[00:00:30] Speaker 00:
Our final case this morning is Gums v. HHS, Mr. Woods.

[00:00:39] Speaker 04:
Good afternoon, Your Honors.

[00:00:42] Speaker 04:
I'm here today on behalf of Dr. Heidi Gums, who, after 21 years of dedicated service, unblemished record and outstanding performance working for the Indian Health Service,

[00:00:55] Speaker 04:
was terminated from his position.

[00:00:57] Speaker 00:
Let me ask you a question about Oklahoma law, which hasn't been addressed in the briefs here.

[00:01:04] Speaker 00:
As I understand it, the agency's concern and the MSPB finding is that your client's activity after May 7th, I guess it was, was criminal, I guess, under Oklahoma law.

[00:01:22] Speaker 00:
But I'm not sure that's true.

[00:01:25] Speaker 00:
There's an Oklahoma statute which says that if a license is up for renewal and there's a timely application for renewal, that the license continues until the renewal is acted upon, which might suggest that under Oklahoma law, it is not criminal to continue to practice medicine after

[00:01:53] Speaker 00:
your license terms prior so long as you have made a timely application for renewal.

[00:02:00] Speaker 00:
So perhaps the agency's assumption about, well the agency's assumption about all 50 states being similar is absolutely incorrect.

[00:02:10] Speaker 00:
But what's your comment on that?

[00:02:13] Speaker 00:
Well, Your Honor, my point, I... Well, just so that you know what the site is, it's Title 75, Section 314B of Oklahoma Statute.

[00:02:23] Speaker 04:
My understanding is that physicians working with the Indian Health Service must be licensed in a state or other, I guess, Commonwealth jurisdiction in the District of Columbia.

[00:02:33] Speaker 04:
But clearly, what I would term almost gratuitous references in the record

[00:02:38] Speaker 04:
And of course it's illegal, of course it's illegal.

[00:02:41] Speaker 00:
One of my concerns... It has to be illegal under Oklahoma law because that's where the service is provided by.

[00:02:48] Speaker 00:
Exactly.

[00:02:49] Speaker 00:
And... So if under Oklahoma law a license continues when there's a renewal pending, then it would seem as though that's not illegal, it's not criminal under Oklahoma law.

[00:02:59] Speaker 04:
Are you familiar with that provision?

[00:03:02] Speaker 04:
I apologize.

[00:03:02] Speaker 04:
I am not familiar with that particular provision.

[00:03:04] Speaker 04:
I certainly filed some supplemental material with the court on the subject.

[00:03:08] Speaker 04:
But the underlying point of the assumption that was made by the signing official that one of the reasons that he considered the gravity of the defense and one of the reasons that he decided that he was not even going to consider a lesser penalty due to the gravity of the offense that was alleged was the concept that

[00:03:31] Speaker 04:
What had happened was that he had illegally practiced medicine when he saw that one patient on that one day during the period that his license was being renewed, but prior to the time that it had actually been renewed.

[00:03:45] Speaker 04:
And there is an important distinction in that his license was up for renewal, not a real statement.

[00:03:54] Speaker 04:
just simply not bothering to renew your license or not diligently pursuing that, or if I as an attorney were to put a check in the mail to the DC bar and the check for some reason didn't reach there, didn't reach it in time, and I was administratively warned or suspended or something, those are not the equivalent of practicing all without a license or practicing medicine without a license.

[00:04:16] Speaker 04:
He was qualified, he was licensed in Puerto Rico, there was this administrative delay,

[00:04:21] Speaker 04:
that caused, and the record is very clear, he had started from... He knew he wasn't licensed.

[00:04:27] Speaker 05:
He knew his license had lapsed at the time he saw that patient.

[00:04:30] Speaker 05:
He did, in fact, after that morning... So, like this morning, if you would receive notice from whatever state you're barred in, New York Bar, that your license has lapsed effective today for non-payment of bar dues, not because you were, for some reason, not in good standing or otherwise qualified to be a lawyer, but because you hadn't paid.

[00:04:48] Speaker 05:
Would you have come to court today, shown up and stood at that podium and tried to argue on behalf of your client, even though you knew your law license had lapsed, you knew you could easily fix it, but you hadn't yet fixed it.

[00:05:00] Speaker 05:
Would you come to court today and stand at that podium and proceed to represent the client?

[00:05:04] Speaker 04:
I would not, but you know, the difference with Dr. Gumps here is that he didn't have the affirmative knowledge.

[00:05:12] Speaker 04:
He was operating from a boy.

[00:05:13] Speaker 04:
Should he have assumed

[00:05:15] Speaker 04:
that because he's been told, as the record has cleared, he's been told the week before that it should be out any day now.

[00:05:21] Speaker 04:
We expect it's in process of being out.

[00:05:23] Speaker 01:
Where does it say in the record it's going to be out any day now?

[00:05:27] Speaker 01:
As I read the record, or as I understood the record, it wasn't clear when he was going to get the renewal from Puerto Rico.

[00:05:36] Speaker 01:
He was in the process of trying to work it out with them, but there wasn't any indication that it's coming, it's coming.

[00:05:44] Speaker 01:
sit by the fax machine, here it comes.

[00:05:46] Speaker 01:
I didn't see anything like that.

[00:05:47] Speaker 04:
Well, I believe, and I apologize that I do not have the record citation for it right now, I believe in the record there's testimony by Dr. Gums that as of the week before, which incidentally is also the time at which he sat down with the credentialing officer at his clinic and informed as well Dr. Sanders, who is the media supervisor, that as of that day previous to the incident, the May 8th,

[00:06:14] Speaker 04:
one patient that he saw.

[00:06:15] Speaker 04:
He informed them that at that point he had not received that confirmation.

[00:06:20] Speaker 04:
And I believe it was in the context of that discussion that he also states that he was expecting it to come any day.

[00:06:26] Speaker 04:
And that he had had communication.

[00:06:27] Speaker 04:
It's not a situation where he just sent it in and waited for something to happen.

[00:06:33] Speaker 04:
I will take the chance to record the question more directly.

[00:06:36] Speaker 04:
If I sent him my check and didn't hear anything to the negative, I would assume that I was renewed.

[00:06:43] Speaker 05:
OK.

[00:06:44] Speaker 05:
All right.

[00:06:46] Speaker 05:
Where exactly was he practicing?

[00:06:48] Speaker 05:
I'm trying to understand.

[00:06:49] Speaker 05:
Is he on an Indian reservation?

[00:06:51] Speaker 04:
Yeah, my understanding is the clinic is on an Indian reservation.

[00:06:55] Speaker 05:
And is it true that state law is not applicable on Indian reservations if they are their own sovereign?

[00:07:01] Speaker 04:
Well, my understanding is that the licensure authority of professionals on Indian reservations does track the state law.

[00:07:10] Speaker 04:
And I can, again,

[00:07:12] Speaker 04:
This is not something that has to be prepared for today, and I apologize.

[00:07:14] Speaker 04:
I can certainly file supplemental argument authority on that point as to the exact jurisdiction.

[00:07:21] Speaker 04:
Certainly, with the federal government, for physicians, just as with attorneys, being licensed in a jurisdiction is sufficient.

[00:07:29] Speaker 05:
Was he licensed in any jurisdiction?

[00:07:31] Speaker 04:
Only Puerto Rico, and that's the one that's an issue here.

[00:07:34] Speaker 00:
So the question, it seems to be primarily, is not whether he could be sanctioned for what he did.

[00:07:42] Speaker 00:
if, in fact, under Puerto Rico law, the license lasts.

[00:07:46] Speaker 00:
And I don't know whether they have a provision like Oklahoma's or not, but assuming they don't, the question is whether he should be removed for that or whether some lesser discipline would be appropriate.

[00:07:58] Speaker 00:
And what the agency and the MSPB relied on was the notion that this was criminal, that it's criminal under Oklahoma law.

[00:08:05] Speaker 00:
And it seems as though perhaps it was not criminal under Oklahoma law.

[00:08:10] Speaker 00:
because of this provision that I read to you.

[00:08:15] Speaker 00:
So maybe there's an issue as to whether removal based on alleged criminal activity is appropriate under these circumstances.

[00:08:23] Speaker 04:
Well, and in point of fact, we made that point of reach in a slightly different manner, which is the fact that in considering lesser remedies, it is in fact a criteria for the job that one be licensed.

[00:08:37] Speaker 04:
That's understandable.

[00:08:38] Speaker 04:
That's part of their contract.

[00:08:39] Speaker 04:
That's part of their bylaws under which she operates.

[00:08:43] Speaker 04:
But when one goes to the seriousness of the offense, which is really the primary criteria of monitoring government relies on the termination, the seriousness of this offense, when one peels back again into just one layer to look at what they say is so terribly serious, we find the deciding officials saying, well, I'm not going to even consider lesser

[00:09:04] Speaker 04:
in the record, I'm gonna consider lesser penalty because the defense was so terribly serious.

[00:09:09] Speaker 04:
Because it might have reflected poorly on our services and it might have led to potential liability having committed malpractice and it might have done a lot of other things.

[00:09:20] Speaker 04:
All of which is, on these fact-specific issues, it really is speculation.

[00:09:29] Speaker 00:
Now, does anybody?

[00:09:31] Speaker 00:
I'm just more hypothetical.

[00:09:32] Speaker 00:
If you came here today having

[00:09:34] Speaker 00:
send in your money for your bar renewal and argue the case before the renewal actually became effective and assuming there wasn't a provision such as I promised the question, the analogy would be should you be disbarred for appearing in court or should you be disciplined in some other way for doing so?

[00:09:52] Speaker 04:
And in point of fact, had there been, which of course there never were, you know, any disciplinary proceedings from any medical authority brought against Dr. Gums,

[00:10:00] Speaker 05:
Those are exactly the issues that would have been.

[00:10:19] Speaker 05:
disqualified him from the practice of medicine.

[00:10:22] Speaker 05:
Has the federal government done that?

[00:10:23] Speaker 05:
No.

[00:10:24] Speaker 05:
So he's entitled to practice medicine.

[00:10:26] Speaker 05:
He's just not entitled to do so as a VA lawyer.

[00:10:30] Speaker 04:
That is correct.

[00:10:32] Speaker 01:
The standard of review is abuse of discretion?

[00:10:34] Speaker 04:
Well, abuse of discretion, there must be substantial evidence.

[00:10:37] Speaker 01:
But if there's substantial evidence to support the two allegations of misconduct, then on the question of the penalty and the Douglas Factors,

[00:10:49] Speaker 01:
It's an abuse of discretion standard, right?

[00:10:52] Speaker 01:
Whether the choice made is within the tolerable limits of reasonable.

[00:10:57] Speaker 00:
And that's exactly right.

[00:10:58] Speaker 00:
In fact, it's not exactly right because if the penalty rests on the notion that the activity is criminal and it's not, that's not reviewed for abuse of discretion.

[00:11:09] Speaker 00:
And we recently held that under such circumstances where they make a mistake about the activity being criminal, it has to be sent back.

[00:11:16] Speaker 00:
That's a clearly erroneous finding or an error of law.

[00:11:21] Speaker 00:
They don't have discretion to say we're doing it because it's criminal when it's not.

[00:11:25] Speaker 04:
Thank you, Your Honor, for filling in my next sentence, which was it has to be in accordance with the law.

[00:11:31] Speaker 04:
And it is our position, and what we've argued as well, that this particular determination is not, in accordance with the law, in that the Douglas Factors, it's not enough just to recite them and say, here are the Douglas Factors and here's a responsibility.

[00:11:46] Speaker 04:
They actually have to be applied, and they have to be applied correctly.

[00:11:50] Speaker 05:
Which one did they get wrong?

[00:11:51] Speaker 04:
Well, where did we start?

[00:11:54] Speaker 04:
They certainly started in the nature and seriousness of the offense.

[00:11:59] Speaker 04:
Because the nature and seriousness of the offense, in this case, was on each of the two charges.

[00:12:07] Speaker 04:
In the first instance, the nature and seriousness of the offense was that he had applied in February for a renewal of his Puerto Rican medical license that had not yet happened.

[00:12:18] Speaker 04:
And to the extent that government still contends that part of that offense was in not telling the supervising physician that morning

[00:12:29] Speaker 04:
that nothing had changed since the Friday before when he had told him it hadn't done that.

[00:12:33] Speaker 04:
Dr. Gums, in his testimony, I think, accepted responsibility for that.

[00:12:37] Speaker 04:
He said, shouldn't you have gone and told your supervisor, yeah, I probably should have?

[00:12:41] Speaker 01:
I read the record of him working to shift the blame to the supervisors and to the nurses and blaming everybody else except himself for electing to provide medical care to a patient that morning.

[00:12:57] Speaker 04:
Our argument to the extent of that, and certainly the MSPB took it as a shifting in blame as well, our argument today is not that it's anybody's responsibility other than Dr. Gomes to maintain his credential, although they do have a credential office and others to assist in that process.

[00:13:15] Speaker 04:
The argument goes to the seriousness of the offense, and it's the answer in the fact that he did not conceal this.

[00:13:22] Speaker 04:
He did not do it for malicious purposes.

[00:13:24] Speaker 04:
All he did that morning was he came in

[00:13:27] Speaker 04:
And he started his assigned rounds, they were on the schedule, without stopping that morning and saying, wait a minute, I know this is my job, I know this is what I've been assigned to do, I can't do this because I don't have my

[00:13:40] Speaker 04:
my renewal in hand yet.

[00:13:59] Speaker 04:
There was no hint of any disciplinary charges at that time.

[00:14:03] Speaker 04:
There's nothing in the record to show any disciplinary charges at that time.

[00:14:05] Speaker 01:
Well, at least he wasn't providing medical care to patients during that time.

[00:14:08] Speaker 04:
That would be the distinction, that he did not see the one patient.

[00:14:14] Speaker 04:
But again, I want to be clear.

[00:14:16] Speaker 04:
It's not Dr. Gomes' position that it's somebody else's fault that he saw that patient that morning.

[00:14:23] Speaker 04:
What Dr. Gomes' position, the reason that it is so important that he kept his superiors and the credentialing officer

[00:14:29] Speaker 04:
aware of the fact that his license was still pending renewal, is that he did not, it's not a situation where he concealed anything, where he pretended to be a doctor, where he pretended to be licensed and wasn't.

[00:14:42] Speaker 04:
He kept them apprised of the situation every step of the way.

[00:14:46] Speaker 04:
And if there's a fault to Dr. Belms for having seen that one patient that morning, and I would also argue that Dr. Sanders quite appropriately, you know, took steps to mitigate any potential risk

[00:15:00] Speaker 04:
to the clinic by reviewing those notes and by himself signing off on it after Dr. Dunn had completed it.

[00:15:06] Speaker 04:
But if his offense, if seeing that one patient while his license was pending, then the rational and reasonable response to that offense, which is not capable of repetition in terms, at least for the next six years, is not indicative of any pattern of behavior

[00:15:25] Speaker 04:
And if anything, what evidence Dr. Gums coming in wishing to do his job as a public servant that morning and do what he got paid to do is not a termination offense.

[00:15:36] Speaker 04:
It is something where a far lesser penalty could and should have been imposed that would have satisfied whatever needs the agency might have legitimately perceived existed without terminating a blemishless 21 career as a physician working in an underserved community.

[00:15:55] Speaker 00:
Well, I think we're out of time.

[00:15:57] Speaker 00:
We'll give you two minutes for rebuttal.

[00:15:59] Speaker 00:
Mr. Grimaldi.

[00:16:12] Speaker 01:
So does Oklahoma law apply to the practice of medicine here on this reservation?

[00:16:16] Speaker 02:
Well, Your Honor, I did look at Oklahoma law in preparation of our brief as well as the argument today.

[00:16:24] Speaker 02:
We didn't look at federal law or Puerto Rico law.

[00:16:28] Speaker 02:
Unfortunately, we found a different statute than the one that Your Honor cited.

[00:16:31] Speaker 02:
We found 59 Oklahoma Statute 495B, so that's 59 495B, which does not have the qualifying language that Your Honor just stated.

[00:16:43] Speaker 02:
So if I could ask Your Honor to repeat that, did you state that if a pending application

[00:16:48] Speaker 02:
is with the Board that it won't be practicing this without the law?

[00:16:53] Speaker 00:
It says, except as otherwise prohibited by law, the licensee has made timely and sufficient application for renewal of the license.

[00:17:00] Speaker 00:
The existing license does not expire until the application has been finally determined by the agency.

[00:17:07] Speaker 00:
The question, the discipline here rests on a finding of criminality.

[00:17:12] Speaker 00:
The question is whether, under Oklahoma law, continuing to practice medicine with an expired license where the renewal has been put in is, in fact, a criminal offense.

[00:17:23] Speaker 02:
Well, the renewal has been put in yet, Your Honor, as of the morning of May 8, 2013.

[00:17:28] Speaker 02:
He still owed $100, which he did not place until after he saw that patient.

[00:17:33] Speaker 02:
So even if this statute does apply, his renewal is not pending.

[00:17:38] Speaker 02:
It was not completed, if you will, Your Honor.

[00:17:41] Speaker 02:
And that can be seen on JA-95.

[00:17:44] Speaker 05:
He says he hasn't made a timely and sufficient application.

[00:17:47] Speaker 05:
The sufficiency of his application is relied by the fact that he had not made payments.

[00:17:51] Speaker 00:
Correct.

[00:17:56] Speaker 00:
Okay.

[00:17:56] Speaker 00:
Ponder, poor Winkle, when's the payment supposed to be made?

[00:18:00] Speaker 02:
I believe with the application.

[00:18:02] Speaker 02:
That's what kind of what it would imply from all the testimony.

[00:18:05] Speaker 02:
I don't think there was anything in the record that says this is one that needs to be paid, but that's what was holding up his application was the fact that he had not paid the falling act.

[00:18:20] Speaker 02:
I just want to point out that, Your Honors, I guess we'll just turn directly to Douglas Fackers here, Your Honors.

[00:18:26] Speaker 02:
And there's been discussion today about speculation.

[00:18:29] Speaker 02:
All this harm is speculative.

[00:18:31] Speaker 00:
This amounts to only... I know the real question is the seriousness of the offense.

[00:18:34] Speaker 00:
This is not... I mean, he wasn't doing this for personal gain.

[00:18:38] Speaker 00:
He wasn't concealing the fact that he had made application and was having difficulty getting it done.

[00:18:45] Speaker 00:
And the question is whether, under the circumstances,

[00:18:49] Speaker 00:
here, it was appropriate to remove him as opposed to some other form of discipline.

[00:18:54] Speaker 02:
Yes, Your Honor.

[00:18:55] Speaker 02:
And he was removed because it was a serious offense.

[00:18:57] Speaker 02:
As we've discussed, it's a criminal action.

[00:19:00] Speaker 02:
It also placed the clinic in jeopardy in the sense that the Joint Accreditation Commission standards, which allowed him to be a non-profit, it was a violation of that and there's testimony about that.

[00:19:14] Speaker 00:
Well, suppose that it weren't criminal.

[00:19:17] Speaker 00:
If this Oklahoma statute did apply and it weren't criminal, wouldn't we have to send it back for a re-determination of the penalty?

[00:19:24] Speaker 00:
Well, Your Honor, I would say that it is still a violation of the bylaws of the... Yeah, but it rests on the criminality finding.

[00:19:32] Speaker 00:
The bylaws don't make criminality, right?

[00:19:35] Speaker 02:
No, I can give you the exact language, Your Honor, that rests upon them.

[00:19:38] Speaker 02:
We have the justice factors printed out that Mr. Scott, the deciding official, did.

[00:19:42] Speaker 02:
under the first one, which is the nature and seriousness of the crime.

[00:19:46] Speaker 02:
J-85.

[00:19:47] Speaker 00:
That's correct.

[00:19:48] Speaker 00:
But the bylaws don't make the criminal, right?

[00:19:51] Speaker 02:
No, but it's a violation of, he says, which is a violation of laws which govern and regulate patient care.

[00:19:58] Speaker 02:
This wouldn't be, the bylaws aren't a law applicable to every doctor in Oklahoma, but they apply to Dr. Jones.

[00:20:04] Speaker 02:
He wasn't fully accredited.

[00:20:06] Speaker 00:
Since the decision of the deciding official and the MSPB rested on a finding of criminality, if it weren't criminal, we'd have to send it back, wouldn't we?

[00:20:17] Speaker 02:
There would have to be a new determination of penalty, if you're on a guess.

[00:20:22] Speaker 01:
Are we reviewing the MSPB's final order or the initial decision, or both?

[00:20:27] Speaker 01:
How does that work?

[00:20:28] Speaker 02:
Well, the final order did not petition for review and made the

[00:20:35] Speaker 02:
the initial decision, the final decision.

[00:20:38] Speaker 02:
The final order also provides ample discussions of the issues.

[00:20:42] Speaker 02:
So we've treated this as a discussion of both of them, Your Honor.

[00:20:47] Speaker 02:
They are consistent.

[00:20:48] Speaker 02:
There was no overturning anything in the folklore decision over the initial decision.

[00:20:57] Speaker 01:
The MSPB decisions identify a lot of different bases to articulate why this

[00:21:05] Speaker 01:
In the initial decision, there's a reference to criminal acts, but then there's the violation of the bylaws, condition of employment, and then there's the trust of the community.

[00:21:25] Speaker 01:
Could you talk about that a little bit?

[00:21:27] Speaker 01:
Sure, Your Honor.

[00:21:28] Speaker 02:
I can give you a list of citation pages for when that arises.

[00:21:33] Speaker 02:
It's strewn throughout the testimony for the hearing.

[00:21:37] Speaker 02:
It can be seen in JA 37, 36, 41, 53, 54, and 55.

[00:21:43] Speaker 02:
And to sum up all of those without having to read all of that, Senior Honors, is simply that the Pawnee service unit that provides the health care to the Pawnee Nation is there with, they have the trust of the community.

[00:21:57] Speaker 02:
They have the trust of the tribal leaders.

[00:21:59] Speaker 02:
If they somehow break that trust,

[00:22:01] Speaker 02:
There's fear and there's concern on the part of IHS that individuals will stop using the clinic and stop getting these services that are necessary.

[00:22:10] Speaker 00:
There was no awareness in the community of this problem, right?

[00:22:14] Speaker 02:
That's correct, Your Honor.

[00:22:15] Speaker 02:
And Dr. Calvin's argument is basically that, well look, no one found out about this.

[00:22:20] Speaker 02:
So all this harm is speculative.

[00:22:22] Speaker 02:
We don't have to worry about there being newspapers or they're putting lawsuits discussing this matter because it hasn't happened yet.

[00:22:29] Speaker 02:
That's akin to saying, I shouldn't be punished because I didn't get caught.

[00:22:32] Speaker 02:
If I had shown up today, I mean, Luke lost my license yesterday.

[00:22:36] Speaker 02:
You're on the news on how much you should be punished, doesn't it?

[00:22:42] Speaker 02:
It could be a factor.

[00:22:43] Speaker 02:
One of the other factors is what kind of punishment would be reasonable.

[00:22:47] Speaker 02:
But here we're talking about the Douglas Factor and abuse of discretion.

[00:22:51] Speaker 02:
What is grossly disproportionate in terms of a punishment?

[00:22:55] Speaker 02:
Here we don't have a situation where removal is grossly disproportionate.

[00:22:59] Speaker 02:
Dr. Gums violated the law, and we still do contend that today, Your Honor, that he did violate the law, that he violated the bylaws, he jeopardized the trust of the community, and that information could still get out to the community, and this is a public

[00:23:12] Speaker 02:
action right here, somebody could read about it and learn that there was somebody who was practicing medicine that day.

[00:23:18] Speaker 05:
In fact, if this Oklahoma law actually applied in a manner that would cause Dr. Combs' license not to have lapsed, then everything about this case would be wrong.

[00:23:34] Speaker 05:
We wouldn't be talking about the penalty, we would be talking about the fact that you couldn't sustain the actual charges, right?

[00:23:40] Speaker 05:
If under this Oklahoma law, his license, in fact, had not last, but was rather not deemed last until he got a final word on non-renewal, this would have nothing to do with penalty.

[00:23:50] Speaker 05:
This would have everything to do with sustainability and charges, wouldn't it?

[00:23:54] Speaker 02:
Well, yes.

[00:23:55] Speaker 02:
I mean, Your Honor, that wasn't brought up below.

[00:23:57] Speaker 02:
So there's substantial evidence that's still in the records for the board to find that Dr. Gums did practice medicine under the law.

[00:24:07] Speaker 02:
So under the standard,

[00:24:10] Speaker 02:
Yes, there would be a problem for Dr. Gums, because it wasn't raised below.

[00:24:13] Speaker 02:
But here, I understand what your Honor is saying, you know, something that the agency should consider itself at that point, outside of the context of litigation, as whether Dr. Gums actually did violate the law.

[00:24:25] Speaker 02:
But as I discussed earlier, he was not an insufficient application, so all these concerns, this Court need not worry about.

[00:24:37] Speaker 02:
One other thing I wanted to mention about the distinction between the last time and this time that Dr. Gellman's license expired.

[00:24:45] Speaker 02:
And the penalty before, well, it wasn't.

[00:24:47] Speaker 02:
There was no charges brought against him the first time.

[00:24:49] Speaker 02:
What was the difference here?

[00:24:51] Speaker 02:
The difference here is that he came into work that morning.

[00:24:54] Speaker 02:
And he met with Nurse Parrish, which was his living companion.

[00:24:59] Speaker 02:
And he went to go see patients while she checked the website to see if his license had been renewed or not.

[00:25:06] Speaker 02:
And that's JA 76 and 75, Ms.

[00:25:09] Speaker 02:
Parrish's testimony.

[00:25:10] Speaker 02:
So he chose, made the choice to go see patients while somebody else checked to see if his license had been renewed or not.

[00:25:18] Speaker 02:
It was only at that point that Ms.

[00:25:20] Speaker 02:
Choate saw Ms.

[00:25:21] Speaker 02:
Parrish, asked, found out the license had not been renewed, and communicated that information to the supervisor, Dr. Benz.

[00:25:28] Speaker 00:
So he didn't know that the license hadn't been renewed?

[00:25:31] Speaker 02:
He had no reason to believe that it would be renewed, Your Honor.

[00:25:34] Speaker 02:
It was set to expire at midnight, May 7th, and instead of checking to see if his license was valid, he went and practiced medicine.

[00:25:43] Speaker 02:
So there is a distinction here.

[00:25:45] Speaker 02:
He did go and he went and practiced medicine while somebody else looked for him.

[00:25:51] Speaker 02:
He tends to shift the blame to Dr. Sanders.

[00:25:53] Speaker 02:
Why didn't Dr. Sanders stop him?

[00:25:56] Speaker 02:
Dr. Sanders was only made aware of after Dr. Gums has visited one patient, prescribed medicine, diagnosed the patient,

[00:26:04] Speaker 02:
It was only at that point that Dr. Sanders learned.

[00:26:07] Speaker 02:
And Dr. Sanders had previously been operating under a statement from Dr. Gums on JA-34 that Dr. Gums told Dr. Sanders that he would have everything in order by May 8th.

[00:26:18] Speaker 02:
And that's what Dr. Sanders relied upon.

[00:26:22] Speaker 02:
The court has no further questions.

[00:26:24] Speaker 02:
We'll start with a few questions from the court from the student court.

[00:26:35] Speaker 00:
So Mr. Lutz, how about the $100?

[00:26:39] Speaker 04:
I would say that if you look at the detailed recitation of all the efforts he went through to get his online license renewal for the new process in Puerto Rico, all of which is in the record, I think the process that he walked through,

[00:26:56] Speaker 04:
you will see that he had completed all the paperwork, that he was eligible for renewal, that he had attempted to submit the payments online and, for some reason, that hadn't gone through as planned.

[00:27:06] Speaker 04:
The timing of whether it was substantially complete.

[00:27:10] Speaker 04:
Mr. Grimaldi said the license was being held up because he didn't make payments.

[00:27:17] Speaker 04:
Is that accurate?

[00:27:18] Speaker 04:
I do not believe at that point that it's accurate.

[00:27:19] Speaker 04:
No.

[00:27:20] Speaker 04:
I believe that, as of that point, he had done everything that was required of him.

[00:27:24] Speaker 01:
I thought he testified that he had to pay extra money, that Puerto Rico requested extra money, and that's what he ultimately did, and then was able to ultimately get his... It was my understanding.

[00:27:38] Speaker 04:
I apologize to the court for not having better command of the case that I am relying upon here, but my understanding was that that happened prior to the incident, not after.

[00:27:51] Speaker 04:
It may have possibly, certainly.

[00:27:53] Speaker 04:
But in terms of the timing and the fact that his license was actually issued just six days later, the renewal was.

[00:28:02] Speaker 04:
My understanding was it happens like that.

[00:28:05] Speaker 04:
I will clarify that for the court.

[00:28:06] Speaker 00:
Or can you send us a letter of clarification?

[00:28:09] Speaker 00:
Yes, I will do that.

[00:28:10] Speaker 00:
Maybe both counsels.

[00:28:12] Speaker 00:
If I'm incorrect, I will send it.

[00:28:14] Speaker 00:
We can't interrupt.

[00:28:16] Speaker 00:
Why don't both counsels get together and advise us as to what the record shows?

[00:28:21] Speaker 00:
about whether he had made the required payment or not.

[00:28:26] Speaker 00:
I shall certainly do that, Your Honor.

[00:28:29] Speaker 00:
Thank you very much.

[00:28:30] Speaker 00:
Okay.

[00:28:30] Speaker 00:
Thank you, Mr. Lewis.

[00:28:31] Speaker 00:
Thank both counsels.