MORE VINDICATION FOR DR. DAY

Yesterday (March 7th, 2017), the Texas Medical Board complaint against Dr. Calvin Day was dismissed by Administrative Law Judges (ALJ’s) in the State Office of Administrative Hearings (SOAH). (https://cis.soah.texas.gov/dmwebbasic/tokweb27.ASP?WCI=opendocument&SKEY=431053_0_9_63&localtimezone=360).

As a result, both the criminal and civil cases brought against Dr. Day have now been dismissed by the respective courts and there are no more pending court cases or pending charges against Dr. Day for the first time since 1/27/2011.

An Agreed Order (AO) approved on Friday 3/3/2017 by the Texas Medical Board   lifted the “Temporary Suspension” of Dr. Calvin Day’s Medical license and set the stage for the granting of the unopposed Motion for Dismissal by the SOAH ALJ’s. As a result of these actions, Dr. Day will soon be issued a legal permit to practice medicine in the State of Texas for the first time since the suspension of his medical license on 6/14/2011.

As is the case with all physicians who return to practice after a prolonged absence, the AO calls for Dr. Day to first undergo a supervised proctorship lasting up to six months. Upon successful completion of this proctorship, Dr. Day’s license is to be fully reinstated subject to certain restrictions in the AO that include a 12 month period where he limits his medical practice to a group or an institutional setting.

The AO further specifies that after successful completion of one year in a group practice that Dr. Day’s license will be fully restored without restriction. Although a return to solo practice would be an option at that point, Dr. Day who is 65 years old, intends to finish his career in a group or institutional setting in order to avoid the many administrative hassles of solo practice that continue to worsen each year with the ever increasing  plethora of new rules.

It is noteworthy that there were no punitive measures in the AO relating to the allegations of sexual impropriety which caused the suspension of his license in 2011; rather the AO focused primarily on “return to practice issues” after absence from medical practice, which in this instance was caused not by Dr. Day but instead by Board actions.

The only restrictive measure in the AO related to the allegations is a requirement for Dr. Day to be accompanied by at least one other medical professional in the room while seeing patients, which Dr. Day has always done anyway and is viewed by him not as a restriction, but rather a continuation of his former practice routine.  In addition, the AO requires the medical professional accompanying Dr. Day to initial a chaperone log. This measure is welcomed by Dr. Day as a useful mechanism to attempt to prevent additional spurious allegations. Keeping a chaperone log is a practice that Dr. Day intends to continue even after he obtains an unrestricted license.

Prior to the AO, the Texas Medical Board staff and two Board members had been engaged in negotiations with Dr. Day and his attorneys since August 2016 when their attempt at mediation failed. The matter was set for trial in July 2017.   Since the August 2016 mediation failure, each passing month brought developments favorable to Dr. Day, eventually resulting in a Board epiphany that the allegations against Doctor Day were a result of either misperceptions or fabrications.

By the middle of February 2017 circumstances were ripe for an Agreed Order because of the following:

  1. Dr. Day had been subjected to and had successfully run a punishing gauntlet that included two extensive psychiatric evaluations (passed), a polygraph (passed), sexually transmitted disease tests (negative), drug tests (negative), and genitalia photos (not a match for the two complainants who sketched alleged likenesses).
  2. Four of the six complainants in this case refused to cooperate with the Board by either failing to appear at their scheduled depositions after being lawfully noticed or by refusing to respond to the Board’s attempts to contact them through calls and certified letters.
  3. The one complainant who was deposed disavowed substantive statements in the Board’s complaint against Dr. Day and two Board Certified Dermatologists filed affidavits stating that her complaint was not a violation of the Medical Practice Act (the Board did not designate or could not find an expert to controvert this opinion).
  4. The one remaining complainant in the Board’s case against Dr. Day who had not yet been deposed, had made statements in her prior testimony that were not credible (see below).
  5. Finally, in a coup de gras, Dr. Day’s attorneys shocked the Board attorneys by confronting them with sixteen boxes chocked full of exculpatory documents that Dr. Day’s legal team had accumulated over the prior six years. These discovery documents included more than 70 subpoena returns, private investigator surveillance reports and interviews, bank records, pharmacy records, telephone records, and medical records. Included in this Discovery were documents showing that all complainants had instances of serious substantive misremembrances of facts including some instances, apparent perjuries. Other documents showed disconcerting behavioral patterns of some of the complainants consistent with individuals who would fabricate false claims for financial gain.

Ultimately, the Agreed Order added funds to the State Treasury by putting a halt to further expenditures on a case that was most assuredly shaping up to be a favorable court decision for Dr. Day as evidenced by the five circumstances listed above and by the individual rebuttal summaries detailed below.

REBUTTAL SUMMARIES OF DR. DAY’S MEDICAL BOARD COMPLAINANTS

See RESPONDENT’S THIRD ORIGINAL AMENDED ANSWER at https://cis.soah.texas.gov/dmwebbasic/tokweb27.ASP?WCI=opendocument&SKEY=430725_0_9_63&localtimezone=360

Of the innumerable rebuttals specific to each complainants’ allegations against Dr. Day, the major rebuttals include the following:

  • Patient One –1) Refused to cooperate with the Board by failing to appear at her scheduled deposition after being lawfully noticed. The Board attorney had traveled from Austin to San Antonio for the deposition and was waiting for Patient One to appear when she received an affidavit from Patient One invoking her 5th Amendment right against self – incrimination in response to 69 separate allegations of perjury relative to Dr. Day’s case. In civil law, as opposed to criminal law, taking the Fifth is tantamount to an answer of yes to each question. Accordingly, the presumption in civil law is that Patient One’s Affidavit is an admission of guilt to all 69 questions propounded to her. 2) In support of this conclusion are more than 70 subpoena returns and private investigator reports that include evidence that a) she was not where she said she was on the day of the allegation or on the day before the allegation at times that were relevant to the case, and b) she had a pattern of behavior consistent with someone who would fabricate a sexual assault charge, including i) three separate instances at three separate restaurants where she claimed that she broke her tooth on a “rock in the food” and two instances of “slip trip or fall” type insurance claims, and ii) other evidence that appear to indicate theft by insurance fraud, theft by check, theft by forgery , theft by credit card, theft by shoplifting , violation of real estate ethical guidelines for financial benefit, a pattern of developing relationships with married professional men for financial gain (including at least two physicians), receiving unemployment benefits while working , obtaining prescriptions from physicians by developing a personal relationship with them, seven prior bodily injury claims, psychiatric care predating her allegation, using an elderly man to file a false affidavit for her benefit, and avoidance of service.
  • Patient Two –1) Refused to cooperate with the Board by failing to appear at her scheduled deposition after being lawfully noticed. The Board attorney had traveled from Austin to San Antonio for the deposition and was waiting for Patient Two to appear when Patient Two telephoned and expressed a concern that she needed to have her own attorney. 2) She admitted under oath that she returned to Dr. Day for professional care after the alleged molestation. 3) The medical assistant in the exam room on the date of Patient Two’s allegation swore that she was in the room with Patient Two and Dr. Day the entire time and that nothing happened. 4) Patient Two’s alleged phone calls from Dr. Day are not found in the phone records and handwritten police notes verified their absence. 5) Patient Two has an excessive number of insurance claims (i.e., 20) including at least one bodily injury claim. 6) Dr. Day’s staff testified that Patient Two was solicitous towards Dr. Day including lewd posturing, refusal of a modesty blanket to cover herself, and a request to have Dr. Day call her when she gave staff a note with her telephone number on it. 7)  Patient Two did not file a complaint until February 2011 which was some 19 months after her last visit to see Dr. Day, and then only in response to the crowd behavior emotions evoked by Dr. Day’s televised “perp walk”.
  • Patient Three – 1) Refused to cooperate with the Board by refusing to answer all telephone calls and certified mail, 2) returned to see Dr. Day on multiple occasions for professional care three years after the alleged digital penetration, 3) encouraged him to hire her mother and her younger sister on dates after the alleged event, 4) swore a timeline narrative that is inconsistent with preserved documentary evidence, and 5) alleged that this event occurred in 1999 but she did not file a complaint until 12 years later in February 2011, and then only in response to the crowd behavior emotions evoked by Dr. Day’s televised “perp walk”.
  • Patient Four – 1) Cooperated with the Board and was deposed on 2/13/2017. In her deposition she disavowed statements in the Board’s complaint and these included her saying under oath that a) she was not “made” or forced to remove her clothes but did so of her own volition, b) that she was not “made” or forced to have the full body exam but did so of her own volition, c) that she did indeed sign a consent form to have the exam, d) that she does not recall whether it was Dr. Day or his staff who educated her on clothing removal and the extent of the examination, and e) that she had no recollection of making a complaint to police. 2) She confirmed that the essence of her complaint was that she believes that it was appropriate for Dr. Day to have touched her mole once but inappropriate for Dr. Day to have touched it three times. 3) Two experts, after reviewing medical records and testimonies, concluded that Dr. Day was not in violation of the medical practice act and opined that Dr. Day’s care of Patient Four was appropriate and within the standard of care. These experts confirmed that dermatologists do indeed often touch skin lesions and often touch a single lesion multiple times. The Board did not offer (or perhaps could not find) a dermatology expert(s) with an opposing opinion of the Patient 4 case. 4) This complaint arose out of Patient Four’s misperceptions of what constitutes the indications and proper protocol for performing a full body skin cancer screening exam. Dr. Day had performed some 50,000 such exams and an occasional misunderstanding, misperception, and/or misinterpretation is to be expected; but Patient 4 never confronted Dr. Day with her concerns. Instead she held back voicing her feelings for 21 years; only after seeing Dr. Day’s televised arrest in January 2011 did she make them known apparently a result of “mob” behavior emotions evoked by Dr. Day’s televised “perp walk”.
  • Patient Five – 1) Refused to cooperate with the Board by refusing to answer all telephone calls and by refusing certified mail. In fact she had not responded to Board communications since 2011 when she ignored the Medical Board’s subpoena to appear to testify. She also refused to testify in the Bexar County criminal proceedings against Dr. Day.  2) Two board certified dermatologists, after reviewing medical records and testimonies concluded that Dr. Day was not in violation of the medical practice act in this instance and that Dr. Day’s care of Patient Five was appropriate and within the standard of care. 3) This complaint was a result of Patient Five’s misperception resulting from her experience of having less extensive exams performed by other dermatologists after leaving Dr. Day’s care. Patient 5 was under the impression that Dr. Day’s exams were too invasive as a result of her subsequent experience with these other dermatologists, yet in truth, as verified by two Board Certified Dermatologists who reviewed her medical record, Dr. Day had adhered to the type of examination called for by the standard of care guidelines for her medical condition and these other dermatologists had not. 4) Patient Five returned to see Dr. Day repeatedly over a period of eight years for full body skin examinations so these exams apparently bothered her much less than alleged. 5) This complaint arose out of Patient Five’s misperceptions of what constitutes the indications and proper protocol for performing a full body skin cancer screening exam. Dr. Day had performed some 50,000 such exams and an occasional misunderstanding, misperception, and/or misinterpretation is to be expected; but Patient 5 never confronted Dr. Day with her concerns. Instead she held back voicing her feelings for 11 years; only after seeing Dr. Day’s televised arrest in January 2011 did she make them known apparently a result of “mob” behavior emotions evoked by Dr. Day’s televised “perp walk”.
  • Former Employee Louise Feuge – 1) Cooperated with the Board and was to be scheduled to be deposed. Yet Ms. Feuge’s deposition would have likely caused her great emotional upheaval because it would have included queries concerning a) the doors Feuge alleged to have been locked which have now been verified by multiple former staff and building representatives to have been be “unlockable”[1]  in 2000 and all other years, b) Feuge’s allegation that Dr. Day had a congenital genital deformity that was only visible to Feuge and no one else, c) Feuge’s allegation of voluntarily carrying out a medical procedure that if true would have caused great tissue damage and harm to her patient (in violation of Nursing Board rules), and d) the absence of documentation in the records of patients that Feuge alleged that she treated on 5/13/2000 (in violation of Nursing Board rules). 2) The defense had already designated an expert who would have testified that the allegations stated by Ms. Feuge could not have occurred without serious bodily injury to Dr. Day. 3) Feuge’s complaint was not filed until eleven (11) years after Dr. Day gave Feuge the option to be fired or to submit a letter of resignation in May 2000. This exceptional eleven year delay between her termination and her filling a complaint against her former employer may have arisen a) out of an abnormal emotional need for revenge against Dr. Day for having terminated her[2], or b) Feuge’s perceived potential financial gain by piling on to Dr. Day’s 2011 televised “perp walk”, or c) Feuge’s emotional “mob” type response to seeing presumption of guilt televised images of Dr. Day being paraded in handcuffs.  One can only speculate on Feuge’s motivation now that the Agreed Order has nullified the need for Feuge’s deposition. Nevertheless, Feuge’s inclusion of a penis insult in a complaint against a former employer does make one wonder if all of the possible motivations have been considered.

WHY SIX COMPLAINANTS?

The above individual rebuttal summaries while impressive, paint an incomplete picture because they do not deal with or explain why there were six complainants (instead of none or just one).

At least two factors were involved:

1) first, Dr. Day had an unusually high number of at risk events by virtue of the unusually large number of patients under his care and unique nature of his practice and

2) an unusually large staged media event occurred that precipitated the complaints by depicting a presumption of guilt image of Dr. Day, and this in turn was followed by resultant “mob” behavior phenomena.

An abridged sequence of events is as follows:

“Patient One” falsely accused Dr. Day of sexual assault in 2010. This was a she said he said case without witnesses, without DNA evidence wherein Dr. Day took and successfully passed a polygraph. Patient One had waited 10 days to file a complaint to avoid DNA testing; an immediate DNA test would have exonerated Dr. Day.   Ultimately, in 2016, Patient One all but recanted by submitting an affidavit invoking her Fifth Amendment Right against self-incrimination in response to 69 separate allegations of perjury relative to Dr. Day’s case.  In civil law, as opposed to criminal law, taking the Fifth is tantamount to an answer of yes to each question. Patient One’s Affidavit is basically an admission of guilt. Multiple Discovery documents support this conclusion.

The detective in charge of the Patient One complaint engaged in misconduct by swearing out an affidavit in January 2011 stating that Patient One had correctly identified Dr. Day’s genitalia when, in fact, this was not true. The detective then used this false affidavit to obtain an arrest warrant which was what she then used to stage the “perp walk” to purposefully solicit other complainants; the detective was recorded as saying “And you know, if there’s a bunch of people telling similar stories, it makes it more believable that this really happened.” Other evidence appears to indicate that the detective had a personal relationship with Patient One.

The arresting officers came to Dr. Day’s office and physically pulled him from an exam room while Dr. Day was examining a patient.  They handcuffed him in front of other patients.  All of this occurred despite Dr. Day’s attorney having sent a letter in advance stating that, if Dr. Day were to be arrested, that Dr. Day would turn himself in. The officers took him to the downtown police station and held him there for approximately one hour until camerapersons from all four local television news stations were in place.  One of the officers asked if we were going out the back way. The detective said “NO” and pushed an elevator button. When the elevator doors opened, the blinding lights of television cameras shocked him.

This was the “perp-walk” on 1.27.11, as seen by approximately 900,000 television viewers (according to Nielsen). Dr. Day was shown in handcuffs with on-camera solicitations by police for “other women” to file complaints against him, even though he had been complaint-free throughout his entire 27 year career. Dr. Day cared for 40,000 patients, (20,000 of which were women) and conducted approximately 50,000 full body skin cancer screening exams that included inspection of breasts and genitalia-all without complaint.   The enormous number of exams over time, created a pool of people who knew, and knew of Dr. Day.  When coupled with public exposure to an audience of approximately 900,000 people, the negative images of him being paraded in handcuffs, and the on-camera solicitations portraying him as being guilty, opened him to false claims.

To “perp-walk” any man who is accused of sexual impropriety who has wealth or position of power, invites opportunists to come forward without any concern of perjury because it is all almost by definition “he said, she said” testimony. Doctors are particularly vulnerable to these types of false claims due to the nature of their work (i.e., close proximity to patients in various stages of undress).   Unsurprisingly, following Dr. Day’s “perp walk”, former patients and former employees filed sexual impropriety type complaints against him, yet the following general considerations seriously undermine their credibility:

  1. All four medical board patient complainants who surfaced after the “perp walk” returned to see Dr. Day for professional care on a date after the allegation. The medical records of Patients Three, Four, and Five prove that they returned to see Dr. Day after their allegations, and Patient Two stated in multiple testimonies that she returned to see Dr. Day after the alleged molestation but ultimately she confessed that she could not remember the date of the allegation; her medical record shows nine documented visits to see Dr. Day.
  2. All five of these secondary complaints came on the heels of a huge media event surrounding Dr. Day’s arrest and all of them were years to decades old. These complaints did not trickle in over the years as would have been expected if they were true.
  3. Prior to Patient One and the “perp walk”, Dr. Day had practiced complaint free for 27 years; there was not a single complaint lodged to any official authority concerning sexual impropriety during those 27 years despite having cared for 20,000 women, having employed 376 women, and having performed some 50,000 full body skin cancer screening exams that included inspection of the breasts, anus, and genitalia.
  4. With five medical board patient complaints out of 20,000 female patients, this is a false positive complaint rate of 0.00025. Dr. Day’s practice was 16 times larger than the average family physician and yet the number of complaints when considered in the context of the size and nature of his practice is vanishingly small, as one would expect in a practice with high standards.

It’s clear that these secondary complainants were manufactured by the circumstances of

  • having a staged media event portraying him as a wealthy doctor who was guilty from the outset by parading him in handcuffs before 900,000 television viewers with on-camera solicitations for other women to come forward at a time when there were no other complaints in the preceding 27 years, and
  • having an abnormally high number of “at risk” events because Dr. Day had
    • 16 times the number of patients  as the average family physician,
    • performed some 50,000 full body skin cancer screening exams that included inspection of the breasts, anus, and genitalia, and
    • employed 376 women during Dr. Day’s 27 year practice career.

Knowing the actual facts and circumstances graphically illustrates

  1. why it is a great injustice indeed to tell someone who is unfamiliar with Dr. Day’s case “as a result of the initial charges, various other women came forward and made allegations against Dr. Day…”,
  2. why there were six complainants (instead of none or just one), and
  3. why it understandable that NONE of the complainants were found to be credible after a more careful investigation.

For more information see www.drcalvindayisinnocent.com
[1] The doors in Dr. Day’s former office were like all doors in doctors’ offices and bathrooms, wherein it is possible to lock the doors to prevent entrance into the office or bathroom, but the doors do not prevent exit from the inside in accordance with fire escape building codes.

[2] After all, we occasionally hear of the abnormal emotional response of a disgruntled former employee who returns to the workplace a with handgun to kill or attempt to kill a former employer, so intuitively other types of abnormal emotional responses are feasible and should be considered in the Feuge case given the extraordinary length of time between the alleged incident, the filing of the complaint (i.e., 11 years), the bizarre allegations, and her inclusion in her complaint of a penis insult.