know, seeing the article, I remember reading8 the headline and the context within which9 things were placed and which the context of The10 Board and their operations were placed and not11 being too happy about it. And my recollection12 is that I did phone him and talk to him and13 say, you know, we hadn t talked about this14 quote or, you know, indirect quote and so15 forth.

Did he never ask you to confirm or17 disaffirm - - -18 A And I wasn t too happy, expressed my

That9 displeasure at the whole of the article.20 was basically the conversation that I think21 probably would have on1.y lasted for five22 minutes.

Did you have a particular4 characterization for the article that you had

I

25 conveyed to Mr. Francis?I

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Page 17Well, I was I would say I was

2 disappointed, felt that it was inaccurate,3 certainly, in terms of inaccurate as to how the4 Board approaches their business, kind of like5 what I was trying to impart, maybe not being6 all that articulate, but saying that, you know,7 that s not this Board, you know, in terms of8 the Board taking interest in somebody making9 false statements in any type of context.10 That s not their record. And that s kind of my11 recollection, was in the space of that five12 minutes, I tried to make that point.

Q At any time during the conversation14 you had with Mr. Francis prior to the article15 being published, ie he ask you to confirm or16 deny that you had made the quoted remark to17 Mr. Heimlich ?18 A. No.

Q Okay. Did he tell you that he20 intended to publish that statement?2 A. No.

Q In your conversations subsequent to23 the publication of the article, did you contact24 Mr. Francis because you were upset about the5 publication of the article?


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Yeah. It was probably as much an2 emotional reaction as anything. At the same3 time, I think I was contemplating the4 possibility of writing something in response,5 you know, to this article, but obviously by6 some of the statements here, I think that it7 becomes very difficult to do something like8 that. And I was also oft reminded when I was9 at the Board to not get into frays such as1 those with people who I feel or staff feels has11 treated us poorly or unfairly.12 Q. Okay.

And so there was a judgment made at14 that point not to go any further with that.

I l (1 In fact, if you had received a16 complaint from someone about a physician faking17 a residency, what would be the proper protocol18 that the Board would have followed?

Well, first off, I would say that I ml92 not an investigator myself you know. That21 wasn t part of my role at the Board. Did I get22 involved in various complaints? Sure. I mean,23 I w s aware of things and, at various times,

I 24 dependent upon the nature of the complaint or :25 what was happening, I may talk to a number ofI

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1 different people involved in the complaint or2 the investigation.3 So, you know, if you want to talk4 generally about sonlebody who made a false5 statement on an application or a residency or6 something that was possibly grounds for7 disciplinary action by the Board, that would be8 filed as a complaint and investigated,9 following, you know, an initial triage as to1 verify whether or not it s something that we11 could legally investigate.12 Okay. The article further states, I13 believe, that you had quit. responding you14 cut off responses with Mr. Heimlich. Did you15 ever quit responding to Mr. Heimlich or16 Mr. Francis?17 A Well, I think that that you are18 asking two different questions.

Okay.2 Y ou are asking I mean, you are21 asking of two different people and you can ask22 of five or ten different people and you are23 kind of roundabout getting at whether I ve ever24 had a conversation with, you know, those25 people. You can extend it to illogical

Page 19i


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1 extremes. So you ask me about, you know, Tom2 Francis, he s a reporter, you know, they wrote3 an article, I m quoted in this article;4 obviously talked to him.5 Q. Right.

In that respect, I don t see a7 problem in me telling you, yes, I talked to Tom8 Francis.

Okay .

r .* tPage 20[IIII.I:II,Ii

10 A. But people that aren t - - I don t :I.11 know how you - - I m trying to tell you that

I 12 people that aren t explicitly identifiable as ;3 me talking to them in some other context, I :r14 just feel like, certainly in this matter, that

15 that s something I can t go into.16 Q J understand. Let me ask you this17 question: In your experience as executive1 8 director of the Ohio Board, did the Ohio Board

i 19 ever take action against any physician fort20 falsifying crederltizls?

.Yes. an I clarify an answer to one

i 22 of my earlier questions? Just so you haveLet n ask you this question: Would

I 24 that be public record?5 Oh, yes, j7 u can - - our disciplines .I :f;

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Case 1 05-cv-02791 LW Document 120 Filed 02/07/2008 Page 21 of 911 *- Page 21

1 are out on the websife. You can o to2 n e w s l e t t e r s a n d t h e y would have listings, and3 you can ask the Board and they would give you4 listings of all the years

Q So any disciplinary action taken6 against a physician for falsifying a record7 would be accessible to the public?

9 Q10 something?

YesGo ahead. You wanted to explain

1 wan ted t o s y in t e r ~ n sof what I12 did in being involved in investigations and so13 forth, I have no authority to close complaints14 under the statute as t h e supervising members of15 t h e Board d o .1 6 general.:^ in terms of cutting off17 communications w i t h people involved in18 complaints and so forth, you know, it couldn t19 be you know I couldn t go and shut down a20 complaint and close it and theE end some type

1 2 of relationship that way.2 2 Q O k a y In your conversations with Tom1 23 Francis, did he ask you at any time if anyi 24 action had ever been t a k e n b y t h e Ohio Medical25 Board against Dr Patrick?t


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2 could.3 Q

Gosh, he may have. Yeah, very well

Would y u have answered that question4 or would that have been something5 A. No, that would have been public6 record if we had taken disciplinary action.

Q In your conversation with Torn8 Francis, after the article was published, did9 you have any conversat.ion excuse me, did the

11 A .12 recall.

10 issue of deadlines come up?Well, again, this is as best I can

You know, I m under oath and it s my13 recollection that I called and talked to him14 and did this. I will admit to it being, you15 know, three yea r s ago or whatever and

Sure17 A. being somewhat sketchy, and I8 don t have any type of records that I can go19 back to to verify personally. But my20 recollection is that I did speak to him and. did21 question him about not having an opportunity22 to, you know, respond to things that he is23 saying, or sonl on is saying that I said.2 Q In respocse, did he tell you he had a25 deadline to meet?

Page 22

i:I


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And I m sorry. And yes, my2 recollection was his response to me was3 something a k i r ~to, you know, there s a lot in4 this article, I had deadlines to meet.5 couldn t get back to you, kind of I recall him6 as being somewhat apologetic in response, but7 not giving me very much answer in terms of, you8 know, the whole of the artic1.e and what9 direction I seemed to think it was taking in10 terms of headlines and so forth.

I l Okay. Let me show you what has beenThis appears to be an12 marked as Exhibit 4M.I 13 article published by the Cleveland Scene on May

1 14 4, 2005, by reporter Chris Maag.I

7 article,I believe you are also quoted in this

bring Do y o u8 remember talking to Chris Maag about this9 article?20 A. I k n ~ w f the article. I ve read it21 before. I haven t read it for some time, and I

II 22 believe t h a t Mr. Maag was present outside a23 legislative hearing at the time and that he

1 24 talked to me briefly at t h a t time. Whether he

Page 23

5 t a l k e d to me ahou t it o the phone or n o t 1:I 1:. - . . - . .- ,t. r r e p . t r m -tlW i.r.:-r K-*IZ'-, b r c C J - 1 6 , ;% s l i - - . i . C l t - ~ ~ r ~ ~


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1 can t recall, b u t my inclination i s to think I2 didn t talk t him over t h e phone, t h a t just3 talked t o him that one time when we were here.4 But it s p o s s i b l e talked t o him on t h e phone5 too.6 In your conversation with Tom Francis7 prior tc the publication of the article, do you8 recall telling9 A. Back to Tom Francis?

YesOkay.Do you recali telling Mr. Francis any

13 specifics about. the investigation process,14 about the Board processes, or anything of t h a t15 sort t h a t are not published in his article?i

You know, I kind of do. You know,1 7 again, as best as can recreate a18 conversation, and it s not all t h a t great of an19 ability, as Lo all that is asked, but I t h i n k

1 2 t h a t there wa i sane discussion in generalitiesi 2 how the Board goes about its operations, you22 know, what they are a l lowed t o do and s o forth.2 3 And t h e r e may have been some discussion24 generally, like you know, in terms of what25 would t h e Board do i n t h i s or this type ofi


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1 situation.2 But can t honestly recall whether3 or not that wzs a long conversation or I m just4 melding other conversations with other5 reporters --6 2 Oka y

at that time and over the years.8 Do you recall whether the9 conversation with Tom Francis addressed the

11 credentials b y a p h y s i c i a n ?I1 2 n s t can t recall.

Okay. Can you do you know whether14 or not the public record would reflect whether15 or not the Board ever took any disciplinaryi 16 action against Dr. Edward Patrick?

Ii 17 A. O k a y I m sorry. I wasn t listening8 to your question because I was reading19 something in here that kind of goes back to the

Page 2 5 :\

I

1 2 past question.Io ahead and respond to the past

22 question and 1 will ask my question agzin.MR ZIRI 4 :

1 24 you responding to?Which past question are

THE: WITNESS About ny conversations


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[ w i t h , o r what M r . what M r . F r a n c i s may have2 asked m e a h o c t g e n e r a l l y a n d a b ou t t h e3 pr oces s es and s o forth. I n t h e a r t i c l e ,4 b e c a u s e I saw m y name here, i t s a y s , Dilling5 d i d s a y t h a t i n 1976 t h e y ea r t h a t P a t r i c k6 s h o u l d have co r n ~ le t ec lh i s r e s i d e n c y ,7 p o s t- g r a dn a t e t r a i n i n g was n o t a r e q u i r e m e n t

I 8 f o r l i c e n s u r e . And that c e r t a i n l y i s9 s o m e t h i n g that I r e c a l l saying. I ve said i t

1 t o a couple p e o p l e , you know, who have a sked m eq u e s t i o n s , so it s v e r y l i k e l y , you know, i f h e

1 1 2 s a i d t h a t I s a i d t or. this end, I would s a y ,I 13 yeah , I mus t have had s o m e c o n v e r s a t i o n w i t h

i 1 4 h im a long t h o s e l i n e s . T h a t h e l p s m e a little15 b i t w i t h my menory, t h a t , w e l l okay , yeah , I1 6 think w e p r o b a b l y d i d t a l k f o r a few minutes17 about that..8 Does t h a t s ta te me nt . t r i g g e r your

19 memory a s to a n y t h i n g e l s e y ou may have t o l di/ 20 M r . F r a n c i s ?121 No b u t s e e that's general

q u e s t i a n a b o u t w h a t the laws were a t a s p e c i f i ciI 23 p e r i o d o f t ir n e, a n d I w ~ u l d ave t r i e d t oI24 a n s w e r t h a t for a n y b o d y .

Then l e t m e go back t o t h e

IPage 2 6 1.


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Page 27question I asked a few minutes ago.

I apologize.That s okay. The question is, do you

4 know if the public record, non-confidential5 information, reflects whether the Ohio Medical6 Board ever took any corrective or disciplinary

10 reflect whether they ever did take any actionagainst Dr. Patrick?

2

7 action against Dr. Edward Patrick?8 A . Yes, that s public record.

Do you know if the public records

As of the time I left the Board,3 yeah, I know. I haven t followed him since.

What was the case as of the time you1 5 left the Board?

At the time that I left the Board,7 there had been no disciplinary action ever18 taken against Dr Patrick. That is something19 that is verifiable as current status on the2 Board s website.

Okay.MR. N.J. BLANKENSHIP:

23 further questions, Mr. Dilling.

25 BY MR. ZIRM:CROSS-EXAMINATION

Thank you


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Q Mr. Dilling, I get a chance to ask2 you some questions as well.3 A. No problem. That s why we are here.

Q. We met briefly. My name is Ken Zirm.5 I represent the Cleveland Scene and Tom Francis6 in the lawsuit filed against them by Dr.Patrick. Let me ask you what titles you held

8 at the Ohio State Medical Board.9 A Okay. I started, and I believe my

What did that job entail?It s a lot like what I do today.

So a big part of my job was then to

Page 28

1 0 title was enforcement coordinator.111 213 There are some a lot of similarities, but1 4 there are some differences too. But it s15 investigating I shouldn t say investigating.16 You re an attorney for the Board. There s been17 an investigation. At that time I was one of18 only two enforcement coordinators and we were19 about half the size of the Board today, if2 0 that.212 2 work with the staff to present the secretary2 3 and supervising member with an analysis, a2 4 legal analysis of where we were in terms of25 being able to prove or not prove a disciplinary

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1 case against a licensee.2 Q How long did you hold that position?

I was in that position until about

Okay.And with that position I would say

7 that because it was such a small you know8 place and that obviously we had other duties9 and so forth I was given almost from the start

* .Page 29

1

1 a lot of I guess leeway in terms of doing11 other things that you know the Board needed1 2 help on.

i

For example one would be acting as14 kind of a liaison with the state government1 5 and by necessity I probably from the beginning16 talked to reporters and so forth. We had17 somebody on Board that did more of that but18 certainly when you had a specific case you1 9 ended up having to talk with the press you20 know at times because you had you know some2 information that might be relevant.

And in 995 I believe that they made23 me a government affairs officer or some title24 like that and while I still did some I5 believe enforcement work at that time the


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idea was to push me more in the direction of2 working with committees, drafting rules, you

Page 30

3 know, things like that. Most of my time was4 devoted to that.5 And then in, oh, I think like a year6 or two prior to me becoming director in 2000, I7 was made public and government affairs officer.8 That was a supervisory position, because until9 that time I had not had direct supervisory10 experience, and I believe my role there was to

supervise, geez, I think some executive staff12 people. You know, I had some supervisory staff3 role, but it wasn t for that long a time. And4 then the director at that time was Ray5 Baumgardner and he retired, and so I had6 applied for the job and had the job from 2000

17 until I left in May of 2005, I believe.18 Q And as executive director, generally19 what is your role, if any, in the investigation20 of the complaint against a physician?2 A Little or none in terms of direct22 involvement. I think that if you are to go23 back and talk to certain staff, a criticism24 would be that I was involved in a lot of25 different, you know, things and so I would ask


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Page 311 questions, and at the same time we were even2 smaller than we are today. They have gotten,3 you know, more staff in the past two years4 since I ve left, and so it became necessary at5 times to talk to complainants, talk to or6 review complaints, you know, in terms of what7 others had reviewed, and perhaps give my view8 to the secretary and supervising member, and to9 staff. It wasn t a regular part of my job

1 didn t take up much time in terms of you11 know, I didn t get involved in that many cases,12 but there were occasions which I did. The same13 with talking to the press or even picking up14 the phone and talking to anybody; I was a15 pretty accessible person in terms of, you know,16 I would give anybody my telephone number, my17 direct line, and people would call. And when18 you called and you had a question, I tried to19 answer it for you, you know, trying to give you2 a little bit of feel.

Sure. When you were executive22 director, how big was the investigative staff23 of the State Medical Board?24 When I was the director, I think we25 were at about 2 investigators, and they would

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Page 321 be located throughout the state, worked for the2 most part out of their home was their3 office. We had two investigator supervisors,4 and then we had an assistant director who was5 over, you know, those two investigators.6 Q I m sorry. Two supervisors?

Two investigator supervisors, one for8 the north and one for the south region, and9 then there was an assistant director who was10 accountable for those persons. And then there

was an assistant executive director who was1 2 accountable to all of that chain going down.

And would every complaint be assigned14 to somebody in the investigative staff?15 A Not every complaint. The Board got,16 geez, when I left, probably more than 3,00017 complaints a year. It had steadily,18 incrementally grew, and there s a triage that19 occurred through a staff attorney, for the most20 part. There were certain protocols, certain2 1 things went certain places, so they wouldn t2 2 all go out for an investigator to actually go23 out and investigate a case. You know, it24 depended upon the nature of that complaint.25 Did you ever participate in the


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1 triage, the initial triage of a complaint that2 came in while you were executive director?3 Participate would be is kind of a4 broad word. I m sure that I did participate in5 some way in some complaints, if it was an6 especially noteworthy complaint in terms of the7 egregiousness of the complaint or the notoriety8 that perhaps a complaint had already received9 before it got to our door. Somebody might have

1 then said, hey, Tom, this just came in, what doOr I would say, let s move1 you think of this?

12 this. Or I would get a phone call from13 somebody and say, hey, we need to move on such14 and such a complaint. So something of that15 sort, but not something where I would regularly16 review something as it came through.17 Q And I take it, I mean, you started18 out in enforcement. That s kind of what you19 did initially, correct, triage work on these20 complaints?

Yes, sure, in some way, shape, or22 form, right.23 Q Now, if you had the occasion to talk24 to a complainant or maybe even talk to someone25 that had knowledge about a complaint, would


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Page 34you, as a general matter, produce notes, memos,

2 something that would end up in the file3 regarding your conversations with people?

I would say the answer is5 generally, I would say yes. It would probably6 depend on the nature of that information, you7 know, how long the call was, what they were8 imparting, whether it was just somebody who is9 saying the same thing that they may have to an

1 0 investigator and they were just had somedispleasure that the complaint wasn t going as

1 2 fast as it should be and so forth. If I felt3 like all that information was already a part of

14 the record, then I probably wouldn t put all15 that much, or see all that much urgency to say,6 hey, talked to so-and-so and such and such.7 Would I today? Probably so. It seems like we18 have gone to more recordkeeping. But1 9 generally, you know, I would say I would, yeah.

2 Q What is the record retention policy21 of the Medical Board on investigative files?2 A You know, they have a records2 3 retention schedule and, you know, I would have24 to rely on that as the answer to that question.25 Q Do you know what it is, as you sit

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Page 351 here today?

No. Today, you know, I couldn t tell3 you. I would say that obviously the section4 that we talked about before shields those5 investigations, even when they are closed, or6 at least that was7 Q. I knew we were going to get to it. I8 wanted to know how long it exists.

9 A. I would say that our records10 retention policy keeps things longer than, say,

the Nursing Board does. I m confident in that.12 MS. PFEIFFER: When you say uour,w13 you are talking about the Medical Board?

THE WITNESS: That s right, the15 Medical Board. You know, again, I ve never6 quite left there fully. I tried.

17 Q I guess, then, that makes me curious,18 what is the Nursing Board s retention policy?19 You know, that s a good question,20 because we ve had some discussions recently21 about, you know, just what that was, but, you22 know, my understanding is that when they enter23 into an agreement that, say, settles a case and24 it ends up in disciplinary action, that they25 are permitted by the records retention schedule


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Page 36to delete that information, get rid of that

2 information, pretty much in its entirety.3 Now, I would say that even with that,4 that doesn t mean that you always go and, you5 know, get everything. There had to be some6 judgments, I think, being made as to what7 should be retained just in case somebody8 doesn t abide by the agreement, the terms of9 that, something else comes up and that, and so10 we ve had some discussions along those lines.11 Q Okay,

Whereas I don t see that was all that13 much of a pressing problem over at the Medical14 Board. That was my recollection.

Mr. Blankenship asked you some6 questions about what the public record shows as17 far as physician discipline and, for instance,18 if Dr. Patrick had ever been disciplined by the

That would be a9 Ohio State Medical Board,20 matter of public record?

Yes,2 Q What more would be in the public23 record, other than the fact that a what24 facts about a physician s disciplinary action25 would be public record?


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Page 7Sure. If there was a notice letter

2 sent to initiate the 119 hearing process; oncethat s issued, that becomes a public record.

4 Then a lot of the stuff that happens after that5 is public record; if you go to a hearing, the6 hearing transcript. Obviously when you throw7 patient records into the mix, there s8 confidentiality provisions that protect that.9 The identity of the complainant is protected,10 you know, within that process. But you get11 pretty much an idea as it goes through. Some12 cases are settled, you know, as well so you13 don t have that.14 Now, when an action is taken by the15 Board, that order is public record. There s a16 report recommendation that s drafted by the17 hearing examiner, public record. The Board18 debates the discipline in open session, which19 they technically do not have to do that under2 the law, and they made a change to start doing

I think, you1 that sometime in the mid 80s.22 know, around 87, I think that they started23 doing that, you know.

In a matter of contrast, the Nursing25 Board does not deliberate in public session.


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Page 38So what you will hear is this report and

2 recommendation, and they will, you know, be3 discussing why they are making their choice.4 It s almost like being in a room listening to a

So all that sjury, you know, that debates.6 public record.

The notice letter, does that, as the8 name would imply, notify the physician of the9 nature of the charges against him

Yes.or her?

And the opportunity to be heard on3 those charges.

Why did you leave the Medical Board?Well, there s probably a lot of

16 personal reasons, you know, just in terms of7 who I am and where I was at the time, but I8 really loved the Medical Board. I loved9 working for them. But my wife and I, we had a

2 child in June of 2004, and I announced to the21 Board about October, I think, that I wanted to22 leave. I talked to one or two of the Board23 members, you know, about it, just prior, you24 know, to doing that. But if you re a parent,25 you know it is very demanding work, and my wife


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1 and had a number of miscarriages, and I just2 wanted to be with him.3 Q. Okay. Let me show you a couple4 documents. One has been marked Exhibit 57.5 MR. ZIRM: I tried to pick up where6 we left off, Jeff

MR. N.J. BLANKENSHIP: Okay.Just take a moment to review this

9 document for me.Okay.Have you ever seen this document

12 before?No.It is Mr. Whitehouse. Was he your

15 immediate successor as executive director?A Yes.Q. It appears to be a letter to Dr.

18 Patrick from Mr. Whitehouse indicating that19 it s a response to his letter requesting2 verification that post-graduate medical21 training was not required for physician22 licensure during the years 1975 and 1976,23 correct?

Yes.And you agree with that statement?


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Page 40As far as I recall yeah.

2 understanding of the law yes.3 Q Is it your understanding that the law4 has changed in that regard to present day?5 post-graduate medical training now a6 requirement for physician licensure?

8 Q9 changed?

Yeah.Do you have any idea when that

You know it was in the earlyDo you want to know why it changed?

Sure.21 3 A The Board used to approve foreign14 medical schools you know like it was okay5 you can be licensed under this school and that6 and disapprove them.7 There was a I believe federal8 lawsuit which the Board was a named defendant9 you know nationally going after the Boards for

20 discriminating against the foreign medical2 schools and so forth and so the legislature22 looked into this question and they changed the23 law so that kind of coupled with a couple24 paths to licensure supposedly were equivalent25 and I believe are but to the best of their


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Page 411 ability, without the Board, you know, getting2 the Board out of the approval process of3 schools, so that today if you are a graduate4 from an ACGME accredited school, which are5 generally United States schools and Canada, you6 need to have one year of post-graduate7 training.8 And if you are from a non-ACGME9 accredited school, then you need two years, or

1 through the second year level. Not just two11 years, you have to go through the second year12 level.

And also with that comes you have to14 pass the exam, the USMLE and then, of course,15 there are all kinds of grandfather provisions16 and so forth. And you have to graduate from17 one of those schools too. You have to show18 that.19

2 three prongs.But that s probably pretty much the

That was what was changed. They21 call things different things too, like I m22 using the word post-graduate training. It used23 to be like you talked about an internship24 first year out and residencies.

Right. Is the Ohio State Medical


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1 Board at all involved in the accreditation of2 the post-graduate training programs?

I willeah. Pretty broad question.4 try to give you the short answer. Not5 directly. You know the statute deems that if

Butthey are you know you do certain things.7 if they are a member of the Federation of State8 Medical Boards who does have some role you

SO in essence

I see. And generally though in the

Page 42

9 know in working with those type of bodies you10 know towards the formation of their policies

and so forth almost as a lobbying or advocate12 on behalf of all those Boards.13 the Boards individual Board can have some14 impact upon those systems and how things work15 out but it has to be done through the politics16 at those levels.178 U S today the accrediting organization is the9 ACGME?

2021 Q Is that also the major accrediting22 organization for the post-graduate training23 programs?24 A Yes. In fact actually you were25 asking me two different things and I was kind

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1 of putting them all together in my mind here.2 I m trying to remember all the different3 acronyms. The ACGME is Accreditation Council4 for Graduate Medical Education, so, therefore,5 I thought that they were for the schools. Now6 maybe I m picking up the different -- the wrong7 one. Maybe they are the residency. It s been8 a couple years and now I m out and I m trying

MR. ZIRM: I have an extra.

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14 you have is more than what I have.A. Well, I don t know. I don t want to

16 give you bad information.Q. Handing you what s been marked as

18 Defendant s Exhibit 58 would you take a moment19 to look at this?

MS PFEIFFER: Thanks.THE WITNESS: See, they are talking

23 in this letter about the ACGME, post-graduate24 and residency program. I m pretty sure that is25 the case. I m trying to remember when I give

Page 43

9 to think of the, you know, who the different10 because it is two different bodies. I m11 trying I m sorry that I m mixing it up, and12 I can t go back there right now.

Q. That s all right. Any knowledge that


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1 you those two differentiations between U S and2 Canada schools and the foreign schools, all of3 that was correct of what I said. But I4 probably said ACGME for that, and I m trying to5 remember the correct acronym.6 Q. Okay.

Yeah.Have you had a chance to review this?

9 I guess the first question, that s a memo datedso this is after you left the

It s written by Kay Rieve. Is that

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Page 44

1 June 6, 2 0 0 611 State Medical Board, correct?12 A. Yes.13 Q14 how to151 6 Q Kay Rieve.17 the Medical Board?1819 Q And it is addressing the issue of2 0 whether apparently whether a training21 certificate was required in Ohio to take part2 2 in a residency or internship or fellowship?23 A. Uh-huh.2425 subject?

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You worked with Kay at

Do you have any knowledge about that


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Page 45Yeah. Yes, do.

2 Q. And basically this memo is saying3 that prior to since July 1st of 1999, in4 Ohio, residents or interns needed to have a5 training certificate6 A. Yes.

to participate in a residency or8 internship or fellowship?9 A. Correct.

It s saying prior to July 1 1999,11 that was not required?1 2 A. Not mandatory, right, not required.

That s your understanding as well?Yes.Are you aware that at some time prior

1 6 in Ohio s history, there were training1 7 certificates called temporary certificates,1 8 that there was a name change?

Yes, believe so.20 Q. Okay. And what s your understanding2 1 about when you say that they weren t2 2 mandatory prior to 1999, what s your2 3 understanding as to what, if anything, was24 required for someone in Ohio to participate in25 a residency program?


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Page 46Okay. You will understand from, you

2 know, my history with the Board and so forth, I3 was involved in a lot of the legislative4 proceedings and so forth

Right, sure.that went into this and the

Board s work and that.8 Q Because in July of 99, when the law9 changed, that s about the time you had the10 governmental affairs position?11 A. Right. Again, I have always, except1 2 when I was the director and somebody else did1 3 that work, but I still was involved, but there1 4 used to be a program, I can t tell you what it1 5 dates back to, but this temporary16 certificate

Yes.it was almost treated as a, you

The statutes allowed9 know, a voluntary thing.

20 for it. I can t tell you exactly how that2 1 statute was worded, but it was interpreted by2 2 someone, be that the Board, AG office,23 combination, the Board itself, you know, that24 it was treated as a voluntary thing, and some2 5 programs would tell their students, go get; ~ L ~ ~ ~ - ~ ~ ~ * J ~ ~ ~ U ~ ~ ~ ~ ~ : P ~ ~ ~ ~ ~ . L L L ~ ~ & T X ? ~ ~ . ~ . I ~ ~ - ~ ~ . . : ~ L ~ . I U ~ ~ . ~ I L ~ ~ I ~ ~ ~ H H H ~ J ~ I ~ . I U L U U U ~ ~ L ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~d'.z-:..+1t> 2i+s.:, ...~ 1~L.L. ~ : . ~ ~ I I ~ ~ . J ~ ~ : ~ ~ ~ ~ ~ . , L ~ . ~ I ~ I ~ ~ ~ . ~ . L.-,- . ~ & s ~ ~ x ~ ~ ~ l . ~ . . . ~ - ~ ~ ~ ~ ~ : . ~ ~ ~ , . J ~


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1 these.2 Now, will tell you that when you3 applied and gave your name and what program you4 were in, that s about all it was, really. I5 mean, I m giving you generalities, but they6 basically put your name next to a number and7 issued you that temp. NOW I m sure

The Medical Board did?The Medical Board did. There may

10 have been some type of cursory review for those11 certificates in terms of, you know, does this12 really look like this came from Ohio State or13 some other program? We know who is running14 different programs, who did it, you know, over15 time, that type of thing. There had to have16 been something like that, because you are not17 just handing out temporary certificates.18 don t want to be too flip about, you know, what19 went into it, but it s nowhere near what goes2 into the process, which is application oriented21 and so forth, by individuals, that occurs post22 July of 1999, where everybody had to do it.23 Q So your understanding is that prior24 to July, 1999, it was pretty much up to the25 program as to whether they were going to


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4 Board?

Page 481 require a temporary certificate?

Right.And not up to the Ohio State Medical

Right.The second part of Ms. Rieve s memo

7 indicates that the Board is not in a position8 to individually verify expired training9 certificates. Is that your understanding as10 well?

Yeah.1 A I couldn t tell you exactly12 whatnot in a position, you know, whether or not3 records retention is we get rid of things or4 whatever, but yeah, I will go by what she says.

Do you have any knowledge as to what6 the procedure was as to retaining training7 certificates issued by the Board?

No, I m sorry, I can t recall.19 Q Since July of 1999, would it be a20 potentially a potential violation of Medical21 Board rules and regulations to participate in a22 residency program without a training23 certificate?24 Yes.

Are you familiar with any


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Case 1 05 cv 02791 LW Document 120 Filed 02/07/2008 Page 49 of 91I Page 49

disciplinary procedures that have been2 instituted for that purpose, based on that?3 A. To the best of my recollection, yes,4 we have the Board has taken disciplinary5 actions for persons practicing without that6 certificate, and those would be public record,7 and that would be pretty easy to do a search,8 you know, of that.9 Q Okay. We have issued the10 defendants have issued a subpoena on the Ohio

State Medical Board in connection with this12 case. I am going to hand you Exhibit 59 and1 3 represent to you this is the packet of4 materials we received in response to that15 subpoena. I won t necessarily have you review6 the whole packet, but I d like to ask you a

1 7 couple questions about some specific documents18 in here. If you would just turn to the second9 page of this exhibit, the title is Application20 for Endorsement of a Medical License by the21 State Medical Board. Can you tell me what22 endorsement licensure is?2 A. That would be persons licensed in24 another state and they endorse their license,25 you know, here. It was, you know, one of those

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The statute says if somebody hasrequirements.2 been licensed in another state, you need to3 prove this, this, and this, and you would go4 through perhaps a more you might have to5 jump through a couple more hoops if you didn t6 have that license previously.

guess that was going to be my next8 question. Is it fair to say that the9 requirements for licensure in Ohio were a10 little less stringent for somebody that already11 had a license from another state?12 A. Yes. I think there was deference1 3 granted to the other state having looked and14 verified certain things so that you weren t15 re-duplicating everything each and every time

That s a6 somebody moved from state to state.1 7 pretty common licensure device.18 Q And this is actually a form, an19 application filled out by Edward A. Patrick,2 0 and if you look on the first page, there s2 1 between the fifth and sixth items, do you see

Page 50

22 where it says, Ohio State Medical Board issued2 3 Certificate of Preliminary Education Number,24 and then it s got a number and a date?


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Page 51What is the Certificate of

2 Preliminary Education? Maybe that s a dated3 term.

I was going to say, this document,5 think, pre-dates even me being at the Medical6 Board.

Q8 A.9 context.

Is that a term you are familiar with)Yeah. Perhaps in a different

Q Okay.11 A. The you know, you had to prove, I12 think, through the back here, 88, 2000, or13 whatever, that there was certain statutory14 requirements, like 4731 in 05, 06, that you15 have a high school diploma or equivalency and16 you had to go to college prior to you going to17 medical school. I think that s the term, the18 preliminary education term.19 NOW, it seems to me that there is a20 statute that refers to preliminary education,21 that somebody needs to verify that or do22 something, you know, with respect to that.23 That s the best of my recollection.2 Q Okay.

will not profess to be an expert on


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1 that.


Is that a requirement while youfamiliar with?8 were working for the Board?9 A. Yes. It looked a little bit

1 .Page 5 2

2 Let me ask you to turn a couple more3 pages. At the top it will say form Roman4 numeral five, Affidavit of Physicians.

Sure, yes.Is that a requirement that you are

1 0 different, but part of the process of licensurewould be, you know, getting different

1 2 statements from different places, like you work1 3 someplace or somebody who knows you, you know,1 4 verifies you, just like they did at the Bar. I1 5 think I had to come up with three people that1 6 said that I was sane or something, you know,7 akin to that. I think that s still there8 today. You know, you can verify, you know,19 that, but again, to the best of my2 0 recollection, yeah, that s something everybody21 has.2 2 Q This form is apparently two23 physicians that are, for lack of a better term,2 4 vouching for Dr. Patrick here?2 5

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Qo And the form provides for them to2 kind of insert how long he s been in the3 practice of medicine, the applicant?

Sure.Do you see that?Yes.

Qo It says, has been in the practice of8 medicine, in the top one, for the last9 one-and-a-half years at Jewish Hospital,

Do you know what the purpose of that

.Page 53

1 0 Cincinnati. Do you know whether this form11 still has that requirement in it?1 2 A. No.1 314 is?1 51 6 know, again, given the best of my recollection17 and abilities, sure, working with the Board,1 8 that, you know, the processes have changed so9 much in that by virtue of the fact that a

2 0 residency wasn t a required a requirement,21 rather, for licensure, that somehow the doctors2 2 felt more comfortable if they were getting3 something from somebody who had known them, you

2 4 know, in terms of their medical practice or in2 5 terms of their training.

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Page 541 mean, again, people, the term

2 residency, you know, I m sure it meantsomething different back in the 70s than it

4 does today. You have to go back and talk to5 people who were involved then and were involved6 in that field, but that s kind of my7 understanding of it. And here, the practice of8 medicine is the same if you were a student and9 you were, you know, doing something, somebody10 might have you as practicing medicine at that

point.1 2 Whereas I, who supposedly knows more13 about these different statutes, I would say4 practicing medicine, you have to have a license

1 5 under 4731.4, and when you have that, you are16 allowed to be practicing, blah, blah, blah.17 So again, I think this probably was8 something where, you know, it might even you

1 9 might go through the minutes way back then and2 find out if the Board says, this is what we21 want, in terms of check out people s past22 character and so forth. I think there s2 3 4731.08, that requires, I think, good moral24 character. This was as a requirement for2 5 licensure. It s a grounds you can disapprove


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Page 551 somebody. I don t know what the case law is.2 I know we can go after people solely on that,3 but I m pretty confident we threw it on there4 on a few criminal convictions and so forth, and5 said they didn t meet this, and this is part of6 our denial process.

Q. Were you aware of any time while8 you ve been with the Board that for foreign9 endorsement licensure, that there was kind of a

11 practicing before they would get an Ohio

I can t recall.If you could turn a few more pages to

16 Ohio Medical Board 14 it says, Resume of17 Activities at the top?

Yes.819 Q Is this a form you are familiar with20 as part of the licensure application?

Yes.

2 2Q. It was required when you were

23 executive director?Yes.


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Page 56you are familiar with while you were with the

2 Board?3 A Sure. You know, you look for gaps in4 time. You look for why hasn t somebody been5 working for, you know a year, oh, they were in6 treatment for a year or they were in prison for7 a year, you know. It s amazing, but some8 people leave out answers to some questions and9 then they answer it this way and try to head10 you around both ways, and they end up getting11 caught in some type of false statement, for12 whatever reason, and it is just pretty much3 that. It s something that you try to get a14 history of where that person was. And5 sometimes we would send letters, you know,6 dating back so many years, you know, let s go

17 check on them.Now, other things might prompt you to

19 look at the application and scratch your head

20 and say well, instead of our normal two21 letters and going back three years, this guy we22 better go back five years and so forth.23 And again, if you go over the24 continuum of time and you say what was the25 Medical Board doing in 1970 when they had 15

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Page 581 very last, but towards the end, there s seven,2 eight, nine pages that all look to be the same3 but with different physician stamps at the4 bottom left?

Correct.Am I right in that these are members

of the Board that are signing off on this8 particular applicant?9 A. Yes. Certainly what it appears to

1 be. And I recognize, you know, some names.11 They weren t necessarily there when I was12 there, but I ve heard stories of different13 people, yeah, heard names.14 that.

Yeah, I recognize

So does the well, this is

17 you were with the Board that for the granting18 of an Ohio medical license, each Board member19 checked off or signed off on each particular20 applicant?21 A. Yeah. And it s that way, you know,22 today in somewhat of a different way. But the23 Board does make a public motion where they4 would be sent by staff, staff review these

25 applications, and they met the legal


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requirements under whatever sections, and Board2 says, you know, aye. They don t necessarily go3 through and X off, you know, each one, but they4 would make that type of motion. To the best of5 my knowledge, that s still occurring.6 Okay. I m going to hand you a7 document that I ve marked as Defendant s8 Exhibit 6 and ask you to take a moment and9 review this document, if you would.10 MR. BLANKENSHIP: Did you skip 60,11 Ken?

516 happen.

MR. ZIRM: Did I?MR. BLANKENSHIP: Your last one is

MR. ZIRM: I knew that would probablyI did, but I will get back to it.

17 THE WITNESS: Okay.18 just kind of glance over it?9 Yes.

Is it okay if I

Is it okay if we take0 MS. PFEIFFER:2 a short break?22 A brief recess was taken.)

Page 59

23 Q When right before we broke,24 Mr. Dilling, I handed you what has been marked25 as Defendant s Exhibit 61, which is a copy of a


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Page 601 letter sent to you September 6, 2002 which2 purports to be a copy of a letter sent to you3 on September 6, 2002. You will see the copy we4 have is redacted. It doesn t indicate who the5 sender of the letter is. The first question6 is, can you confirm the receipt of this letter?7 A. Yeah. I would say that that s within8 the realm of the 4731.22 confidentiality9 provision.

1213 yes.

Okay.THE WITNESS: Am I correct?MS. PFEIFFER: I m fine with that,

So basically you are asserting a15 privilege not to answer that question16 A. Yes.

based on the statute?Yeah. I m sorry.Let me ask you if I can,

20 Mr Blankenship asked you some questions about21 Peter Heimlich ave you ever had a2 2 conversation with Peter Heimlich that did not23 have to do with the investigation of a2 4 physician complaint?2 5 A I can t recall that.


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Did there ever come a time when you2 learned do you know who Peter Heimlich is?

A. I ve been on the Internet, you know,4 and I ve read different things.5 certainly seen that name plenty of times. I m6 not limiting myself in that answer, I m just7 telling you I m aware of public nature of8 statements by a person purporting to be --9 Q And there have been, not just the

Yes.

I have

.Page 61

1 article in Scene but there have been articles1 1 published in Cincinnati where Peter Heimlich is12 identified, as well as his father Henry3 Heimlich. I m guessing you are aware of who

1 4 Henry Heimlich is?1516 Q. Did there come a time that you became17 aware of the fact that Peter Heimlich, at1 8 various times, has used pseudonyms?19 I have read that on the Internet,20 but you understand that I can t answer21 questions of information I received pursuant to

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22 an investigation.23 Q That s why I m trying to ask them24 rather broadly.2 I m just trying to help you guys out,

Ifj

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Page 6to understand, to answer the best I can live

2 within the law. So by virtue of my response, I3 just want you to understand that it s not4 it s limited to that context.5 Q. I don t want to waste anybody s time

If I went through this letter, whichhere.7 refers to other documents being sent to you or8 other information being provided to you, if I9 asked you to confirm any of those statements,

10 would you feel constrained to assert the11 privileges based on the statute?

Yes, I would assert the privilege.Okay.I would feel compelled to.

15 Q This is the one that was out of6 order. Let me hand you what has been marked as17 Exhibit 60, if you would.

Okay. Yes.Exhibit 60 purports to be a printout

20 of an e-mail from Kay Rieve to an undisclosed21 recipient, subject Dr. Edward Patrick.22 you seen this e-mail before?

ave

You know, again, I would have to be


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1 me?THE WITNESS: Let me think here just

3 a moment. If you will allow me to attempt to4 answer and then tell me if I didn t answer your5 question.6 Sure. Okay.

This to me, looking at it right now,8 appears to be something that we would answer in9 terms of a public records request or a request10 from the public, of which I would want our

staff to, you know, answer. And, of course, we12 answer questions on a regular basis of people13 that we don t know what their reasoning is for14 requesting that public record information, but1 5 we try to supply it because that s part of what6 we do. That s what this appears to be. I do

1 7 not know, you know, for a fact who anybody is18 here, who the requestor is, and so forth.9 And I would say that, you know, in

2 terms of them asking me any type of question21 where a public record document might be related22 to a confidential allegation, you know, that23 part of our investigatory file probably24 contains things that other people know about,


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Case 1 05 cv 02791 LW Document 120 Filed 02/07/2008 Page 64 of 91.I feel compelled by the statute to

2 answer questions with respect to this document3 on the basis of, you know, asking public record4 information, whoever did this, you know, they5 asked you this information, is it true,6 whatever, you know, I d be happy to try to help7 you out on that.8 But anything that tries to tie me9 into where my knowledge stems from or when I

1 0 first saw this, it s possible that in the11 course of Kay s day-to-day job, she didn t come1 2 running to me, somebody asked a question about13 Dr. Patrick, you know, and/or somebody asked me4 a question about Dr. X or Dr. or Dr. 2 . Dr.15 Z may be a subject of investigation by the6 Board. She didn t have to come and tell me7 each and every response she made.

So if Kay got an e-mail request for9 information about a physician, she could, on

20 her own, answer the question?Correct. Or she does not have a law

2 2 degree but she has been in licensure for a good2 3 period of time. She has answered some, but she

might25 answer.

utilize staff help construct thisThis may have been begun by her but

Page 64


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Page 65had other people who helped her respond to this

2 request.Q Okay. But if it was a question that

4 was just asking for publicly available5 information but it did have to do with a6 physician that may be under investigation, it7 wouldn t necessarily be that wouldn t8 necessarily require her not to answer the9 question; is that right?

Correct. Correct. Absolutely, yeah.Q Well, given that one question, how

12 long has Kay Rieve been with the Board?13 She, I think, pre-dates me, you know,14 in 88, but I can t swear to that. You know, I15 don t want to say that about poor Kay if that16 wasn t the case. But she s been there for,7 let s say, a long period of time.

Okay.19 A Not necessarily in this position.

20 She right now, since 2002, I think, is21 administrator in the overseeing the22 licensure and records sections, and I don t23 know if she still is that person, but that s24 where she was when I was there and in 2002.

Looking at the first sentence of the


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Case 1 05 cv 02791 LW Document 120 Filed 02/07/2008 Page of 91

Page 661 second paragraph of this e-mail, the Board did2 not require primary source verification for3 every entry on the physician s resume or even4 the post-graduate training in 1976. Do you5 agree with that statement, or do you have any6 knowledge whether that s an accurate statement7 or not?

Yeah. I would rather say that I9 can t answer that for sure because I wasn t10 around in 1976.

Okay.You know, I could give you my guess,

13 but it would be more of a guess at this point.That s fine.I might have known sometime in the

16 past, you know what I m telling you? You know,17 I may have been involved enough to answer that18 question more articulately a couple years ago,19 but right now

20 Q You don t remember everything you21 ever learned?

Yeah, exactly. would not be good23 on that show with the fifth graders. My24 three-year-old gets me, what am I talking25 about?


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7 question.8 A.9 in any way.

Do you know who Phil Heimlich is?Yes.Are you personally acquainted with

4 Phil Heimlich?Never met him, never talked to him.I guess that would have been my nextYou never talked to Phil Heimlich?

No. Never corresponded, communicated

No.Does the Board treat anonymous

I

Page 6 7

1 Q Does the Board treat is there a11 requirement that a complainant identify12 themselves?131415 complaints differently than other complaints?16 A You know, again, that s a broad17 question. We will accept anonymous complaints.18 Obviously when you complain anonymously, it19 makes the job a lot more difficult, and so2 there is a bit of question about credibility21 sometimes too, but that is dependent upon what22 information we are presented and so forth. And23 so by way of differently, I think that there is24 potential differences, but we don t throw it25 into an anonymous pile and say open it andt ~ - ~ ~ ~ ~ - . L L J * - I = . . - - I ~ L - I - - - - T A ~ ~ . - . a . - H w ~ = ~ t t . t t I..~Ic.-A+ +~+P--=. I C ~ ~ ~ I I _ a a a uwis~ir r w u e : . ~ ~n c .=z :y ..ii>l~tlUn~irt=---~HUI ~rrr~~:~~.~-~.r-.-r~~~

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Page 81 close it type of deal.

One of the differences might be with3 an anonymous complaint, it might be more4 important for you to get corroborating5 information from other sources?

Correct.Do you know Gary Harris?I ve heard the name, but again, you

9 know, in my position with the Board, positions10 over time, you can throw out some names at me11 that I recognize and are in the health care12 field and that person would say, oh, Tom13 Dilling, I know Tom Dilling, and again, I wish14 I had my three-year-old s ability to recall15 names and that, but I m sorry that I don t6 necessarily.

That s all right. Maybe this will18 spur your recollection. I ve handed you what s19 been marked Exhibit Number 62 and ask if you20 would take a look at that, if you would.

Okay.This purports to be a copy of or a

23 printout of an e-mail from Gary Harris to24 [email protected] with a number of cc s,25 including Tom Dilling@med state oh us Was


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Page 691 that your address at the Board?

AQ

Yes.It s dated September 19, 2003, and

4 discusses Dr. Patrick at Jewish Hospital. Do5 you recall receiving a copy of this e-mail?6 A. I think that, again, it may be inthat amorphus area of confidential well, no,

8 I don t think it was amorphus. I think I m9 compelled not to answer based upon the10 confidentiality provision in 4731.22.11 Q You would take that position even12 though it doesn t appear to be information you13 were seeking or that the Board was seeking?

A. It doesn t there are a lot of415 things that may not appear to you or to anyone16 else on any individual matter to be something17 that the Board was involved in or interested18 in, and I can t really tell you that that was19 the case in here, but I think that the nature20 of what is being asked, and I specifically21 refer to like fraudulent, you know, and so22 forth, that is kind of what is backing me off23 from responding.24 I think that it s different, at least25 in my mind here, from this e-mail exchange in


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Page 701 the sense that this is asking for like an2 interpretation of, you know, what the law is.3 Indicating.4 Now, this other one is talking about5 potential fraud and, you know, evidence and6 things like that, so I m backing off even7 further from attempting to answer that based8 upon the privilege.9 Q Okay. So just, again, I m just

Right.11 Q I m not I don t mean to beat a12 dead horse but, for the record, you feel13 compelled not to answer questions about Exhibit14 62 because of the privilege and the statute,15 correct?16 A Correct. If you were to ask me some17 type of general question about the law and how18 it applies that may have sparked your interest19 through some type of e-mail like that, I d be20 glad to help you, if I can.

Let me just ask whether this document22 refreshes your recollection as to whether you23 know Gary Harris.4 A. 1 11 just tell you same as before.

25 I m looking at a document that says Gary


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Page 711 Harris, General Counsel, Health Alliance of2 Greater Cincinnati. I m aware of the Health3 Alliance. Over of the course of my career, I4 probably dealt with him on occasion, but he s5 not somebody who I had on my Rolodex, not6 somebody who I would call up necessarily and7 say, hey, Gary, you know, can you help me out,8 you know, in such and such a matter or9 whatever.

Can you tell me I ve got to ask,11 can you tell me whether the State Medical Board1 2 ever obtained Dr. Patrick s file from Jewish13 Hospital?

16 privilege?

I can t tell you.And, again, that s based on

Based on privilege, yeah.MS. PFEIFFER: Can I just interject?

19 So we are clear, when you use the term2 privilege, I m not sure it s2 MR ZIRM: That may not be exactly2 2 right.2 32 4 statute.

THE WITNESS: The confidentiality

MS. PFEIFFER: Right. That s fine if


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1 you use privilege, so long as we are all on the2 same page.3 Q Do you know Mike Bowen?

Yes.5 Q Have you ever had conversations with6 Mike Bowen in a non-medical Board investigatory7 setting?

A.Q

Yes.Did you consider any mention of a

You know, I can t recall.I m going to ask you some more

. Page 72

10 physician to be a potential complaint when you11 were executive director of the Board?12 A. No.13 Q There has well, strike that. Did4 Mike Bowen ever mention Dr. Patrick to you in

15 passing, not in a complaint sense but in16 passing?17 A.18 Q19 questions about your contact with Tom Francis20 of Scene. I m going to hand you what has been21 marked as Exhibit 63 I ll represent to you22 that Mr. Francis has been deposed in this case,23 and on behalf of Scene and Francis we produced24 some documents, which include what Mr. Francis25 has testified to, and these are transcripts of~rlrr-u ur~2~-1~~ku;ku;t t11~~~--M-rM1~FL~< hhLtll-I~:Jx.n I.~l(llll. - ' - i ? t l d *lllllkl0-(kr-IP*?I 2tIf12l. - l i l r r ~ J E W - W P - 2- -I. .~~.*..IIAL~d- --i

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1 his notes.Okay.And this is a page that I ve taken

4 from the transcription of his notes.Okay.Which purports to be notes of a

7 conversation he had with you. Just with that8 context, I will ask you if you would review it.9 A. Sure. Could you tell me, is this

I m not su.re we know that.

. Page 7

1 supposedly taking place prior to his writing of11 the article? Would that be okay for you to12 tell me?1314 weren t dated

Deposition by former OH Medical Board executive director Thomas Dilling, Edward A. Patrick MD PhD v....

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