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Case I :05-cv-02791-LW

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IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION

*
EDWARD PATRICK, Plaintiff,
VS.

CASE NO. 1:05 CV 2791

CLEVELAND SCENE PUBLISHING, LLC, et al., Defendants .

Deposition of THOMAS DILLING, Witness herein, called by the Plaintiff for cross-examination pursuant to the Rules of Civil Procedure, taken before me, Melissa A.
Neary, a Notary Public and Registered

Professional Reporter in and for the State of Ohio, at the offices of Ohio State Board of
Nursing, 17 South High Street, Suite 400,

Columbus, Ohio, on Tuesday, April 17,


1 : 0 6 p.m.

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INDEX

PAGE

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Page 3
1 APPEARANCES :

2
3

On behalf of the Plaintiff: Monohan


&

Blankenship

N. Jeffrey Blankenship Attorney at Law 7711 Ewing Boulevard, Suite 100 P.O. Box 1 5 7 Florence, Kentucky 41022-0157
and Robbins, Kelly, Patterson Randy J. Blankenship Attorney at Law 7 West Seventh Street Suite 1400 Cincinnati, Ohio On behalf of the Defendants: Walter
&

&

Tucker

Haverfield

Kenneth Zirm Attorney at Law The Tower at Erieview 1301 East Ninth Street, Suite 3500 Cleveland, Ohio 44114 On behalf of Thomas Dilling: Ohio Attorney General's Office Barbara J. Pfeiffer Attorney at Law 30 East Broad Street 26th Floor Columbus, Ohio 43215

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Page 4 ; (Defendants1 Exhibit Numbers 57


2 through 63 were marked for identification.)
t

THOMAS DILLING
4 of lawful age, Witness herein, having been 5 first duly cautioned and sworn, as hereinafter
6 certified, was examined and said as follows:

CROSS-EXAMINATION
8 BY MR. N.J. BLANKENSHIP:
9

Would you please state your name,

10 sir? Sure. It's Thomas A., middle

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:
16 Pfeiffer.

My name is Barbara

I'm an assistant attorney general

17 working for Attorney General Marc Dann.


18 today's deposition, I will be representing

19 Thomas Dilling in his capacity as the former


20 executive director of the State Medical Board
21 of Ohio.

22

Prior to the beginning of the

23 questioning, I thought it might be helpful just


24 for me to share a copy of a statute that I

25 think might be relevant to today's proceeding.

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Page 5
1 I made a copy for each counsel.

I appreciate

2 having the opportunity to have read the amended

3 complaint in the matter.

What I wanted to indicate in the

6 the Medical Practices Act, 4731. (I?) (5) that

7 basically cloaks the Medical Board


8 investigations with confidentiality. 9 it read as follows:

In part,

Information received by

10 the Board pursuant to an investigation is

I
I1
1

11 confidential and not subject to discovery in


12 any civil action.

And the next sentence goes

13 on to state, the Board shall conduct all

14 investigations and proceedings in a matter that


15 protects the confidentiality of patients and
16 even persons who file complaints with the

17 Board.

I'm going to end the reading directly


19 from there.

I just throw that out there,


I'm not

20 gentlemen, so you are aware of that.

21 sure exactly where all the questioning will be

22 going.

I am going to, if I feel it's

23 necessary, object where appropriate and if Tom


24 needs to consult with me through the questions,

25 we will do so.

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Page 6

I appreciate you letting me have this


2 opportunity to speak, and now I am prepared to

3 sit back and listen. Mr. Dilling, you told us your name. 5 Would you please tell us your title?
6

A.

Currently it's adjudication

7 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 the


16 State Medical Board.
17

Q.

And what were your job

18 responsibilities as the executive director of

19 the State Medical Board?


20

A.

Well, I oversaw a staff of, geez, 70

21 to 80 persons, Board license and disciplines,

22 doctors, massage therapists, and other kinds of


b

allied health providers.

We had about 50,000

24 licensees, and I'm responsible for that.

Okay.

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Page 7
1

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


C I

3 about a particular health care provider who was 4 under your licensure, it would be your job to
5 turn that over for investigation?

-4
1:

i
I

Yes, Would you tell us about your

;
+
1
I

8 educational background, please? 9 A. Well, do you want to go back to high

1 0 school?

11

High school is fine. A. Because we were just talking about I went to Cleveland
1

12

13 it.

I'm from Cleveland.

14 St. Ignatius High School.

I graduated in
II I

15 1984 -- I'm sorry -- 1980, and then I went to


16 St. Louis University from '80 to '84; graduated 17 with an honors A.B. in political science and a 18 political journalism certificate.

Then I went And

19 to Ohio State law school from '84 to ' 8 7 .

20 then in, I think, around February of '88 is


21 when I started with the State Medical Board.
Q.

Okay.

So you were with the State

23 Medical Board from February of 1988 until when?

It was about, I think, May, 2005. Okay.


Is that when you took the

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1 position with the Board of Nursing?

2
3

A.

Yes. Okay.

I guess -- I know you are

4 aware that we are here relative to the case of


5 Edward Patrick versus Cleveland Scene
6 Publishing, et al.? 7

Yes.
Q.

We are here because you were quoted I'm going to be asking you

9 in that article.

10 some questions about the information that was

11 obtained from you in relationship to that


12 article.

If at any time I ask a question you

13 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 in

17 nature.

Make sure I finish asking the question

18 before you attempt to answer.

Is that okay?

That's okay.

20

Q.

If you need to consult with counsel,


We will take a break at any time

21 let me know.

22 you want to and you can consult with counsel


23 any time you need to.

Okay.
I need to ask if you have spoken with

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Page 9
1 certain people relative to either this article

i' 1;

1.

2 or preparation for or investigation of this

Have you ever spoken to a man named


4 Peter Heimlich?
5
MS.

PFEIFFER:

I ' m going to object,

6 because if you are asking him if he's ever

7 spoken to this person with respect to an


8 investigation, that would be a confidential
9 matter that he would not be permitted to

10 testify to.

Well, first of all, I'm just asking the question, have you ever spoken to him, I 12 13 first? Have you ever spoken to Peter Heimlich? MS. PFEIFFER: I'd like to consult.

15 Do you want to consult?


16
17 18

THE WITNESS:

Sure.

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


THE WITNESS:

I appreciate the

19 question, but on advice of counsel, I really

20 can't answer that based on -Q Just for the record, then, any 21 22 conversations such as what I asked about, you

23 would consider confidential and protected by


24 statute? 25
MS. P F E I FFER :

If you're getting at

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Page 10
1 any investigative matters.
2

1'

I-

MR. N.J. BLANKENSHIP:

Okay.

MS. PFEIFFER:

And we are not trying

4 to be obstructionist. We really have a clear

5 duty to protect the investigation itself, as


6 well as the complainant.
7

MR. N . J. BLANKENSHI P:
MS. PFEIFFER:

I understand.

Thank you.

Mr. Dilling, let me show you what we

10 have marked as Exhibit 4L and just ask you to

11 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. Okay. Have you ever spoken with a

18 man named Tom Francis?

19

A.

Yes.
Okay. That wasn't in connection with

21 any investigation; it was in connection with an

22 article he was writing; is that correct?

I spoke to him based upon, you know,


24 him calling me, asking me some questions, of
25 which he may have asked questions about a

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Page 11 1 complaint, in which I would have given him 2 similar answers to what I'm giving you today in 3 terms of confidentiality. 4 Q. So you would have told him that you

5 could not specifically answer questions about a 6 specific complaint?


7

A.

Correct. You were quoted in an article which

9 he wrote, which is previously marked as Exhibit 10 38 in this case, so I'm not going to mark it 11 again.

I can show you a copy if you need to

12 look at it to refresh your memory. 13

MS. PFEIFFER:

Is that October 27?

Playing Doctor. 15 It probably couldn't hurt me to have

16 a copy of it. Refresh your memory of what it says.


18

A.

I've looked at it since I was served

19 once or twice, kind of scanned the whole thing, 20 and I guess I'm familiar with what I think is
21 just one time that I'm indirectly quoted, quote
22 marks around something that was attributed to

23 me, and then I kind of recall there being


24 another time where they said that I couldn't 25 really say anything relative to any

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1 investigations.

You were quoted in that


3 article by the Cleveland Scene published in 4 October of 2004, correct?

A.

Depends on what you call a quote.

6 guess there were quote marks and a quote was


7 attributed to me. 8 direct quote.

I don't know if it's a


1

It certainly wasn't something

9 that I said to Mr. Francis. Q.

Were you -- are you trying to tell us

11 that you were attributed with a quote that you

12 did not make?

I was trying to answer that


14 specific question.
Q.

I hadn't gone that far.

Okay.

Were you attributed with a

! ;

16 quote in that article which you did not, in

17 fact, make? Well, yes, I believe so. Tell us what that is. Yeah. I want to -- there is a
-!.t

21 I'll read the paragraph or sentence here, 22 sentence or two.

1:
1

It says, "Dilling never


i ! I.

23 questioned Peter Heimlich about the Lima case

24 or Jewish Hospital residency, but according to


25 Heimlich, Dilling said that 'faking a residency

i.
I

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Page 13 1 was no big deal,' and the Board was more


2 concerned with chasing doctors who wrote
3 illegal prescriptions."

When I read this, I'm looking at it

5 and saying, you know, in terms of "Dilling 6 never questioned," that wasn't me speaking to 7 Francis, necessarily.

It's possible that

8 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 involving 11 any particular investigation.
12 Q.

Would you have said anything like

13 faking residency was no big deal?

Well, I can tell you that if you let


15 me answer this way.

16

Q.

Okay. Going with the law here, in my 20

18 years with the Board, whatever it was, 18


19 years, '88 to '95. MS. PFEIFFER:

21

THE WITNESS:

2005, right, I'm sorry.

22 I never said faking a residency was no big 23 deal, you know, to anyone.

I can't imagine

24 when -- a situation in which I would have said

25 that.

You know, since I've been subpoenaed,

Case 1:05-cv-02791-LW
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1

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Page 14
1 I've kind of wracked my brain and tried to

2 think, you know, could I have said it in some 3 other context where it could be misconstrued.
4

Certainly in this specific context,

5 and I just can't recall ever saying anything

6 like that, you know, at any point in time in my 7 career. It kind of counters what is fact with

8 the Medical Board, that we take discipline 9 actions every year based upon false statements
10 and we certainly have -- there are cases where

11 somebody has done something wrong or made false


12 statements in terms of, you know, an

13 application, but, you know, the language that's


14 used is, let's say --

15

I'm chuting off.

You guys are here

16 to try to understand what I was saying here, or


17 not saying, faking a residency was no big deal

18 at that time.

I don't remember saying that to


I can't get

19 anyone at any point in time.

20 specific to any particular person.


21 Q.

Okay.

Well, Mr. Francis in this

22 article says that you said that to Peter


23 Heimlich, correct?

24

A.

He says that according to Heimlich, I

25 said that.

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Q.

Right.

A.

And puts quotes around it like, yeah,

3 definitely I said it.

Q.

Right.

It's in quotation marks as if

5 it's a direct quote from you, isn't it? 6

A.
Q.

That's the way I read it. Okay. Now, let me ask you this: Do

8 you remember how many times you talked to

9 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 that

15 conversation took place?

You know, it was a while back and

17 it's hard for me to talk to anybody for just a


18 minute or two, but I don't think it was a long 19 one.

Probably, you know, I don't know, my best

20 guess would be anywhere from ten to twenty

21 minutes. Okay. Did you talk to Mr. Francis

23 subsequent to the publication of that article?


24
I

A.

You know, I think that I did, and as

25 best that I can recall, y o a know, I was aware

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Page 16
1 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 -- I

4 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 reading


8 the headline and the context within which 9 things were placed and which the context of The 10 Board and their operations were placed and not
11 being too happy about it.

And my recollection

12 is that I did phone him and talk to him and

13 say, you know, we hadn't talked about this 14 quote or, you know, indirect quote and so
15 forth.
Q

Did he never ask you to confirm or

17 disaffirm ---

18

A.

And I wasn't too happy, expressed my That

19 displeasure at the whole of the article.

20 was basically the conversation that I think


21 probably would have on1.y lasted for five
22 minutes.

Did you have a particular


24 characterization for the article that you had
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25 conveyed to Mr. Francis?


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Page 17 Well, I was -- I would say I was


2 disappointed, felt that it was inaccurate, 3 certainly, in terms of inaccurate as to how the

4 Board approaches their business, kind of like


5 what I was trying to impart, maybe not being 6 all that articulate, but saying that, you know,
7 that's not this Board, you know, in terms of

8 the Board taking interest in somebody making


9 false statements in any type of context.

10 That's not their record.

And that's kind of my

11 recollection, was in the space of that five


12 minutes, I tried to make that point. Q.

At any time during the conversation

14 you had with Mr. Francis prior to the article


15 being published, died he ask you to confirm or

16 deny that you had made the quoted remark to 17 Mr. Heimlich'? 18

A.
Q.

No. Okay. Did he tell you that he

20 intended to publish that statement?

21

A.
Q.

No.
In your conversations subsequent to

23 the publication of the article, did you contact 24 Mr. Francis because you were upset about the
25 publication of the article?

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Yeah.

It was probably as much an At the same

2 emotional reaction as anything.

3 time, I think I was contemplating the

4 possibility of writing something in response,


5 you know, to this article, but obviously by
6 some of the statements here, I think that it

7 becomes very difficult to do something like


8 that.

And I was also oft reminded when I was

9 at the Board to not get into frays such as

10 those with people who I feel or staff feels has

11 treated us poorly or unfairly.

12

Q.

Okay.
And so there was a judgment made at

14 that point not to go any further with that.


l5
(1

I
1

In fact, if you had received a

16 complaint from someone about a physician faking

1 17 a residency, what would be the proper protocol


18 that the Board would have followed? Well, first off, I would say that I'm 1 l9 20 not an investigator myself, you know. That
21 wasn't part of my role at the Board.

Did I get

22 involved in various complaints?

Sure.

I mean,

23 I was aware of things and, at various times,

24 dependent upon the nature of the complaint or

25 what was happening, I may talk to a number of


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Page 19
1 different people involved in the complaint or

1;
i'

2 the investigation.

So, you know, if you want to talk

4 generally about sonlebody who made a false 5 statement on an application or a residency or


6 something that was possibly grounds for 7 disciplinary action by the Board, that would be

8 filed as a complaint and investigated,


9 following, you know, an initial triage as to 10 verify whether or not it's something that we 11 could legally investigate.

12

Okay.

The article further states, I

13 believe, that you had quit. responding -- you

14 cut off responses with Mr. Heimlich.

Did you

15 ever quit responding to Mr. Heimlich or 16 Mr. Francis?


17

A.

Well, I think that that -- you are

18 asking two different questions.

Okay.
20
Y-ou are asking -- I mean, you are

21 asking of two different people and you can ask 22 of five or ten different people and you are 23 kind of roundabout getting at whether I've ever
24 had a conversation with, you know, those
25 people.

You can extend it to illogical

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f

Page 20 1
[

1 extremes.

So you ask me about, you know, Tom

I
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i

2 Francis, he's a reporter, you know, they wrote 3 an article, I'm quoted in this article;

4 obviously talked to him.


5

Q.

Right. In that respect, I don't see a

1;

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problem in me telling you, yes, I talked to Tom

II::
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8 Francis.
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1:
Okay.
!

I'
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10

A.

But people that aren't -- I don't

1:
I.

11 know how you -- I'm trying to tell you that


I

1 12 people that aren't explicitly identifiable as


13 me talking to them in some other context, I

1;
1

14 just feel like, certainly in this matter, that

15 that's something I can't go into. 16

J understand.

Let me ask you this

17 question:

In your experience as executive

1 8 director of the Ohio Board, did the Ohio Board

i
t

19 ever take action against any physician for

) 20 falsifying crederltizls?

.Yes.

Can I clarify an answer to one

i 22 of my

earlier questions?

Just so you have -Would

Let, ne ask you this question:

I!
I

24 that be public record?


25
A

Oh, yes,
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1 I

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Page 21 i; 1 are out on the websife.

You can go to

2 n e w s l e t t e r s a n d t h e y would have listings, and

3 you can ask the Board and they would give you

4 listings of all the years.


Q.

So any disciplinary action taken

6 against a physician for falsifying a record


7 would be accessible to the public?

Yes.
9

Q-

Go ahead.

You wanted to explain

10 something?
1 w a n t e d t-o say in t e r ~ n sof w h a t I

12 did in being involved in investigations and so

13 forth, I have no authority to close complaints


14 under the statute as t h e supervising members of 15 t h e Board d o .
16
general.:^,

in terms of cutting off

1 17 communications people involved in / complaints so forth, you know, it couldn't


with

18

and

19 b e -- you know, I couldn't go and shut down a

20 complaint and close it and theE end some type

1
I
I

21 of relationship that way.


22
Q.

Okay.

In your conversations with Tom

1I 23 Francis, did he ask you at any time if any

i
t

24 action had ever been t a k e n b y t h e Ohio Medical

1 25 Board against Dr. Patrick?

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Page 22 Gosh, he may have.


2 could.
3

Yeah, very well

Would you have answered that question

4 or would that have been something --

A.

No, that would have been public

6 record if we had taken disciplinary action. Q.

In your conversation with Torn

8 Francis, after the article was published, did 9 you have any conversat.ion -- excuse me, did the

10 issue of deadlines come up?


1 1 A.

Well, again, this is as best I can


You know, I'm under oath and it's my

12 recall.

13 recollection that I called and talked to him

14 and did this.

I will admit to it being, you

15 know, three y e a r s ago or whatever and -Sure .


17
i:.
I '

A.

-- being somewhat sketchy, and I

rl

18 don't have any type of records that I can go

19 back to to verify personally.

But my

20 recollection is that I did speak to him and. did 21 question him about not having an opportunity 22 to, you know, respond to things that he is 23 saying, or sonleone is saying that I said.

24

Q.

In respocse, did he tell you he had a

25 deadline to meet?

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Page 23 j,
I

And - - I'm sorry.

And yes, my

2 recollection was his response to me was

3 something a k i r ~to, you know, there's a lot in


4 this article, I had deadlines to meet. 5 couldn't get back to you, kind of I recall him
6 as being somewhat apologetic in response, but

7 not giving me very much answer in terms of, you


8 know, the whole of the artic1.e and what

1I
/

9 direction I seemed to think it was taking in


10 terms of headlines and so forth. l1
Okay.

I
I/

Let me show you what has been


This appears to be an

12 marked as Exhibit 4M.

13 article published by the Cleveland Scene on May


14 4, 2005, by reporter Chris Maag.

1I

I believe you are also quoted in this


17 article,

bring

Do you

18 remember talking to Chris Maag about this

1
I

19 article?

20

A.

I kn~w of the article.

I've read it

21 before.
I

I haven't read i t for some time, and I

22 believe t h a t Mr. Maag was present outside a

23 legislative hearing at the time and that he

11 24 talked to

me briefly at t h a t time.

Whether he
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2 5 t a l k e d to me a h o u t it on the phone or n o t ,
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1 can't recall, b u t my inclination i s to think I

2 didn't talk to him over t h e phone, t h a t I just


3 talked t o him that one time when we were here. 4 But it's p o s s i b l e I talked t o him on t h e phone

5 too.
6

In your conversation with Tom Francis

7 prior tc the publication of the article, do you


8 recall telling -9

A.

Back to Tom Francis?


Yes.

Okay.

Do you recali telling Mr. Francis any


13 specifics about. the investigation process,

I I
1
i

14 about the Board processes, or anything of t h a t

Ii
/

15 sort t h a t are not published in his article?


You know, I kind of do. 1'7 again, as best as I can recreate a
You know,

18 conversation, and it's not all t h a t great of an

I1 2 0 t h a t

19 ability, as Lo all that is asked, but I t h i n k

i1

there wa:i

sane discussion in generalities

2 1 how the Board goes about its operations, you

22 know, what they are allowed t o do and s o forth.


2 3 And t h e r e may have been some discussion

'I
1
i

24 generally, like, you know, in terms of what


2 5 would t h e Board do i n t h i s

or this type of

Case 1:05-cv-02791-LW

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Page 25 of 91

Page 2 5

,:
\

1 situation.

But 1 can't honestly recall whether

iI
1
I

3 or not that wzs a long conversation or I'm just 4 melding other conversations with other

5 reporters - 6
7
(2

Okay.

-- at that time and over the years.


Do you recall whether the

9 conversation with Tom Francis addressed the

I I

11 credentials b y a p h y s i . c i a n ?
12

1
I

T j n s t can't recall.

I1
i1
i 1
I

Okay.

Can you -- do you know whether

14 or not the public record would reflect whether


15 or not the Board ever took any disciplinary

16 action against Dr. Edward Patrick?


17

A.

Okay.

I'm sorry.

I wasn't listening

1
/

18 to your question because I was reading


19 something i n here that kind of goes back to the
2 0 past question.
G o ahead and respond to the past

1I
I

22 question and 1 will ask my question agzin.


MR. ZIRI'4:

Which past question are

1I

24 you responding to?


THE: WITNESS :

About ny conversations

Case 1:05-cv-02791-LW

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Page 26 of 91

Page 2 6 1.

[
I

1 w i t h , o r what M r . -- what M r . F r a n c i s may have


2 asked m e a h o c t g e n e r a l l y a n d a b o u t t h e

3 p r o c e s s e s and s o forth.

In the article,

4 b e c a u s e I saw m y name here, i t s a y s ,

"Dilling

5 did say t h a t i n 1976, the year t h a t Patrick 6 s h o u l d have corn~leteclh i s r e s i d e n c y , 7 post-gradnate

t r a i n i n g was n o t a r e q u i r e m e n t
And that c e r t a i n l y i s

Ii

8 for licensure."

9 s o m e t h i n g that I r e c a l l saying.

I've said i t

1 0 t o a couple p e o p l e , you know, who h a v e a s k e d m e

11 q 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

I1

1 2 s a i d t h a t I s a i d i t or. this end, I would s a y ,


1 3 y e a h , I m u s t h a v e had some c o n v e r s a t i o n w i t h
1 4 him a l o n g t h o s e l i n e s .

/I

i
i i
I

T h a t h e l p s m e a little okay, yeah, I

15 b i t w i t h my menory, t h a t , w e l l ,

1
/

1 6 think w e p r o b a b l y d i d t a l k f o r a few minutes

17 a b o u t that..

I
i

18

Does t h a t s t a t e m e n t . 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 you may have t o l d

/ 20 M r . F r a n c i s ? 1

1 1i
I

21

No, b u t s e e ,

that's a general

2 2 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 c

2 3 p e r i o d o f tirne, a n d I w ~ u l dh a v e t r i e d t o
24 a n s w e r t h a t for a n y b o d y .

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

Case 1:05-cv-02791-LW

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Page 27 of 91

Page 27
1 question I asked a few minutes ago.

I apologize.

That's okay.

The question is, do you

4 know if the public record, non-confidential


5 information, reflects whether the Ohio Medical

6 Board ever took any corrective or disciplinary


7 action against Dr. Edward Patrick?

Yes, that's public record. Do you know if the public records

10 reflect whether they ever did take any action


11 against Dr. Patrick? 12

As of the time I left the Board,


I haven't followed him since.

13 yeah, I know.

What was the case as of the time you


1 5 left the Board?

At the time that I left the Board,


17 there had been no disciplinary action ever

18 taken against Dr. Patrick.

That is something

19 that is verifiable as current status on the

20 Board's website.

Okay. MR. N.J. BLANKENSHIP:


23 further questions, Mr. Dilling.

Thank you.

CROSS-EXAMINATION
25 BY MR. ZIRM:

Case 1:05-cv-02791-LW

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Page 28 of 91

Page 28 :

Mr. Dilling, I get a chance to ask

2 you some questions as well.

A.
Q.

No problem.

That's why we are here. My name is Ken Zirm.


i

We met briefly.

5 I represent the Cleveland Scene and Tom Francis

6 in the lawsuit filed against them by Dr.


7 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


i

1 0 title was enforcement coordinator.

11
12

What did that job entail? It's a lot like what I do today.
i
4

13 There are some

--

a lot of similarities, but But it's

1 4 there are some differences too.

15 investigating -- I shouldn't say investigating.


I

16 You're an attorney for the Board.


17 an investigation.

There's been
I

At that time I was one of

18 only two enforcement coordinators and we were

19 about half the size of the Board today, if


2 0 that.

21

So a big part of my job was then to

2 2 work with the staff to present the secretary


I

2 3 and supervising member with an analysis, a 2 4 legal analysis of where we were in terms of

25 being able to prove or not prove a disciplinary


1

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Case 1:05-cv-02791-LW
*

Document 120

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Page 29 of 91

.
Page 29
1 case against a licensee.
2

'
i

Q.

How long did you hold that position?


i

I was in that position until about

Okay. And with that position, I would say


7 that because it was such a small, you know,

I
I

8 place and that, obviously, we had other duties 9 and so forth, I was given almost from the start
10 a lot of, I guess, leeway in terms of doing
s

i
I

11 other things that, you know, the Board needed


1 2 help on.
I

For example, one would be acting as


14 kind of a liaison with the state government,
1 5 and by necessity I probably from the beginning

16 talked to reporters and so forth.

We had

17 somebody on Board that did more of that, but

18 certainly when you had a specific case, you


1 9 ended up having to talk with the press, you

20 know, at times, because you had, you know, some


21

information that might be relevant. And in 1 9 9 5 I believe that they made

23 me a government affairs officer or some title

24 like that, and while I still did some, I


25 believe, enforcement work at that time, the

Case 1:05-cv-02791-LW

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Page 30 of 91

Page 30
1 idea was to push me more in the direction of

2 working with committees, drafting rules, you


3 know, things like that.
4 devoted to that.

Most of my time was

And then in, oh, I think like a year

6 or two prior to me becoming director in 2000, I

7 was made public and government affairs officer.

8 That was a supervisory position, because until 9 that time I had not had direct supervisory 10 experience, and I believe my role there was to
11 supervise, geez, I think some executive staff

12 people.

You know, I had some supervisory staff And

13 role, but it wasn't for that long a time. 14 then the director at that time was Ray 15 Baumgardner and he retired, and so I had

16 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, generally

19 what is your role, if any, in the investigation

20 of the complaint against a physician? 21


A.

Little or none in terms of direct


I think that if you are to go

22 involvement.

23 back and talk to certain staff, a criticism

24 would be that I was involved in a lot of


25 different, you know, things and so I would ask

Case 1:05-cv-02791-LW

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Page 31 of 91

Page 31
1 questions, and at the same time we were even

2 smaller than we are today.

They have gotten,

3 you know, more staff in the past two years 4 since I've left, and so it became necessary at

5 times to talk to complainants, talk to

-- or

6 review complaints, you know, in terms of what

7 others had reviewed, and perhaps give my view

8 to the secretary and supervising member, and to

9 staff.

It wasn't a regular part of my job,

10 didn't take up much time in terms of -- you 11 know, I didn't get involved in that many cases, 12 but there were occasions which I did.

The same

13 with talking to the press or even picking up 14 the phone and talking to anybody; I was a 15 pretty accessible person in terms of, you know, 16 I would give anybody my telephone number, my 17 direct line, and people would call.

And when

18 you called and you had a question, I tried to 19 answer it for you, you know, trying to give you 20 a little bit of feel.

Sure.

When you were executive

22 director, how big was the investigative staff 23 of the State Medical Board? 24

When I was the director, I think we

25 were at about 20 investigators, and they would


I
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ma*~ ~

Case 1:05-cv-02791-LW
I

Document 120

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Page 32 of 91

Page 32 1 be located throughout the state, worked for the


2 most part out of
3 office.

-- their home was their

We had two investigator supervisors,

4 and then we had an assistant director who was

5 over, you know, those two investigators.


6 Q.

I'm sorry.

Two supervisors?

Two investigator supervisors, one for


8 the north and one for the south region, and

9 then there was an assistant director who was

10 accountable for those persons.

And then there

11 was an assistant executive director who was


12

accountable to all of that chain going down. And would every complaint be assigned

14 to somebody in the investigative staff?


15 A.

Not every complaint.

The Board got,

16 geez, when I left, probably more than 3,000

17 complaints a year.

It had steadily,

18 incrementally grew, and there's a triage that


19 occurred through a staff attorney, for the most
20 part.
21

There were certain protocols, certain

things went certain places, so they wouldn't

1 2 2 all go out for an investigator to actually go

23 out and investigate a case.

You know, it

24 depended upon the nature of that complaint.

25

Did you ever participate in the

1 triage, the initial triage of a complaint that

2 came in while you were executive director?

Participate would be

--

is kind of a

4 broad word.

I'm sure that I did participate in

5 some way in some complaints, if it was an

6 especially noteworthy complaint in terms of the

7 egregiousness of the complaint or the notoriety


8 that perhaps a complaint had already received
9 before it got to our door.

Somebody might have

10 then said, hey, Tom, this just came in, what do 11 you think of this?

Or I would say, let's move

12 this.

Or I would get a phone call from

13 somebody and say, hey, we need to move on such 14 and such a complaint.

So something of that

15 sort, but not something where I would regularly


16 review something as it came through.

17

Q.

And I take it, I mean, you started That's kind of what you

18 out in enforcement.

19 did initially, correct, triage work on these

20 complaints?

Yes, sure, in some way, shape, or


22 form, right.

23

Now, if you had the occasion to talk

24 to a complainant or maybe even talk to someone

25 that had knowledge about a complaint, would

Case 1:05-cv-02791-LW

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Page 34
1 you, as a general matter, produce notes, memos,
2 something that would end up in the file

3 regarding your conversations with people?

I would say the answer is -5 generally, I would say yes.

It would probably

6 depend on the nature of that information, you 7 know, how long the call was, what they were

8 imparting, whether it was just somebody who is


9 saying the same thing that they may have to an
1 0 investigator and they were just

-- had some
If I felt

11 displeasure that the complaint wasn't going as


1 2 fast as it should be and so forth.

13 like all that information was already a part of

14 the record, then I probably wouldn't put all 15 that much, or see all that much urgency to say,
16 hey, talked to so-and-so and such and such. 17 Would I today?

Probably so.

It seems like we But

18 have gone to more recordkeeping.

1 9 generally, you know, I would say I would, yeah.

20

Q.

What is the record retention policy

21 of the Medical Board on investigative files?


22 A.

You know, they have a records

2 3 retention schedule and, you know, I would have

24 to rely on that as the answer to that question. 25


Q.

Do you know what it is, as you sit


-

~ i~l )~ ra ; ? e f i l ( & C j i l i ~ ~ ! ~ t t ; t 1 1 $ l ! L ~ - ~ : : + ~ ~ : l i ~ L7 i& i ki l . i ! l i i ~ , ~ i r . l . * r j i j : $ ~ k e i t 1 L i l l ~ C ~ ~.~.~;.~11~!1!Lfd,.~~~;:~I:Il1~~~~Ui,tI>~, :. ~+-hrn(l&--i~~. I . . - - ~ ~ ~ ~ ~ ~ ~ . ~ I J + ~ ~ ~ ~ ~ ~ $ ~ ~ ~ ; ~ ~ ~ I I I ~ ~ , I I ~ ~. ~ r +~l c ~r~ . l -. . - a- , -. l~l ~ L ~I> L , ~I ~L~ ~ ~ ~ L. C . ~ t !~

Case 1:05-cv-02791-LW

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Page 35
1 here today?

No.
3 you.

Today, you know, I couldn't tell

I would say that obviously the section

4 that we talked about before shields those


5 investigations, even when they are closed, or
6 at least that was --

Q.

I knew we were going to get to it.

8 wanted to know how long it exists.


9

A.

I would say that our records

10 retention policy keeps things longer than, say,

11 the Nursing Board does.


12

I'm confident in that. When you say uour,w

MS. PFEIFFER:

13 you are talking about the Medical Board?

THE WITNESS:
15 Medical Board.

That's right, the

You know, again, I've never


I tried.

16 quite left there fully.


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 recently 21 about, you know, just what that was, but, you

22 know, my understanding is that when they enter


23 into an agreement that, say, settles a case and 24 it ends up in disciplinary action, that they

25 are permitted by the records retention schedule

Case 1:05-cv-02791-LW

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Page 36
1 to delete that information, get rid of that

2 information, pretty much in its entirety.

Now, I would say that even with that,

4 that doesn't mean that you always go and, you 5 know, get everything.

There had to be some

6 judgments, I think, being made as to what

7 should be retained just in case somebody


8 doesn't abide by the agreement, the terms of
9 that, something else comes up and that, and so
10 we've had some discussions along those lines.

11

Q.

Okay, Whereas I don't see that was all that

13 much of a pressing problem over at the Medical


14 Board.

That was my recollection. Mr. Blankenship asked you some

16 questions about what the public record shows as

17 far as physician discipline and, for instance, 18 if Dr. Patrick had ever been disciplined by the 19 Ohio State Medical Board,

That would be a

20 matter of public record?

Yes,
22 Q.

What more would be in the public

23 record, other than the fact that a

-- what

24 facts about a physician's disciplinary action


25 would be public record?

Case 1:05-cv-02791-LW

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Page 37 of 91

Page 37
1

Sure.

If there was a notice letter

2 sent to initiate the 119 hearing process; once


3 that's issued, that becomes a public record.

4 Then a lot of the stuff that happens after that 5 is public record; if you go to a hearing, the
6 hearing transcript.

Obviously when you throw

7 patient records into the mix, there's

8 confidentiality provisions that protect that. 9 The identity of the complainant is protected, 10 you know, within that process. But you get Some

11 pretty much an idea as it goes through.

12 cases are settled, you know, as well so you 13 don't have that.
14

Now, when an action is taken by the There's a

15 Board, that order is public record.

16 report recommendation that's drafted by the

17 hearing examiner, public record.

The Board

18 debates the discipline in open session, which

19 they technically do not have to do that under


20 the law, and they made a change to start doing
21 that sometime in the mid '80s. I think, you
22 know, around '87, I think that they started

23 doing that, you know. In a matter of contrast, the Nursing


25 Board does not deliberate in public session.

Case 1:05-cv-02791-LW

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Page 38
1 So what you will hear is this report and

2 recommendation, and they will, you know, be


3 discussing why they are making their choice. 4 It's almost like being in a room listening to a

5 jury, you know, that debates.


6 public record.

So all that's

The notice letter, does that, as the


8 name would imply, notify the physician of the

9 nature of the charges against him

--

Yes.

-- or her?
And the opportunity to be heard on
13 those charges.

Why did you leave the Medical Board? Well, there's probably a lot of
16 personal reasons, you know, just in terms of
17 who I am and where I was at the time, but I 18 really loved the Medical Board.

I loved

19 working for them.

But my wife and I, we had a

20 child in June of 2004, and I announced to the

21 Board about October, I think, that I wanted to

22 leave.

I talked to one or two of the Board

23 members, you know, about it, just prior, you

24 know, to doing that.

But if you're a parent,

25 you know it is very demanding work, and my wife

Case 1:05-cv-02791-LW

Document 120

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Page 39 of 91

1 and I had a number of miscarriages, and I just

2 wanted to be with him.


3

Q.

Okay.

Let me show you a couple

4 documents. 5

One has been marked Exhibit 57. I tried to pick up where

MR. ZIRM:

6 we left off, Jeff

.
Okay.

MR. N.J. BLANKENSHIP:

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. It appears to be a letter to Dr.

Q.

18 Patrick from Mr. Whitehouse indicating that


19 it's a response to his letter requesting
20 verification that post-graduate medical
21 training was not required for physician

22 licensure during the years 1975 and 1976,


23 correct?

Yes. And you agree with that statement?

Case 1:05-cv-02791-LW

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Page 40 of 91

Page 40 As far as I recall, yeah. 2 understanding of the law, yes.


3 Q.

Is it your understanding that the law

4 has changed in that regard to present day?


5 post-graduate medical training now a

6 requirement for physician licensure? Yeah.


8

Do you have any idea when that

9 changed?

You know, it was in the early


11 Do you want to know why it changed?

12
13
A.

Sure. The Board used to approve foreign

14 medical schools, you know, like it was okay,


15 you can be licensed under this school and that

16 and disapprove them.


17

There was a, I believe, federal

18 lawsuit, which the Board was a named defendant, 19 you know, nationally going after the Boards for

20 discriminating against the foreign medical


21 schools and so forth, and so the legislature

22 looked into this question and they changed the

23 law so that, kind of coupled with a couple

24 paths to licensure, supposedly were equivalent


25 and I believe are, but to the best of their

Case 1:05-cv-02791-LW

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Page 41 of 91

Page 41
1 ability, without the Board, you know, getting

2 the Board out of the approval process of

3 schools, so that today if you are a graduate


4 from an ACGME accredited school, which are
5 generally United States schools and Canada, you

6 need to have one year of post-graduate

7 training.
8

And if you are from a non-ACGME

9 accredited school, then you need two years, or


10 through the second year level.

Not just two

11 years, you have to go through the second year

12 level.

And also with that comes you have to


14 pass the exam, the USMLE, and then, of course, 15 there are all kinds of grandfather provisions

16 and so forth.

And you have to graduate from You have to show

17 one of those schools too. 18 that. 19

But that's probably pretty much the That was what was changed. They

20 three prongs.

21 call things different things too, like I'm

22 using the word post-graduate training.


23 to be

It used

-- like you talked about an internship


Right. Is the Ohio State Medical

24 first year out and residencies.

Case 1:05-cv-02791-LW

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Page 42
1 Board at all involved in the accreditation of

2 the post-graduate training programs?

Yeah.

Pretty broad question. Not

I will

4 try to give you the short answer. 5 directly.

You know, the statute deems that if But

6 they are, you know, you do certain things.

7 if they are a member of the Federation of State


8 Medical Boards, who does have some role, you

9 know, in working with those type of bodies, you


10 know, towards the formation of their policies
11 and so forth, almost as a lobbying or advocate
I

12 on behalf of all those Boards.

SO in essence,
!
I
I

13 the Boards, individual Board can have some 14 impact upon those systems and how things work

15 out, but it has to be done through the politics


16 at those levels.

17

I see.

And generally, though, in the


i

18 U.S. today, the accrediting organization is the 19 ACGME?

20
21

For the schools, yes.


1

Q.

Is that also the major accrediting


I

22 organization for the post-graduate training

23 programs?
24
A.

Yes.

In fact, actually, you were


I

25 asking me two different things and I was kind


, ,j
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-

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Case 1:05-cv-02791-LW
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Document 120

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Page 43 of 91

Page 43
1

1 of putting them all together in my mind here.

2 I'm trying to remember all the different


3 acronyms.

,
1

The ACGME is Accreditation Council

1 i

4 for Graduate Medical Education, so, therefore,


5 I thought that they were for the schools.

Now

6 maybe I'm picking up the different -- the wrong

j
i

7 one.

Maybe they are the residency.

It's been

8 a couple years and now I'm out and I'm trying 9 to think of the, you know, who the different

:!

--

'I
I

10 because it is two different bodies.


11 trying

I'm

-- I'm sorry that I'm mixing it up, and


I

12 I can't go back there right now.


Q.

:t

That's all right.

Any knowledge that

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 moment


19 to look at this?

MR. ZIRM:

I have an extra. Thanks. See, they are talking

MS. PFEIFFER:
THE WITNESS:

23 in this letter about the ACGME, post-graduate 24 and residency program.

I'm pretty sure that is

25 the case.

I'm trying to remember when I give

Case 1:05-cv-02791-LW
t

Document 120

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Page 44 of 91

Page 44
1 you those two differentiations between U.S. and
2 Canada schools and the foreign schools, all of

>

3 that was correct of what I said.

But I

4 probably said ACGME for that, and I'm trying to


i

5 remember the correct acronym.

Q.

Okay. Yeah. Have you had a chance to review this?


i

9 I guess the first question, that's a memo dated

10 June 6, 2 0 0 6 ,

so this is after you left the


I

11 State Medical Board, correct?


12 13

A.

Yes. It's written by Kay Rieve. Is that

t~

14 how to
15
16

-Kay Rieve. Kay Rieve. You worked with Kay at

Q.

17 the Medical Board? 18 19


Q.

!
I 1

Yes. And it is addressing the issue of

2 0 whether

-- apparently whether a training

21 certificate was required in Ohio to take part


2 2 in a residency or internship or fellowship?
I i

23
24

A.

Uh-huh. Do you have any knowledge about that

I
I

25 subject?
I

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Case 1:05-cv-02791-LW

Document 120

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Page 45 of 91

Page 45 Yeah.
2

Yes, I do.

Q.

And basically this memo is saying

3 that prior to

-- since July 1st of 1999, in


--

4 Ohio, residents or interns needed to have a

5 training certificate
6

A.

Yes.

-- to participate in a residency or
8 internship or fellowship?

A.

Correct. It's saying prior to July 1, 1999,

11 that was not required?


12

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 training 1 7 certificates called temporary certificates, 1 8 that there was a name change?

Yes, I believe so.


20

Q.

Okay.

And what's your understanding

2 1 about

-- when you say that they weren't

2 2 mandatory prior to 1999, what's your 2 3 understanding as to what, if anything, was

24 required for someone in Ohio to participate in

25 a residency program?

Case 1:05-cv-02791-LW

Document 120

Filed 02/07/2008

Page 46 of 91

Page 46 Okay. You will understand from, you

2 know, my history with the Board and so forth, I


3 was involved in a lot of the legislative 4 proceedings and so forth

--

Right, sure.

-- that went into this and the


7 Board's work and that. 8 Q.

Because in July of '99, when the law

9 changed, that's about the time you had the


10 governmental affairs position?
11

A.

Right.

Again,

I have always, except

1 2 when I was the director and somebody else did 1 3 that work, but I still was involved, but there 1 4 used to be a program, I can't tell you what it 1 5 dates back to, but this temporary

16 certificate --

Yes.

-- it was almost treated as a, you


19 know, a voluntary thing. 20 for it.

The statutes allowed

I can't tell you exactly how that

2 1 statute was worded, but it was interpreted by 2 2 someone, be that the Board, AG office,

23 combination, the Board itself, you know, that

24 it was treated as a voluntary thing, and some


2 5 programs would tell their students, go get
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Case 1:05-cv-02791-LW

Document 120

Filed 02/07/2008

Page 47 of 91

1 these.

Now, I will tell you that when you

3 applied and gave your name and what program you

4 were in, that's about all it was, really.


5 mean, I'm giving you generalities, but they

6 basically put your name next to a number and


7 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 those 11 certificates in terms of, you know, does this 12 really look like this came from Ohio State or 13 some other program? We know who is running

14 different programs, who did it, you know, over


15 time, that type of thing.

There had to have

16 been something like that, because you are not

17 just handing out temporary certificates. 18 don't want to be too flip about, you know, what 19 went into it, but it's nowhere near what goes
20 into the process, which is application oriented

21 and so forth, by individuals, that occurs post


22 July of 1999, where everybody had to do it.

23

Q.

So your understanding is that prior

24 to July, 1999, it was pretty much up to the


25 program as to whether they were going to

Case 1:05-cv-02791-LW

Document 120

Filed 02/07/2008

Page 48 of 91

Page 48
1 require a temporary certificate?

Right. And not up to the Ohio State Medical


4 Board?

Right. The second part of Ms. Rieve's memo


7 indicates that the Board is not in a position
8 to individually verify expired training

9 certificates.

Is that your understanding as

10 well? 11
A.

Yeah.

I couldn't tell you exactly

12 whatnot in a position, you know, whether or not


13 records retention is we get rid of things or 14 whatever, but yeah, I will go by what she says.

Do you have any knowledge as to what


16 the procedure was as to retaining training 17 certificates issued by the Board?

No, I'm sorry, I can't recall. 19


Q.

Since July of 1999, would it be a

20 potentially -- a potential violation of Medical

21 Board rules and regulations to participate in a


22 residency program without a training
23 certificate?

24

Yes. Are you familiar with any

Case 1:05-cv-02791-LW
I I

Document 120

Filed 02/07/2008

Page 49 of 91

Page 49
1 disciplinary procedures that have been

2 instituted for that purpose, based on that?


3

A.

To the best of my recollection, yes,

4 we have -- the Board has taken disciplinary


5 actions for persons practicing without that

6 certificate, and those would be public record,


7 and that would be pretty easy to do

a search,

8 you know, of that.

Q.

Okay.

We have issued

-- the

10 defendants have issued a subpoena on the Ohio


11 State Medical Board in connection with this

12 case.

I am going to hand you Exhibit 59 and

1 3 represent to you this is the packet of

14 materials we received in response to that

15 subpoena.

I won't necessarily have you review

16 the whole packet, but I'd like to ask you a


1 7 couple questions about some specific documents

18 in here.

If you would just turn to the second

19 page of this exhibit, the title is Application

20 for Endorsement of a Medical License by the 21 State Medical Board. Can you tell me what

22 endorsement licensure is?

23

A.

That would be persons licensed in

24 another state and they endorse their license,

25 you know, here.


. .-- - - - - - - u - - - u n . : - & L L ~ ~ ~ H ~ . ~ , ~ n n ~

It was, you know, one of those


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Case 1:05-cv-02791-LW

Document 120

Filed 02/07/2008

Page 50 of 91

Page 50
1 requirements.

The statute says if somebody has

2 been licensed in another state, you need to


3 prove this, this, and this, and you would go

4 through perhaps a more

-- you might have to

5 jump through a couple more hoops if you didn't 6 have that license previously.
I guess that was going to be my next

8 question.

Is it fair to say that the

9 requirements for licensure in Ohio were a


10 little less stringent for somebody that already
11 had a license from another state?

12

A.

Yes.

I think there was deference

1 3 granted to the other state having looked and

14 verified certain things so that you weren't


15 re-duplicating everything each and every time

16 somebody moved from state to state.


1 7 pretty common licensure device.

That's a

18

Q.

And this is actually a form, an

19 application filled out by Edward A. Patrick,


2 0 and if you look on the first page, there's

--

2 1 between the fifth and sixth items, do you see

22 where it says, Ohio State Medical Board issued


2 3 Certificate of Preliminary Education Number,

24 and then it's got a number and a date?

Case 1:05-cv-02791-LW

Document 120

Filed 02/07/2008

Page 51 of 91

Page 51

What is the Certificate of Maybe that's a dated

2 Preliminary Education?
3 term.

I was going to say, this document, 5 think, pre-dates even me being at the Medical 6 Board.

Q.
8 A.
9 context.
Q.

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

Okay. The -- you know, you had to prove, I

11

A.

12 think, through the back here, '88, 2000, or 13 whatever, that there was certain statutory 14 requirements, like 4731 in '05, '06, that you 15 have a high school diploma or equivalency and 16 you had to go to college prior to you going to 17 medical school.
I think that's the term, the

18 preliminary education term.


19

NOW, it seems to me that there is a

20 statute that refers to preliminary education,

21 that somebody needs to verify that or do 22 something, you know, with respect to that. 23 That's the best of my recollection. 24 Q. Okay.
I will not profess to be an expert on
f

Case 1:05-cv-02791-LW
1

Document 120

Filed 02/07/2008

Page 52 of 91

.
Page 5 2
1 that.
2
I
1

Let me ask you to turn a couple more At the top it will say form Roman

3 pages.

4 numeral five, Affidavit of Physicians.

Sure, yes. Is that a requirement that you are


7 familiar with?

Is that a requirement while you

8 were working for the Board?

A.

Yes.

It looked a little bit


i

1 0 different, but part of the process of licensure

11 would be, you know, getting different


1 2 statements from different places, like you work 1 3 someplace or somebody who knows you, you know, 1 4 verifies you, just like they did at the Bar.
15
i
I I

think I had to come up with three people that

1 6 said that I was sane or something, you know,

17 akin to that. 18 today.

I think that's still there

You know, you can verify, you know,


!

19 that, but again, to the best of my


2 0 recollection, yeah, that's something everybody

I &
$

21 has.
22

Q.

This form is apparently two


1

23 physicians that are, for lack of a better term,


2 4 vouching for Dr. Patrick here? 25
I
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Case 1:05-cv-02791-LW

Document 120

Filed 02/07/2008

Page 53 of 91

.
Page 53
+

Qo

And the form provides for them to

2 kind of insert how long he's been in the 3 practice of medicine, the applicant?

Sure. Do you see that? Yes. Qo It says, has been in the practice of
f
$'

8 medicine, in the top one, for the last 9 one-and-a-half years at Jewish Hospital,
1 0 Cincinnati.
11

Do you know whether this form

i 1

still has that requirement in it?


A.

12 13

No. Do you know what the purpose of that

14 is?
15

No, other than the fact that, you

1 6 know, again, given the best of my recollection

17 and abilities, sure, working with the Board,


1 8 that, you know, the processes have changed so
6

19 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 doctors


2 2 felt more comfortable if they were getting

23 something from somebody who had known them, you


2 4 know, in terms of their medical practice or in 2 5 terms of their training.
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Case 1:05-cv-02791-LW

Document 120

Filed 02/07/2008

Page 54 of 91

Page 54
1 mean, again, people, the term

2 residency, you know, I'm sure it meant


3 something different back in the '70s than it

4 does today.

You have to go back and talk to

5 people who were involved then and were involved

6 in that field, but that's kind of my

7 understanding of it.

And here, the practice of

I
1

8 medicine is the same if you were a student and


9 you were, you know, doing something, somebody

10 might have you as practicing medicine at that


11 point.
12

Whereas I, who supposedly knows more

13 about these different statutes, I would say


14 practicing medicine, you have to have a license
1 5 under 4731.4, and when you have that, you are

16 allowed to be practicing, blah, blah, blah. 17 So again, I think this probably was

18 something where, you know, it might even

-- you

1 9 might go through the minutes way back then and

20 find out if the Board says, this is what we

21 want, in terms of check out people's past


22 character and so forth.

I think there's

2 3 4731.08, that requires, I think, good moral

24 character.
2 5 licensure.

This was as a requirement for It's a grounds you can disapprove

Case 1:05-cv-02791-LW

Document 120

Filed 02/07/2008

Page 55 of 91

Page 55
1 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 there 4 on a few criminal convictions and so forth, and 5 said they didn't meet this, and this is part of 6 our denial process.

Q.

Were you aware of any time while

8 you've been with the Board that for foreign


9 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 of

17 Activities at the top?


18
19

Yes.
Q.

Is this a form you are familiar with

20 as part of the licensure application?

Yes.

Q.
22

It was required when you were

23 executive director?

Yes.

Case 1:05-cv-02791-LW

Document 120

Filed 02/07/2008

Page 56 of 91

Page 56
1 you are familiar with while you were with the

2 Board?

A.

Sure.

You know, you look for gaps in

4 time.

You look for why hasn't somebody been

5 working for, you know a year, oh, they were in


6 treatment for a year or they were in prison for

7 a year, you know.

It's amazing, but some

8 people leave out answers to some questions and


9 then they answer it this way and try to head

10 you around both ways, and they end up getting


11 caught in some type of false statement, for

12 whatever reason, and it is just pretty much


13 that.

It's something that you try to get a And

14 history of where that person was.

15 sometimes we would send letters, you know,

16 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 two 21 letters and going back three years, this guy we
22 better go back five years and so forth.

23

And again, if you go over the

24 continuum of time and you say what was the

25 Medical Board doing in 1970 when they had 15


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Case 1:05-cv-02791-LW

Document 120

Filed 02/07/2008

Page 57 of 91
#

Page 57 1 employees, you know, or whatever, you know,


i
1

2 versus what they have today, there's probably a


3 good deal of difference in terms of what they

i:

4 can do, you know.

And technology, you know,

I
I

5 that in and of itself allows you to go back and

6 so forth.

So it's always been there.

I would
1: 11

7 say that it was used in different ways, you


8 know, at different times because of all those

:
f
L

9 other factors. 10
Q.

So obviously you don't know what the

E
d

11 policy in the '70s would have been for

12 verification of information on this form, and

I
!

13 it sounds like what you are saying is, at least 14 when you were executive director, there really
15 was no set policy as to what would or wouldn't

1
I

1
!

16 be verified from this form? 17


A.

Right.

So that if I said generally

18 the Medical Board looked at this applicant's

II

19 licensure, activities, and so forth, and I


20 would be speaking, my response would be, a
21 general response, we looked into it, or the
22 Medical Board looked into it and

1
1
I

--

but I

23 couldn't swear to the details, how far they

,
S
I
n

Il

24 looked into it.


25
Q.

Okay.

If you look last

-- not the

!I
i!

Case 1:05-cv-02791-LW

Document 120

Filed 02/07/2008

Page 58 of 91

Page 58
1 very last, but towards the end, there's seven,

2 eight, nine pages that all look to be the same

3 but with different physician stamps at the


4 bottom left?

Correct.

Am I right in that these are members


7 of the Board that are signing off on this
8 particular applicant?
9

A.

Yes.

Certainly what it appears to

10 be.

And I recognize, you know, some names.

11 They weren't necessarily there when I was

12 there, but I've heard stories of different 13 people, yeah, heard names.
14 that.

Yeah, I recognize

So does the

-- well, this is

17 you were with the Board that for the granting

18 of an Ohio medical license, each Board member

19 checked off or signed off on each particular


20 applicant?
21

A.

Yeah.

And it's that way, you know, But the

22 today in somewhat of a different way.

1I 24 would be sent by staff, staff review these


23 Board does make a public motion where they

25 applications, and they met the legal

Case 1:05-cv-02791-LW

Document 120

Filed 02/07/2008

Page 59 of 91

Page 59
1 requirements under whatever sections, and Board

2 says, you know, aye.

They don't necessarily go

3 through and X off, you know, each one, but they 4 would make that type of motion.

To the best of

5 my knowledge, that's still occurring.


6

Okay.

I'm going to hand you a

7 document that I've marked as Defendant's


8 Exhibit 61 and ask you to take a moment and 9 review this document, if you would.

10 11 Ken?

MR. BLANKENSHIP:

Did you skip 60,

MR. ZIRM:

Did I? Your last one is

MR. BLANKENSHIP:

15
16 happen.
17

MR. ZIRM:

I knew that would probably

I did, but I will get back to it.

THE WITNESS:

Okay.

Is it okay if I

18 just kind of glance over it?


19
20

Yes. MS. PFEIFFER: Is it okay if we take

21 a short break?
22 (A brief recess was taken.)
Q.

23

When

--

right before we broke,

24 Mr. Dilling, I handed you what has been marked

25 as Defendant's Exhibit 61, which is a copy of a

Case 1:05-cv-02791-LW

Document 120

Filed 02/07/2008

Page 60 of 91

Page 60
1 letter sent to you September 6, 2002

-- which

2 purports to be a copy of a letter sent to you


3 on September 6, 2002.

You will see the copy we

4 have is redacted.

It doesn't indicate who the The first question

5 sender of the letter is.

6 is, can you confirm the receipt of this letter?

A.

Yeah.

I would say that that's within

8 the realm of the 4731.22 confidentiality 9 provision.

Okay. THE WITNESS: 12 13 yes. MS. PFEIFFER:

Am I correct?
I'm fine with that,

So basically you are asserting a


15 privilege not to answer that question

--

16

A.

Yes.

-- based on the statute?


Yeah. I'm sorry. Let me ask you if I can, 20 Mr. Blankenship asked you some questions about
21 Peter Heimlich.
22

Have you ever had a

conversation with Peter Heimlich that did not

23 have to do with the investigation of a


24

physician complaint?
A. I can't recall that.

25

Case 1:05-cv-02791-LW
*

Document 120

Filed 02/07/2008

Page 61 of 91

.
Page 61 1 Did there ever come a time when you
2 learned
3

-- do you know who Peter Heimlich is?


I've been on the Internet, you know,
I have

b
I

A.

4 and I've read different things.

5 certainly seen that name plenty of times.

I'm

6 not limiting myself in that answer, I'm just


I

7 telling you I'm aware of public nature of


8 statements by a person purporting to be
9
Q.

--

And there have been, not just the

10 article in Scene but there have been articles 1 1 published in Cincinnati where Peter Heimlich is

5
I

12 identified, as well as his father Henry


.I
1 3 Heimlich.

I'm guessing you are aware of who

1 4 Henry Heimlich is?

15 16 Q.

Yes. Did there come a time that you became

17 aware of the fact that Peter Heimlich, at


i

1 8 various times, has used pseudonyms?

!
3

19

I have read that on the Internet,

'1

20 but you understand that I can't answer


21 questions of information I received pursuant to

I
i

22 an investigation.

I.

23

Q.

That's why I'm trying to ask them

24 rather broadly.

25
LH---II_-~

I'm just trying to help you guys out,


--.-

Case 1:05-cv-02791-LW
3
I

Document 120

Filed 02/07/2008

Page 62 of 91

Page 62
1 to understand, to answer the best I can live

2 within the law.

So by virtue of my response, I

3 just want you to understand that it's not -4 it's limited to that context.
5

Q.

I don't want to waste anybody's time


If I went through this letter, which

6 here.

7 refers to other documents being sent to you or


8 other information being provided to you, if I

9 asked you to confirm any of those statements,


1 0 would you feel constrained to assert the 11 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 of Let me hand you what has been marked as

16 order.

17 Exhibit 60, if you would. Okay. Yes.

Exhibit 60 purports to be a printout 20 of an e-mail from Kay Rieve to an undisclosed 21 recipient, subject Dr. Edward Patrick.
22 you seen this e-mail before?
Have

You know, again, I would have to be

Case 1:05-cv-02791-LW

Document 120

Filed 02/07/2008

Page 63 of 91

1 me?

THE WITNESS:
3 a moment.

Let me think here just

If you will allow me to attempt to

4 answer and then tell me if I didn't answer your


5 question.

Sure.

Okay.

This to me, looking at it right now,


8 appears to be something that we would answer in

9 terms of a public records request or a request 10 from the public, of which I would want our
11

staff to, you know, answer.

And, of course, we

12 answer questions on a regular basis of people


13 that we don't know what their reasoning is for

14 requesting that public record information, but


1 5 we try to supply it because that's part of what

16 we do.

That's what this appears to be.

I do

1 7 not know, you know, for a fact who anybody is

18 here, who the requestor is, and so forth.


19

And I would say that, you know, in

20 terms of them asking me any type of question

21 where a public record document might be related


22 to a confidential allegation, you know, that
23 part of our investigatory file probably

24 contains things that other people know about,

Case 1:05-cv-02791-LW

Document 120

Filed 02/07/2008

Page 64 of 91
I

.
Page 64
I feel compelled by the statute to

2 answer questions with respect to this document

3 on the basis of, you know, asking public record

4 information, whoever did this, you know, they


5 asked you this information, is it true,

6 whatever, you know, I'd be happy to try to help

7 you out on that.


8

But anything that tries to tie me

9 into where my knowledge stems from or when I


1 0 first saw this, it's possible that in the

11 course of Kay's day-to-day job, she didn't come


1 2 running to me, somebody asked a question about

13 Dr. Patrick, you know, and/or somebody asked me


14 a question about Dr. X or Dr. Y or Dr. 2 .

Dr.

15 Z may be a subject of investigation by the


16 Board.

She didn't have to come and tell me

17 each and every response she made.

So if Kay got an e-mail request for


19 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 good 2 3 period of time.

She has answered some, but she help construct this

might utilize staff


25 answer.

This may have been begun by her but

Case 1:05-cv-02791-LW
*

Document 120

Filed 02/07/2008

Page 65 of 91

Page 65
1 had other people who helped her respond to this

2 request.

Okay.

But if it was a question that

4 was just asking for publicly available 5 information but it did have to do with a 6 physician that may be under investigation, it
7 wouldn't necessarily be -- that wouldn't
8 necessarily require her not to answer the
9 question; is that right?

Correct.
11

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, You know, I

14 in '88, but I can't swear to that.

15 don't want to say that about poor Kay if that


16 wasn't the case.

But she's been there for,

17 let's say, a long period of time.

Okay.
19

A.

Not necessarily in this position.

20 She right now, since 2002, I think, is


2 1 administrator in the

-- overseeing the

22 licensure and records sections, and I don't 23 know if she still is that person, but that's
24 where she was when I was there and in 2002.

Looking at the first sentence of the

Case 1:05-cv-02791-LW

Document 120

Filed 02/07/2008

Page 66 of 91

Page 66
1 second paragraph of this e-mail, the Board did

2 not require primary source verification for


3 every entry on the physician's resume or even

4 the post-graduate training in 1976.

Do you

5 agree with that statement, or do you have any


6 knowledge whether that's an accurate statement

7 or not?
8

Yeah.

I would rather say that I

9 can't answer that for sure because I wasn't

10 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 that


18 question more articulately a couple years ago,

19 but right now -20


Q.

You don't remember everything you

21 ever learned?

Yeah, exactly.

I would not be good

23 on that show with the fifth graders.

My

24 three-year-old gets me, what am I talking


25 about?

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Page 6 7 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 next
7

question. A.

You never talked to Phil Heimlich? No. Never corresponded, communicated

i
1

9 in any way.
10

1
I

Does the Board treat -- is there a

11 requirement that a complainant identify 12 themselves? 13 14

No. Does the Board treat anonymous

15 complaints differently than other complaints?


16

A.

You know, again, that's a broad


,
\ L

17 question.

We will accept anonymous complaints.

18 Obviously when you complain anonymously, it 19 makes the job a lot more difficult, and so
I 1

20 there is a bit of question about credibility


2 1 sometimes too, but that is dependent upon what

22 information we are presented and so forth.

And
,

23 so by way of differently, I think that there is


24 potential differences, but we don't throw it

i
?
I

25 into an anonymous pile and say open it and


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Case 1:05-cv-02791-LW
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Page 68
1 close it type of deal.

One of the differences might be with


3 an anonymous complaint, it might be more

4 important for you to get corroborating 5 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, positions
10 over time, you can throw out some names at me 11 that I recognize and are in the health care 12 field and that person would say, oh, Tom 13 Dilling, I know Tom Dilling, and again, I wish 14 I had my three-year-old's ability to recall 15 names and that, but I'm sorry that I don't

16 necessarily.

That's all right.

Maybe this will

18 spur your recollection.

I've handed you what's

19 been marked Exhibit Number 62 and ask if you 20 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 to
24 complaint@active.ws with a number of cc's, 25 including Tom.Dilling@med.state.oh.us.

Was

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Page 69 1 that your address at the Board?


A.

Yes. It's dated September 19, 2003, and Do

4 discusses Dr. Patrick at Jewish Hospital.

5 you recall receiving a copy of this e-mail?

A.

I think that, again, it may be in

7 that amorphus area of confidential

-- well, no,

8 I don't think it was amorphus.

I think I'm

9 compelled not to answer based upon the

10 confidentiality provision in 4731.22. 11


Q.

You would take that position even

12 though it doesn't appear to be information you


13 were seeking or that the Board was seeking?

14

A.

It doesn't -- there are a lot of

15 things that may not appear to you or to anyone 16 else on any individual matter to be something 17 that the Board was involved in or interested 18 in, and I can't really tell you that that was 19 the case in here, but I think that the nature 20 of what is being asked, and I specifically
21 refer to like fraudulent, you know, and so

22 forth, that is kind of what is backing me off 23 from responding. 24


I think that it's different, at least

25 in my mind here, from this e-mail exchange in

Case 1:05-cv-02791-LW

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Page 70
1 the sense that this is asking for like an

2 interpretation of, you know, what the law is.


3
4
( Indicating. )

Now, this other one is talking about

5 potential fraud and, you know, evidence and 6 things like that, so I'm backing off even 7 further from attempting to answer that based 8 upon the privilege.

Q.

Okay. Right.

So just, again, I'm just --

11

I'm not -- I don't mean to beat a

12 dead horse but, for the record, you feel


13 compelled not to answer questions about Exhibit 14 6 2 because of the privilege and the statute, 15 correct? 16 A.

Correct.

If you were to ask me some

17 type of general question about the law and how 18 it applies that may have sparked your interest 19 through some type of e-mail like that, I'd be

20 glad to help you, if I can. Let me just ask whether this document
22 refreshes your recollection as to whether you
23 know Gary Harris.

24

A.

1'11 just tell you same as before.

25 I'm looking at a document that says Gary

Case 1:05-cv-02791-LW

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Page 71
1 Harris, General Counsel, Health Alliance of

2 Greater Cincinnati.
3 Alliance.

I'm aware of the Health

Over of the course of my career, I

4 probably dealt with him on occasion, but he's


5 not somebody who I had on my Rolodex, not

6 somebody who I would call up necessarily and


7 say, hey, Gary, you know, can you help me out,

8 you know, in such and such a matter or

9 whatever.

Can you tell me -- I've got to ask,


11 can you tell me whether the State Medical Board
12

ever obtained Dr. Patrick's file from Jewish

13 Hospital?

I can't tell you.

And, again, that's based on


16 privilege?

Based on privilege, yeah.


MS. PFEIFFER:

Can I just interject?

19 So we are clear, when you use the term 20 privilege, I'm not sure it's --

21
22 23
24

MR. ZIRM:

That may not be exactly

right. THE WITNESS: statute.


MS. PFEIFFER:

The confidentiality

Right.

That's fine if

Case 1:05-cv-02791-LW
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Document 120

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Page 72 of 91

.
Page 72
1 you use privilege, so long as we are all on the
:
I
t

2 same page.
3

Do you know Mike Bowen? Yes.


$

Q.

Have you ever had conversations with

6 Mike Bowen in a non-medical Board investigatory 7 setting?

A.

Yes. Did you consider any mention of a

10 physician to be a potential complaint when you

11 were executive director of the Board?


12
13

A.

No. There has

-- well, strike that. Did

14 Mike Bowen ever mention Dr. Patrick to you in


?

15 passing, not in a complaint sense but in 16 passing? 17


18

A.

You know, I can't recall. I'm going to ask you some more

I
I

i
I

19 questions about your contact with Tom Francis

20 of Scene.

I'm going to hand you what has been


5

21 marked as Exhibit 63.

I'll represent to you

22 that Mr. Francis has been deposed in this case,

23 and on behalf of Scene and Francis we produced

24 some documents, which include what Mr. Francis 25 has testified to, and these are transcripts of
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Case 1:05-cv-02791-LW

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.
1 his notes.

Page 7 3

I
4

Okay. And this is a page that I've taken 4 from the transcription of his notes.

I 1

Okay. Which purports to be notes of a


7 conversation he had with you.

i
I
f
I
I

Just with that

8 context, I will ask you if you would review it.

A.

Sure.

Could you tell me, is this

I
1

10 supposedly taking place prior to his writing of 11 the article? 12 tell me?
i

Would that be okay for you to

13

I 'm not su.rewe know that.

They

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I I

14 weren't dated.
15

MR. BLANKENSHIP:

1 think this is
I

16 part of Francis' investigation for the article.


17 1 8 so. THE WITNESS:

Yes.

I would assume

19

MR. ZIRM:

Yes, he did testify that


r

20 the notes were taken prior to publication of

21 the article.
22 23 THE WITNESS:

Okay.

Q.

My first question is, Mr. Dilling,

24 does this at all refresh your recollection of

i
1

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25 your conversation with Tom Francis?


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Case 1:05-cv-02791-LW

Document 120

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>

Page 74 It helps a little bit. I mean, I

;
I

2 would say generally speaking, it sounds like


t

3 the type of conversation that we would have had

4 or we did have with respect to it.

I think
t

5 it's consistent with the answers that I gave


6 here today.

i
I
I

In looking through it, it's hard

7 to gauge the context without seeing, you know,


i

8 the specific back and forth and the dialogue.


9
10

Q
A.

Right. And what he is writing down as what

i
I I

11 I'm saying might

--

I'm saying might

--

be more

I I

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5

12 of what he is adding up in his mind, not


13 necessarily exactly how I answered the
14 question.
Q.

i
i

Okay.

And I guess that leads to a

16 question, is there anything here that he has 17 written down that purports to be what you've

18 said that sounds like it's way off base or

19 something that you definitely wouldn't have

Well, excuse me.

I would say that

22 you can see -- you get a feel from the article 23 as well

-- that I was very cautious about what


You kind of get the feeling

24 I was saying.

25 that's what I'm doing because I've done it for

Case 1:05-cv-02791-LW
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.
1 20 years now, you know, and so it's a constant

Page 7 5

2 fight between my running my mouth and my legal


3 training and knowing what the laws are and my
4 St. Ignatius training as to you got to play by

5 the rules and so forth.

So I do that to the

6 greatest extent possible, and I hope that that

7 comes out.
8

Now, you know, like when you get down

9 to where it says I'm having trouble convincing


10 the hospital in this case to produce proof of a 11 residency, I'm assuming that's what he said --

12

I believe that's correct.


--

not me.

If that's the case, hey,

14 I have no problem with that statement.

15

Q.

Okay. This thing at the very top that has

17 been cut off, to get into the state for

18 licensure, I tell you we looked into something


19 like that and found it didn't matter, because

20 in 1976 you didn't need a residency training

21 for criteria for licensure.

When I say we

22 looked into something like that, I'm guessing

23 that that means looked into generally about


24 licensure.

Okay.

Case 1:05-cv-02791-LW

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Page 76 But not like, oh, so I'm asking you


2 about Dr. X or Dr. Y, you know, we looked into
3 that.

It doesn't go or doesn't fit with the

4 rest of the context. Right. So that again you read words


7 differently and so forth.

That's how I

8 recollect things and that's how I think I

9 conduct business, you know.

The rest of this,

10 again, I just read it once but nothing jumps 11 out at me. 12


Q.

Okay.

Did Tom Francis tell you he

13 was looking into Dr. Patrick's background? 14

A.

You know, I'm assuming so, based upon

15 what I'm reading here and based upon that 16 article and, you know, my recollection, you
17 know, to the best of my ability, that he did

18 ask me questions, which got specific to names


19 of physicians.

Without saying, hey, Dr. P or

20 Dr., you know, X, Y, or doctors who are under

21 investigation or were under investigation, I'll


22 tell you that he, like many other reporters,

23 probably did ask me some questions, and they


24 get tired of me answering, reporters

25 especially -- you guys get paid for it, that's

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Page 7 7

1 part of your job -- but reporters say, Tom,

2 okay, you can just tell me you can't talk about


3 it. 4

You know, because I do go -- if they

5 ask me questions about generally, I will try to

6 help them understand the context of the article


7 in which they are writing, because I think that 8 helps the Board out, it helps the public, it 9 helps the Board do its job, fulfill its purpose

10 by doing that.

And, quite frankly, over my

11 20-year career, that's paid off more than not,

12 you know, in terms of I think people, reporters


13 or whatever, who come in very speculative of

14 how the Board operates and to what degree they

15 are trying to do their job and so forth, but


16 while I'm not the most articulate person in the

17 world, I do convey the Board's, I believe, the


18 Board's sense of purpose and desire to get at
19 the truth and to do their job.

It sounds like you've had -- part of


21 your job for a long time at the Board was
22 dealing with t h e press, answering reporters'

23 questions; is that fair to say?


24

A.

You know, there was somebody who It was

25 dealt w i t h t h e p r e s s more than I did.

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Page 7 8

1 more their job, but I was involved in a number 2 of high profile cases over the years because
3 there weren't that many of us, you know, at
4 that time, and being involved in Board's

5 rule-making is what -- was somewhat started 6 because of disciplinary matters and because of 7 my role at the government that, yeah, I had a 8 relationship with, you know, a number.

And then when I was director, they 10 don't want to talk to the person who talks to

I
1

11 the press, they want to put Tom on there and


12 put him in front of the TV, which I really,
13 much as it looks like I like to talk,

14 I didn't like that part of it, but I did it.


15 And, again, I did it in this type of fashion 16 and think more often than not that it paid off,
17 you know, for the Board because people, you

18 know -- I would attempt to answer the 19 questions.

Do you have an understanding of what

1 21 it means when you talk to a reporter off the


22 record?

I know generally what that means,


24 yeah.

I don't think that there ever really is

25 a true off the record, but I think that you can

Case 1:05-cv-02791-LW

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Page 79
1 get a relationship with somebody or you get a

2 feel for the person and you can say something,


3 but I think that those cases would be very rare 4 and it's a very delicate position to be in to 5 maintain the confidentiality and say something

6 that's off the record.

You know, it's very

7 difficult and it would be hard for me to recall


8 doing that.

Do you recall whether any part of

10 your conversation with Mr. Francis before the 11 publication of the article was off the record? 12

A.

No.

I can't imagine talking to

13 somebody who I never, you know, met or talked

14 to before going off the record.

And again, I

15 don't know of what context I could go off the


16 record without getting -- now I'm assuming a 17 certain type of question. There may well have

18 been something that he wanted to ask that I


19 would have answered in more of a general, you

20 know, term.

Say somebody -- I don't want to be

21 quoted in terms of how the Board dealt with


22 licensure matters in the 1970s, so that I say
23 well, can we go off the record now?
I

To me,

24 that means this isn't going to show up as a


25 quote from me or isn't going to be a part of

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Page 80

1 that article.

And if I think -- sometimes if I

3 think that somebody is just being led in a 4 certain direction or is just stuck on that and 5 I think that perhaps I can convince them in 6 some way that that's not the case, I will; so 7 is it possible? And again, I don't recollect

8 this, but is it possible he said something or I 9 wanted to say something to the effect of, look,

10 just generally, do you know how difficult it


11 would be to go back and prove something 30 12 years after the fact about a residency program, 13 that would be tough to get them to understand 14 what a residency program was, that I don't even 15 understand that, and turn that into a fraud
16 case.

I might say something like that to

17 somebody.

18
19

(2

Off the record? Off the record, yeah. Gosh, I might

20 say that to somebody on the record, depending 21 on the context, you know, if somebody threw 22 some quotes at me that, you know, I didn't

23 believe were true or that were reflective of,


24 you know, what was going on, I might make that

25 choice to say, you know, you got to understand

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1 this, this is where it's coming from.

You know, but again, in short, I 4 can't recall doing that here. Possible, you don't remember? Right, correct. Okay.

Now, I think in response to

8 Mr. Blankenship's question, I thought I heard 9 you say you saw the article sometime after it
10 came out but you're not sure how it was brought

11 to your attention? Correct. Do you know whether you actually saw

14 the newspaper itself?

No, I did not.


16 knowledge, I did not.

To the best of my

You know, to the best of

17 my recollection, I think that I generally, when


18 I talk to reporters for a while, I will say,

19 you are writing an article, can you send me a


20 copy?

I'm guessing that whether it be e-mail

21 or per a phone call to the Board saying you can


22 get it on the web or you can do that, that was

23 it.

I do kind of recall my brother, who lives

24 up in Cleveland, telling me, hey, I saw this 25 Cleveland Scene thing with the Medical Board or

Case 1:05-cv-02791-LW

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Page 82
1 whatever.

But, yeah, he probably didn't even

2 read it.
3

I don't recall it being a big deal.


You indicated that you at least

4 contemplated writing something in response, 5 like a letter to the editor kind of thing?
6

Yes .

Q
8 that?

What did you contemplate including in

Well, again, I will go back to my

10 guttural reaction, or whatever, after reading


11 this, you know, the article, and, you know,

12 this is my opinion, and it's somebody who was 13 the director of the Board and it was somebody
14 who had given their entire post-graduate

15 career, I guess, to the Board, and certainly 16 you can say I'm a true believer, because while

17 I don't necessarily agree that the Medical


18 Board has ever taken -- or how they go about

19 it, I believe in it, I believe in their system,

20 I believe where they are coming from and their


21 good intent.
22

And so when I see that, a title that

23 says, Playing Doctor, Lying on a Resume Isn't a

24 Crime - except when a doctor does it; luckily


25 for Edward Patrick, the Ohio Medical Board is

Case 1:05-cv-02791-LW
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1 -4
D

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Page 8 3

1 forgiving, to me, that's not just a shot at me,

2 who's the director, you know, I take that more


3 as I am working for them, the Board and the

4 public, you know, it's a public agency, the

5 governor, you know, everybody, and when 6 somebody says that, and I know that the Board 7 is kind of counter to that in terms of how they
8 view falsification, you know, then yeah, I

9 don't think that the correct message has been 10 sent out, and so I want to correct that
11 message.

That's Tom Dilling.

I want to

12 correct it. And so, yeah, I think my first


14 reaction was even after reading this thing,
15 it's like I don't think that's what this whole

16 article is about, yet, you know, by cutlines 17 and the headlines and so forth, you can create, 18 I understand that, a different sense, and it 19 sells papers or it draws readers1 attention.
20 And perhaps that is the point that the author

21 wants to, you know, make most prominent;


22 although I would say that he shouldn't bury it

23 down into the article somewhere.

Journalism

24 tells me, hit your first thing right off the


25 bat, because I might not make it eight

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Page 84
1 paragraphs into the article, especially one of

2 this length.

He knows his readership and so

3 forth. Anyways -4

So the headline you thought was

5 taking a shot at the Board?

A.

Right.

And then, of course, the

7 purported quote and putting me in quotes and so


8 forth, well, like I can -- maybe I need to give 9 my quotes to what I think about this.

But

10 then, you know, other people are paid to, I 11 guess, calm Tom down and, you know, let him 12 think about this and also, you know, say, 13 again, I started off with the counsel of you

14 don't get into the boobie hatch with the


15 boobies.

That's something said to me all the You know, it's not maybe a

16 time, it seems.

17 winnable fight, you know, and you are not going

18 to convince somebody who has already gone to


19 this degree, so I chose not to.
20

Q.

If you could turn to the fourth page


I'm

21 where the quote is attributed to you.


22 looking on page four of seven here.

Have you got four of seven? 24 four of five.

I have

We have different versions.

25 am assuming they are the same thing.

I have

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Page 85

1 pictures on mine.

Yours is smaller type.

If you can find your quote for me.

Sure.

Purported quote, yeah.

Purported quote. Yes. I've got it.

Q.

But according to Heimlich, Dilling

7 said that, quote - -

Yes.
9

Q.

If you could go up a couple of

10 paragraphs ahead of that -Sure 12


(2

-- where it says, "the Board is

13 heralded as one of the nation's most stringent

14 medical regulators, filing more actions against


15 doctors than the Board of any other populus
16 state."

Is that an accurate statement, to your

17 understanding?
18

A.

Yeah.

It was then, and it probably Of course, the rankings, you

19 still is today.

20 know, vary a little bit, but the one national

21 organization that p u r p o r t s to kind of be a


22 watchdog over Medical Boards and gives their

23 own statistics is the Ralph Nader group, the


24 citizen action group.

And during my tenure

25 there, the Board was in the top ten of their

Case 1:05-cv-02791-LW

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Page 86

1 rankings and was ranked as for number of


2 licensees, let's say, over 15,000 or 20,000 or
3 whatever, as the top of the board in terms of

4 disciplinary actions. 5
Now, just like anything, you can look

6 at it different ways, and their rating system


7 was a little different than even the Federation 8 of State Medical Board's system, but that's

9 what I think that that's talking about.


Okay. The next paragraph, which is

11 just one sentence, says, "he," referring to 12 Peter Heimlich, "had several long conference 13 calls with Dilling and Mark Michael, an

14 attorney with the Ohio Attorney General's

15 Office."
16

Is that a true statement? That goes into, I think, where I was

A.

17 earlier with the confidentiality provision, 18 which would preclude me from answering those
19 type of questions, that one specifically.

Forgive me if Mr. Blankenship asked 21 you this question, but a few paragraph down, it
22 says, "because the Medical Board complaints are 23 confidential --

Yes.
--

Dilling won't discuss Patrick or

Case 1:05-cv-02791-LW

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1 even confirm that an investigation occurred,"

2 and then the next sentence, "but Dilling did


3 say that in 1976, the year that Patrick should 4 have completed his residency, post-graduate

5 training was not a requirement for licensure"?


Uh-huh.

Do you recall telling Francis that?


Yeah. And I think that was reflected

9 in the conversation that you showed me, those 10 notes. That seemed reflective of our

11 discussion, as best I can recall.

12

Q.

The next sentence says, still, the

13 Board can pull the license of any physician who

14 publishes false credentials.


15 statement?

Is that a true

16

It's a very general statement.

17 would say generally it was true.

The Board has

18 a grounds for discipline that says you -19 physicians shall not make a false, fraudulent,
20 or misleading statement.

And then there are,

21 you know, within certain context, there is some


22 case law which is improving - - there was a case

23 that kind of got more into the intent of

24 things.

I would say that in my career, there


$

2 5 was a case where I thought that was a true

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Page 88
1 statement but the court said otherwise.

So, you know, what I am saying, there

3 are always particularities within the law that


4 would limit that general statement.

Okay. Say somebody makes a typo or whatever


7 but it changes some type of substantive or 8 arguable substantive issue --

Sure.
-- then the court and the Board, when

11 they are exerting their discretion, is going to 12 look into it and say, what did the guy get out
13 of this?

You know, so t.hatlswhere I think the

14 intent -- you know, I always thought that's


15 where the intent came in.

When Mr. Francis talked to you before 17 the publication of the article, if he had asked 18 you about specific - - whether you had 19 conversations with Peter Heimlich about Dr. 20 Patrick or specific things that you and Peter

21 Heimlich may have talked about, would you have


22 answered him?

A.

No, I wouldn't have answered in a

24 direct fashion. 25 did today.

I would have answered like I

Again, I would have answered

Case 1:05-cv-02791-LW

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1 dependent -- you know, there may be a point

2 where I wouldn't have answered, but depending


3 on what he asked and how he asked it or what he 4 threw at me, I would attempt -- I may attempt 5 to answer in a fashion that I guess we learn in 6 law school. 7

Q.

Okay.

MS. PFEIFFER:
9 informative.
10

Non-responsive but

MR. R .J. BLANKENSHIP :

I'm going to

11 write that one down,

12

Prior to today, have you ever met Dr.

13 P a t r i c k ?

No, not that I'm aware of.


15

MR. ZIRM:

That's all the questions I

16 have for you for now.

MR. N.J. BLANKENSHIP:


18

No follow-up.

MS. PFEIFFER:

I would suggest you

19 read if it's transcribed, that you read it to

20 look for errors and correct it.

THE WITNESS:

Okay.

(The deposition was concluded at 3:12 p.m.)

Case 1:05-cv-02791-LW

Document 120

Filed 02/07/2008

Page 90 of 91

Page 90

I, THOMAS D I L L I N G , do h e r e b y c e r t i f y 2 that the foregoing is a true and accurate


3 transcription of my testimony.

Dated - - - - - - - - - - - - - -

Case 1:05-cv-02791-LW

Document 120

Filed 02/07/2008

Page 91 of 91

Page 91
1 STATE OF OHIO

2 COUNTY OF GREENE
3

SS: CERTIFICATE

I, Melissa A. Neary, a Notary Public

4 within and for the State of Ohio, duly


5 commissioned and qualified, 6

DO HEREBY CERTIFY that the

7 above-named THOMAS DILLING, was by me first 8 duly sworn to testify the truth, the whole 9 truth and nothing but the truth; that said

10 testimony was reduced to writing by me


11 stenographically in the presence of the witness
12 and thereafter reduced to typewriting. 13

I FURTHER CERTIFY that I am not a

14 relative or Attorney of either party nor in any

15 manner interested in the event of this action.


16

IN WITNESS WHEREOF, I have hereunto

17 set my hand and seal of office at Xenia, Ohio, 18 on this


19
- - - - - - - - - - - - - - - - - - -

day of

, 2007.

MELISSA A. NEARY NOTARY PUBLIC, STATE OF OHIO My commission expires 8/9/2011