TX MED BOARD COMMITS DEFAMATION

EXHIBIT D FOR TMB

DEFAMATORY STATEMENTS IN THE TEXAS MEDICAL BOARD ORDER OF TEMPORARY SUSPENSION DATED 07/25/2011 CONCERNING CALVIN LEE DAY, JR., M.D.

 

EXHIBIT LIST

  • 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)

 

This Exhibit D details the untrue defamatory language contained in the Texas Medical Board Order Of Temporary Suspension Dated 07/25/2011 concerning Calvin Lee Day, Jr., M.D. hereinafter referred to as “TMB Order” that is posted on the TMB website in a PDF file. There is another Texas Medical Board Order of Temporary Suspension Dated 06/14/2011, and the statements made herein concerning the 07/25/2011 TMB Order also apply to the 06/14/2011 TMB Order for the following reasons:

  • The 07/25/2011 TMB Order supplanted the 06/14/2011 TMB Order,
  • The language in the two TMB orders is almost identical, and
  • The 06/14/2011 order was generated without any due process whatsoever (i.e. without notice, without Dr. Day being present, and without legal representation).

The defamatory sections in the TMB Order are enumerated and discussed below.

  1. 1.       On page 3  items 8 & 9 of the TMB Order, are written Findings of Fact regarding Patient 4 and Patient 5, yet neither of these patients testified at the 07/25/2011 Medical Board Hearing, and thus their complaints should not have been included in the this TMB Order under Finding of Facts. Moreover, the specific complaints of Patient 4 and of Patient 5 deal with medical necessity and the proper conduct of a dermatology exam; the complaints of Patient 4 and of Patient 5 are NOT violations of the Texas Medical Practice Act. Experts have examined the medical records of Patient 4 and of Patient 5 and concluded that Dr. Day’s care was proper and appropriate. By including in this TMB Order the unrebutted allegations of patients who did not testify at the Hearing, the Texas Medical Board has committed a defamatory act
    1. a.       because there were no facts to find because Patient 4 and by Patient 5 did not testify, and
    2. b.      because the statements made by Patient 4 and by Patient 5 have been disproven by Expert Witnesses.
    3. 2.        On page 2 of the TMB Order under item 4 is written the following “On or about January 27, 2011, Respondent was arrested by SAPD for sexually assaulting Patient 1”.

Dr. Day has not had an opportunity to prove his innocence in a court of law so the truthful and rightful language would be “….for ALLEGEDLY sexually assaulting patient 1.”

  1. 3.       On page 2 of the TMB Order under item 4 is written “Following media coverage of Respondent's arrest, additional women came forward with allegations that Respondent sexually assaulted them as well”.

“Following media coverage of Respondent's arrest….” Is a mischaracterization of the truth to such a degree, that it is factually incorrect. The “media coverage” was a carefully choreographed negative mega media event with the intent to induce a mass hysteria group behavior phenomenon. Dr. Day was arrested and instead of being taken directly to the magistrate for processing, he was held at the police station so that all of the local news camera people could be in place, and then Dr. Day was shown on television in handcuffs to create a presumption of guilt portrayal in the minds of the viewers and this guilt until proven innocent portrayal was enhanced when the newscasters and police spokespersons made on camera solicitations for “other women” to step forward. This negative media display tainted the memories of many of Dr. Day’s patients and opened the door for opportunists.

  1. 4.       On page 3 item 10 of the TMB Order is written, “During the investigation, SAPD collected photographic evidence of Respondent's genitalia, which helped substantiate the victims' allegations of sexual assault and indecent exposure because some victims were able to describe Respondent's uniquely identifiable penis”.
    1. a.       This statement is a flagrant lie and as such is defamatory.
    2. b.      Note that the Order used the unfairly prejudicial term “victims” instead of the correct term “complainants” and is therefore defamatory.
    3. c.       Two of the complainants, Patient 1 and disgruntled employee Louise Feuge, each drew a sketch and gave a description of a penis that each alleged was Dr. Day’s.  These sketches and descriptions are dissimilar to each other and neither one of sketches/descriptions even remotely resembles the true appearance of Dr. Day’s penis.
      1. a.       Louise Feuge testified that Dr. Day had two golf ball sized nodules in his penis, but the genitalia photos taken by the police show clearly that this is not the case.
      2. b.      Patient 1 stated that the middle portion of Dr. Day’s erect penis shaft not counting the tip or the base was 6 to 8 inches long implying a 9 to 11 inch penis. Patient 1 also alleged that Dr. Day had a penis implant. Both of these statements are wholly inaccurate. Moreover, the most notable feature of Dr. Day’s genitalia is that he has no pubic hair and Patient 1 failed to include this most noticeable feature in her description.
      3. d.      The prosecuting attorney in the 07/25/2011 TMB Hearing acknowledged the fact that they did not match in her closing argument. Moreover, the prosecuting attorney used the fact that Patient 1 drew a sketch in the erect state and the photos were of in the flaccid state to explain why the sketch and the photos did not match.

 

Here is what Texas Medical Board prosecutor said in her closing argument at the 07/25/2011 Hearing:

                                Page 367 of the transcript

“14 ……………… And

15 the defense purports that one of the witnesses Laura

16 Newcomb could not did not describe Dr. Day’s penis.

17 She drew a picture of it in an erect state…….”

19 Furthermore and the photos that you have

20 before you are of Dr. Day’s penis in a flaccid state

21 not erect.”

  1. e.      Given the fact that the prosecuting attorney who  acknowledged the non-matches on the genitalia issue in her closing arguments, was also the same attorney who authored the TMB Order, she was most disingenuous indeed, to put it mildly, when she wrote in the TMB Order “……victims were able to describe Respondent's uniquely identifiable penis”.

Clearly, this was a false and misleading defamatory statement.

  1. 5.       On page 3 item 10 of the TMB Order is written “…….Respondent is a continuing threat to the public welfare and a real danger to the health of Respondent's patients or to the public from the acts or omissions of Respondent caused through Respondent's lack of competence, impaired status, or failure to care adequately for Respondent's patients”.

There was no evidence presented at the 07/25/2011 TMB  Hearing to demonstrate Dr. Day’s “lack of competence”; there was no evidence presented to show that Dr. Day had “impaired status”, and there was no evidence presented that Dr. Day had failed to “adequately care for” his ”patients”. This statement in the TMB Order is a flagrant lie.

  1. 6.       Beginning on page 3 and continuing onto page 4 of the TMB Order are the “CONCLUSIONS OF LAW”.

Because the “Conclusions of Law” in the TMB Order germinated  from the illegitimate defective seeds in the  Findings of Fact, it should come as no surprise  that the fruit of those bad seeds is not edible (i.e., the Conclusions of Law in the TMB Order are untrue and defamatory.) 

  1. 7.        On page 4 item 2. a. of the TMB Order is written “Respondent has committed a prohibited act or practice within the meaning of Section 164.051(a)(4) based on Respondent's inability to practice medicine with reasonable skill and safety to patients as a result of any mental or physical condition;”

There was no evidence presented at the 07/25/2011 TMB  Hearing to demonstrate that Dr. Day had  “any mental or physical condition“. This statement in the TMB Order is a flagrant lie. Dr. Day has never been diagnosed with any mental or physical impairment and has practiced successfully for 28 years building his practice to almost 40,000 patients (including 20,000 women) with 200 visits per week.  The Texas Medical Board has received letters from over 30 of his female patients attesting to his professionalism and behavior.

  1. 8.       On page 4 item 2. b. of the TMB Order is written “Respondent has committed a prohibited act or practice within the meaning of Section 164.052(a)(5) based upon Respondent's unprofessional or dishonorable conduct, as further defined by Board Rules 190.8(2)(E), engaging in sexual contact with a patient; 190.8(2)(F), engaging in sexually inappropriate behavior or comments directed towards a patient; 190.8(2)(K), behaving in an abusive or assaultive manner towards a patient or patient's family that interferes with patient care; and 190.8(2)(R), violation of federal or state law whether or not there is a complaint, indictment, or conviction;

Each of the six complainants allegations have been successfully rebutted in Exhibit C. There is no credible evidence of any sexual impropriety other than words from four complainants who had “axes to grind” and from two complainants who simply misunderstood issues of medical necessity and procedural components of a dermatology skin cancer surveillance exam. Dr. Day easily passed his polygraph (see EXHIBIT G). Five of the six complainants did not surface until Dr. Day was shown on television in handcuffs to create a “presumption of guilt” portrayal in the minds of the viewers and this “guilty until proven innocent” portrayal was enhanced when the newscasters and police spokespersons made on camera solicitations for “other women” to step forward. This negative media display tainted the memories of many of Dr. Day’s patients and opened the door for opportunists.

  1. 9.       On page 4 item 2. c. of the TMB Order is written “Respondent has committed a prohibited act or practice within the meaning of Section 164.052(a)(5) and 164.053(a)(1) based on Respondent's commission of an act that violates any state or federal law if the act is connected with the physician's practice of medicine; specifically, Texas Penal Code Section 22.011, relating to sexual assault; and Civil Practice and Remedies Code, Chapter 81, relating to exploitation by health care provider.”

The Texas Medical Board has no authority in criminal matters and Dr. Day has no conviction relative to “Texas Penal Code Section 22.011, relating to sexual assault”.  Likewise, a trial by jury is required to determine violation of “Civil Practice and Remedies Code, Chapter 81, relating to exploitation by health care provider” and no such case has even been filed against Dr. Day, much less adjudicated. Moreover, this particular citation does not even apply to Dr. Day because he is not a mental health care  provider. Thus, the Texas Medical Board has no authority to make these conclusions of law in reference to their citations, and as such are they defamatory.

In sum, the Texas Medical Board Order of Temporary Suspension Dated 07/25/2011 concerning Calvin Lee Day, Jr., M.D. is a defective document that contains many untruths and defamatory statements. The horrific unfairly prejudicial nature of the TMB Order is magnified when this Exhibit D is combined with Exhibit C, which contains the specific rebuttals to each of the six complainants.