ANN COMERIO'S LTR TO TX MED BOARD

Law Office of Ann Comerio

                 THE PETROLEUM CENTER                

               900 NE Loop 410, Suite D 303              

                                               San Antonio, Texas 78209                     

 www.girlslaw.com

D. Ann Comerio, Attorney at Law 

E-Mail: acomerio@girlslaw.com                                

Tracie S. Hasslocher Administrator/Paralegal

E-Mail: tdunlap@girlslaw.com

Telephone:  210-541-9300                                                          

Facsimile:  210-541-9399

May 30, 2014

 

SCOTT FRESHOUR, GENERAL COUNSEL

TEXAS MEDICAL BOARD

333 GUADALUPE STREET, SUITE 3-610

AUSTIN, TX 78701

P.O.BOX 2018

AUSTIN TX 78768-2018

RE: NEW REVELATIONS CONCERNING CALVIN LEE DAY, JR., M.D. #G1883        

 

Dear General Counsel Freshour:

As an attorney of record for CALVIN DAY, JR., M.D. #G1883, I wish to call your attention to new exculpatory revelations concerning CALVIN LEE DAY, JR., M.D. #G1883 that are narrated below and detailed in the attached EXHIBITS A through K.

Herein is a summary of new exculpatory revelations in Dr. Day’s case:

  1. New revelations show that Dr. Day’s initial arrest on 01/27/2011 was based on a false affidavit filed by an apparent overzealous detective. The detective swore there was a match between a sketch drawn by Patient 1 of an erect penis (Exhibit A) and photos taken by police of Dr. Day’s flaccid penis (Exhibit B). As you can see by holding Exhibit A side by side with Exhibit B, there is no match at all, even if you were to give the detective wide latitude. Moreover, everyone knows that the attempt to make such a “erect-flaccid” comparison is ludicrous; this act of attempting to draw conclusions based on such a fallacious comparison is in and of itself evidence of an unfairly prejudicial state of mind by the detective.
  2. New evidence presented at a Hearing held on 08/26/2013 in the 379th District Court indicated that among other things, Patient 1 lied in her 07/25/2011 testimony before the Texas Medical Board, and that she retained an attorney to represent her because of this lie, and that she sought an agreement from Dr. Day not to sue her (see EXHIBITS C, H,I). 
  3. New revelations regarding each of the six TMB complainants against Dr. Day shows that in each case, there were ulterior motives for filling these complaints and that in each case, the preponderance of the new evidence overwhelmingly favors Dr. Day (see EXHIBITS C, I).
  4. The  process to develop the first Texas Medical Board Order dated 06/14/2011 was accomplished without due process (i.e., without notifying Dr. Day in advance and without Dr. Day or his attorney having the opportunity to present rebuttal arguments or documentary rebuttal evidence to the allegations) (see Exhibit F), and
  5. The process to develop the second Texas Medical Board Order dated 07/25/2011 was unfairly prejudicial because
    1. it was accomplished
      1.                                           i.    without the compelling rebuttal evidence contained in the medical records of the complainants (EXHIBIT C),
      2.                                          ii.    without the evidence contained in Dr. Day’s polygraph report, which shows his innocence (EXHIBIT G), and
      3.                                         iii.    without the compelling evidence and records to impeach the former employee,
    2. with apparent inherent bias (EXHIBIT F) because
      1.                                           i.    The three-member panel at this hearing were all women, and given the board member male-to-female ratio at that time, the chances that all three panel members would be women was less than one in thirty (anytime p is less than 0.05, it is statistically significant; the p value in this instance was 0.03),  and  
      2.                                          ii.    The Executive Director of the Texas Medical Board is a woman, as were the two prosecuting attorneys,
    3. With apparent bias (EXHIBIT D) because
      1.                                           i.    Two of the patients listed in the findings of fact (i.e., Patient 4 and Patient 5) did not even testify at the 07/25/11 Hearing.
    4. With apparent bias because at least one of the legal citations in the 07/25/2011 order do not even apply to Dr. Day because he is not a mental health care  provider (EXHIBIT D)
  6. Five of the six complainants listed in the Texas Medical Board Order surfaced only after a false arrest warrant affidavit was filed by an apparently overzealous detective, accompanied by a carefully choreographed negative mega-media frenzy.  Indeed, not one of these five complainants filed claims at or near the time of the allegation and each and every one of them acted only after seeing “presumption of guilt” televised images of Dr. Day in handcuffs accompanied by “presumption of guilt” invitations by police and news people for “other women” to step forward, i.e. a call for mass hysteria. Moreover, the one complainant who started this abominable cascade of events has now said that she lied at the Texas Medical Board Hearing from which these orders emanated. (EXHIBITS C, H, I)
  7. Prior to patient 1’s complaint against Dr. Day filed on 08/31/2010, there were no complaints of sexual impropriety filed against Dr. Day with the Texas Medical Board, the police, the Texas Workforce Commission, or with any other authority during the 27-year period from the opening of his private practice on June 13, 1983 through August 30, 2010. The absence of any complaints is especially significant because during this 27 year time period, Dr. Day cared for approximately 40,000 patients that included approximately 20,000 women, and he performed approximately 100,000 skin surveillance exams on women that included inspection of the breasts, vagina, and rectum; he likewise performed the same type of corresponding exams on men as well. These full-body exams were performed in accordance with the specifications by the American Academy of Dermatology.  During this same time period, Dr. Day also employed approximately 400 women with the corresponding requisite pool of disgruntled former female employees.
  8. Dr. Day’s son committed suicide in the wake of this frenzied and humiliating environment that surrounded his father and the entire family.

Surely, Dr. Day and his family have endured unbearable suffering because of

  1. the false accusations by Patient 1,
  2. the false arrest warrant affidavit filed by the detective,
  3. the mega-media event surrounding Dr. Day’s initial arrest that created an atmosphere of mass hysteria causing the manufacture of additional false accusations,
  4. the inequitable 07/25/2011 TMB hearing, resulting in the suspension of Dr. Day’s license, and
  5. The apparent prosecutorial misconduct by the Bexar County District Attorney’s Office (EXHIBITS J, K, I).

In light of the compelling evidence narrated above and contained in the attached EXHIBITS A through K,  

  1. Would you please remove from the TMB website, the PDF files containing the 06/14/11 and 07/25/11 Orders, because these new revelations clearly demonstrate that the TMB Orders contain wholly inaccurate and defamatory information, and
  2. Would you also please make the requested changes in Dr. Day’s online profile on the TMB website as specified in EXHIBIT E so that the information is accurate, because the present language is clearly defamatory.

                                    Very truly yours,

 

                                                                                    D. Ann Comerio       

ENCLOSURES:         EXHIBITS A THROUGH K

  • EXHIBIT A is a sketch drawn by Patient 1 of an erect penis that she alleged was a depiction of Dr. Day’s penis.
  • EXHIBIT B is a photo taken by the Sexual Assault Nurse Examiner (SANE) of Dr. Day’s flaccid penis showing “no-match” with EXHIBIT A. (The detective swore out a false affidavit stating that the sketch in EXHIBIT A AND the photo in EXHIBIT B  resembled each other when clearly they do not.)
  •  EXHIBIT C contains specific rebuttals to the individual complainant allegations in the 07/25/2011 TMB Order concerning Calvin Lee Day, Jr., M.D.  #G1883.
  • EXHIBIT D details the untrue and inaccurate defamatory language contained in the 07/25/2011 TMB Order concerning Calvin Lee Day, Jr., M.D.  #G1883 .
  • EXHIBIT E details the online profile defamatory inaccuracies on the Texas Medical Board website concerning Calvin Lee Day, Jr., M.D.  #G1883
  • EXHIBIT F contains unfairly prejudicial actions by the staff of the Texas Medical Board concerning Calvin Lee Day, Jr., M.D. #G1883.
  • EXHIBIT G is Dr. Day’s polygraph showing his innocence.
  • EXHIBIT H contains pages 12-13 of the 6/11/2013 trial on the merits transcript re: Patient 1 retaining an attorney to represent her against the District Attorney because she did not want to continue and wanted to plead the Fifth
  • EXHIBIT I is the entire transcript of the 08/26/2013 Motion For New Trial Hearing
  • EXHIBIT J references portions of Exhibits I and K regarding apparent prosecutorial Misconduct in the Dr. Calvin Day case
  • EXHIBIT K contains pages 10 and 24 of the 6/11/2013 trial on the merits regarding threats made by the First Assistant District Attorney against the attorneys for Dr. Day concerning an alleged witness tampering investigation, when in fact, it was later disclosed that there never was such an investigation (See Exhibits J and I)