Saturday, August 20, 2005
Texas Bar needs to Discipline Attorney Freshour of the TSBME
December 20, 2004
State Bar of Texas
Grievance Committee
Re; Attorney Scott Freshour
I am submitting a formal complaint regarding this attorney who has demonstrated unprofessional conduct by not following due process and rules of evidence when:
(1) He initiated the “temporary suspension” of my medical license without following “due process” and alleging that I was a continuing threat to the public in July 2002 when the record perfectly demonstrates that I had performed 546 surgeries from 1999-2002 at three different hospitals without any patient or medical staff complaints. Rule 187.57 and Act 151.002(a) (2) is defined in the Texas Administrative Code, that a “continuing threat to the public welfare” means a real and present danger to the health of a physician’s patient caused through the physician’s lack of competence, or failure to care adequately for the physician’s patients. A real and present danger exists if patients have an exposure to or risk injury that is not merely abstract, hypothetical or remote and is based on actual actions or inactions of the physician. The cases that Mr. Freshour tried to allege wrongdoing and substandard care included a total of 18 patients seen from 1996-1999. Of those 18, 5 were immediately thrown out by the SOAH judge for lack of evidence at the start of the hearing. Of the 13 remaining, I was totally cleared of 10, with one issue each in two patients and two issues in the third. These three patients had been treated by me in 1996 and 1997. One patient died from complications of having a complicated giant aneurysm in 1996. The other two patients defended me at the hearing having no problems with my surgery as they did well with one patient having back surgery in 1998, the other a craniotomy in 1997. He exaggerated these cases trying to make me look like an incompetent physician when the facts demonstrated the opposite.
Additionally, the Temporary Suspension hearing was a sham since I did not receive proper notification. I received less than 3 days notice and actually received the original complaints at my home on Monday the following week when the hearing was on Friday as attested by a UPS receipt. When I did arrive to the hearing on Friday and asked to present witnesses, the TSBME board members refused.
(2) He made countless errors during the initial investigation by not adequately reviewing 18 patient charts that were the basis of the “temporary suspension”
(3) He was shown that 12 of the 13 patients to have alleged “standard of care” issues were determined at SOAH to have met the “standard of care”
(4) He had 5 complaints struck from the original SOAH complaint as not having any substance
(5) He had out of 93 Findings of Fact in the Second Amended Complaint; the ALJ dismissed another 11 as allegations not being evident in the patients chart bring the number down to 82
(6) He admitted to SOAH following the hearing when consideration for post-trial mediation was proposed by the ALJ “that no one other than Board counsel had reviewed all the information since the trial on the merits”.
(7) He had of the remaining 82 Findings of Facts; the ALJ’s Proposal for Decision threw out an additional 78 findings. This in effect means that the “Temporary Suspension” of my medical license on July 19, 2002 was not truly based on 93 investigated findings but in fact a total of potentially four (4) Findings of Fact on three patients not 18. This means that he correctly identified 4.3% of the Complaint. One would expect a much higher % of findings if one were to prosecute a physician demanding that they surrender their license or have it revoked. Can the State Bar of Texas allow attorneys working for a state agency be so careless and callous in their investigations of other professional people? How in fact is Mr. Freshour protecting the public when he himself can’t even determine the true facts of a case and relies on the ALJ’s to do his homework for him at the expense of the Texas taxpayers and the accused physicians?
Below are several examples of Mr. Freshour providing false, deceptive or misleading information to members of the TSBME and their experts. The fact that so many allegations were dismissed demonstrates how desperate Mr. Freshour was to make a case that had no reason to be started in the first place.
Patient TL- Nowhere in the patient’s chart does it reflect that I left the O.R. without a doctor in the room. Additionally, I was accused of leaving the O.R. and going to another building which is false.
Patient EF- The allegation that I misdiagnosed the patient is not found. In fact it is stated throughout the chart what his diagnosis was.
Patient ML- The allegation was written in such a way as to implicate me as causing the pneumothorax, and wound infection in this patient. The chart however during the hearing revealed quite obviously that the anesthesiologist had caused the pneumothorax and the nursing staff had caused the wound infection by leaving the patient in her own stool for four hours.
Patient JS- The allegation was again written to implicate me as the doctor who had placed an epidural steroid injection in the patient’s back when in fact an anesthesiologist had performed the ESI.
Patient GB- The allegation stated that I had performed a laminectomy and fusion on a person in which I had in fact only performed a decompression and repair of a congenital cyst.
Patient PR- Allegations that I had left the O.R. without another doctor or ensuring availability of fluro equipment was made which after review of the chart could not be demonstrated.
Patient TT- Allegations that the patient’s primary physician recommending something other than was done was alleged and review of the chart again demonstrated the complete opposite. Allegations of not diagnosing the correct medical condition were again not demonstrated after reviewing the patient’s chart. I was also initially accused of performing an EJD procedure (G.I. endoscope) which I never performed.
Patient CY- Allegations of an infection were never found in the chart. Multiple other mistakes by Nurse Miller including allegations of not leaving timely post-op orders were found to be wrong after reviewing the chart.
Patient AJ- Allegations of not identifying, documenting and mistreating a wound infection were again not found when the chart was reviewed during the hearing. Allegations of discharging the patient to rehab with a wound infection were made but further review of the chart demonstrated that this had not happened.
Patient BR- Allegations were made that the patient had suffered intraoperative complications including an MI and pulmonary insufficiency were again not demonstrated during the hearing when the chart was reviewed.
Patient HS- Allegations that the patient was still having problems from the surgery were again unfounded and blamed on me. When the chart was reviewed, it was found that the patient had suffered a fracture while in rehab and had developed severe pain from that, not from the back surgery. The surgery was not ill-advised as demonstrated in the chart and during the hearing.
Patient CP- Allegations of deep venous thrombosis were made which was never found in the chart. It was also noted during the hearing that the surgery was no overly aggressive, nor ill-advised.
Patient EA- Allegations were made about not reporting a fracture of the Anterior Superior Iliac Spine (ASIS) as a complication. This again was not identified on the chart as the Op note clearly stated that a fracture had occurred and was repaired during surgery. Another allegation stated that no postoperative x-rays had been ordered and this again was demonstrated to have not been the case when reviewing the chart.
These are examples of gross negligence since Attorney Freshour failed to correctly investigate these patients and this led to misinformation going to the TSBME. As a result of this fraudulent pre- investigative work, Attorney Freshour was able to convince the TSBME hearing panel through exaggerated claims of injuring patients and substandard care that I was a danger to the public. It was Attorney Freshour’s duty to secure the data and information prior to making outlandishly false and fraudulent claims of substandard patient care to this hearing panel. One would not expect this from an experienced Staff Attorney unless his goal was to defraud the doctor in an attempt to win an investigation regardless of the fact that the allegations were unsubstantiated and untrue. It is very obvious that Attorney Freshour did not fully investigate the allegations before trying the case since he relied on the fact that the TSBME is an agency that is judge, jury, and executioner and so even after completing a shabby investigation and hearing, the TSBME could still help him win the case since they have the last word.
This attorney is under your jurisdiction since you provided him with a license to practice law in Texas. It is your responsibility to investigate him. I look forward to hearing back from you.
Sincerely
State Bar of Texas
Grievance Committee
Re; Attorney Scott Freshour
I am submitting a formal complaint regarding this attorney who has demonstrated unprofessional conduct by not following due process and rules of evidence when:
(1) He initiated the “temporary suspension” of my medical license without following “due process” and alleging that I was a continuing threat to the public in July 2002 when the record perfectly demonstrates that I had performed 546 surgeries from 1999-2002 at three different hospitals without any patient or medical staff complaints. Rule 187.57 and Act 151.002(a) (2) is defined in the Texas Administrative Code, that a “continuing threat to the public welfare” means a real and present danger to the health of a physician’s patient caused through the physician’s lack of competence, or failure to care adequately for the physician’s patients. A real and present danger exists if patients have an exposure to or risk injury that is not merely abstract, hypothetical or remote and is based on actual actions or inactions of the physician. The cases that Mr. Freshour tried to allege wrongdoing and substandard care included a total of 18 patients seen from 1996-1999. Of those 18, 5 were immediately thrown out by the SOAH judge for lack of evidence at the start of the hearing. Of the 13 remaining, I was totally cleared of 10, with one issue each in two patients and two issues in the third. These three patients had been treated by me in 1996 and 1997. One patient died from complications of having a complicated giant aneurysm in 1996. The other two patients defended me at the hearing having no problems with my surgery as they did well with one patient having back surgery in 1998, the other a craniotomy in 1997. He exaggerated these cases trying to make me look like an incompetent physician when the facts demonstrated the opposite.
Additionally, the Temporary Suspension hearing was a sham since I did not receive proper notification. I received less than 3 days notice and actually received the original complaints at my home on Monday the following week when the hearing was on Friday as attested by a UPS receipt. When I did arrive to the hearing on Friday and asked to present witnesses, the TSBME board members refused.
(2) He made countless errors during the initial investigation by not adequately reviewing 18 patient charts that were the basis of the “temporary suspension”
(3) He was shown that 12 of the 13 patients to have alleged “standard of care” issues were determined at SOAH to have met the “standard of care”
(4) He had 5 complaints struck from the original SOAH complaint as not having any substance
(5) He had out of 93 Findings of Fact in the Second Amended Complaint; the ALJ dismissed another 11 as allegations not being evident in the patients chart bring the number down to 82
(6) He admitted to SOAH following the hearing when consideration for post-trial mediation was proposed by the ALJ “that no one other than Board counsel had reviewed all the information since the trial on the merits”.
(7) He had of the remaining 82 Findings of Facts; the ALJ’s Proposal for Decision threw out an additional 78 findings. This in effect means that the “Temporary Suspension” of my medical license on July 19, 2002 was not truly based on 93 investigated findings but in fact a total of potentially four (4) Findings of Fact on three patients not 18. This means that he correctly identified 4.3% of the Complaint. One would expect a much higher % of findings if one were to prosecute a physician demanding that they surrender their license or have it revoked. Can the State Bar of Texas allow attorneys working for a state agency be so careless and callous in their investigations of other professional people? How in fact is Mr. Freshour protecting the public when he himself can’t even determine the true facts of a case and relies on the ALJ’s to do his homework for him at the expense of the Texas taxpayers and the accused physicians?
Below are several examples of Mr. Freshour providing false, deceptive or misleading information to members of the TSBME and their experts. The fact that so many allegations were dismissed demonstrates how desperate Mr. Freshour was to make a case that had no reason to be started in the first place.
Patient TL- Nowhere in the patient’s chart does it reflect that I left the O.R. without a doctor in the room. Additionally, I was accused of leaving the O.R. and going to another building which is false.
Patient EF- The allegation that I misdiagnosed the patient is not found. In fact it is stated throughout the chart what his diagnosis was.
Patient ML- The allegation was written in such a way as to implicate me as causing the pneumothorax, and wound infection in this patient. The chart however during the hearing revealed quite obviously that the anesthesiologist had caused the pneumothorax and the nursing staff had caused the wound infection by leaving the patient in her own stool for four hours.
Patient JS- The allegation was again written to implicate me as the doctor who had placed an epidural steroid injection in the patient’s back when in fact an anesthesiologist had performed the ESI.
Patient GB- The allegation stated that I had performed a laminectomy and fusion on a person in which I had in fact only performed a decompression and repair of a congenital cyst.
Patient PR- Allegations that I had left the O.R. without another doctor or ensuring availability of fluro equipment was made which after review of the chart could not be demonstrated.
Patient TT- Allegations that the patient’s primary physician recommending something other than was done was alleged and review of the chart again demonstrated the complete opposite. Allegations of not diagnosing the correct medical condition were again not demonstrated after reviewing the patient’s chart. I was also initially accused of performing an EJD procedure (G.I. endoscope) which I never performed.
Patient CY- Allegations of an infection were never found in the chart. Multiple other mistakes by Nurse Miller including allegations of not leaving timely post-op orders were found to be wrong after reviewing the chart.
Patient AJ- Allegations of not identifying, documenting and mistreating a wound infection were again not found when the chart was reviewed during the hearing. Allegations of discharging the patient to rehab with a wound infection were made but further review of the chart demonstrated that this had not happened.
Patient BR- Allegations were made that the patient had suffered intraoperative complications including an MI and pulmonary insufficiency were again not demonstrated during the hearing when the chart was reviewed.
Patient HS- Allegations that the patient was still having problems from the surgery were again unfounded and blamed on me. When the chart was reviewed, it was found that the patient had suffered a fracture while in rehab and had developed severe pain from that, not from the back surgery. The surgery was not ill-advised as demonstrated in the chart and during the hearing.
Patient CP- Allegations of deep venous thrombosis were made which was never found in the chart. It was also noted during the hearing that the surgery was no overly aggressive, nor ill-advised.
Patient EA- Allegations were made about not reporting a fracture of the Anterior Superior Iliac Spine (ASIS) as a complication. This again was not identified on the chart as the Op note clearly stated that a fracture had occurred and was repaired during surgery. Another allegation stated that no postoperative x-rays had been ordered and this again was demonstrated to have not been the case when reviewing the chart.
These are examples of gross negligence since Attorney Freshour failed to correctly investigate these patients and this led to misinformation going to the TSBME. As a result of this fraudulent pre- investigative work, Attorney Freshour was able to convince the TSBME hearing panel through exaggerated claims of injuring patients and substandard care that I was a danger to the public. It was Attorney Freshour’s duty to secure the data and information prior to making outlandishly false and fraudulent claims of substandard patient care to this hearing panel. One would not expect this from an experienced Staff Attorney unless his goal was to defraud the doctor in an attempt to win an investigation regardless of the fact that the allegations were unsubstantiated and untrue. It is very obvious that Attorney Freshour did not fully investigate the allegations before trying the case since he relied on the fact that the TSBME is an agency that is judge, jury, and executioner and so even after completing a shabby investigation and hearing, the TSBME could still help him win the case since they have the last word.
This attorney is under your jurisdiction since you provided him with a license to practice law in Texas. It is your responsibility to investigate him. I look forward to hearing back from you.
Sincerely
// posted by texas shammed @ 5:41 PM 
