Dr. Calvin Day Is Innocent Website

REBUTTALS TO ALLEGATIONS

EXHIBIT C FOR TMB

REBUTTALS TO EACH OF THE SIX COMPLAINANTS LISTED IN THE TEXAS MEDICAL BOARD ORDER OF TEMPORARY SUSPENSION DATED 07/25/2011

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 C contains specific rebuttals to the individual complainant allegations in the 07/25/2011 TMB Order concerning Calvin Lee Day, Jr., M.D. #G1883.

ALLEGATIONS AND REBUTTALS FOR PATIENT 1

Allegations Described In The Texas Medical Board Order Of Temporary Suspension Dated 07/25/2011 for Patient 1: ” On or about August 31, 2010, Patient l t reported to the San Antonio Police Department ("SAPD”) that she had been assaulted by Respondent at his office. Patient 1 told police that on or about August 22, 2010, after a series of Botox injections, Respondent lured her to the back of his office under the guise that he wanted to show Patient 1 some of his physical fitness equipment, which he kept in a locked room. Respondent told Patient I that he needed help with his fitness program and asked for her advice because she was a personal trainer. Patient 1 saw that Respondent had a bed in this room and had soft music playing. Once Patient 1 and Respondent were in the room, respondent closed and locked the door, exposed his genitals to Patient 1, and fondled her breasts and penetrated her vagina against her will. Respondent made unsolicited phone calls to her several times after this incident.”

Specific Rebuttals to Patient 1 Allegations:

August 22, 2010 was a Sunday.
Phone records document that Patient 1 initiated the visit to Dr. Day’s office by calling Dr. Day’s cell phone (and not his office phone) the day before (Saturday afternoon 08/21/2010 at 3:47 PM).
Testimony from Dr. Day’s RN and Dr. Day’s secretary revealed that the purpose of the visit was not to receive Botox but rather to discuss Patient 1’s proposal for Dr. Day to become a client of hers (Patient 1 was a personal trainer). Patient 1 came to Dr. Day’s office for the specific purpose not to receive Botox but rather to talk about a personal training program and to view Dr. Day’s exercise equipment.
The in-office apartment where the exercise equipment was located was not locked from the inside and the doors were by building code equipped with “slip locks.”
The music playing was a radio that was tuned to one of the local radio stations that played pop music and not “soft” music and this radio played 24/7.
Dr. Day worked approximately 100 hours per week and frequently took short power naps, hence the purpose of the bed in his in office apartment.
Dr. Day did not expose his genitals to Patient 1 as evidenced by the fact that
- the alleged sketch and description of the penis given by Patient 1 do not even remotely resemble the true appearance of Dr. Day’s penis in either the flaccid or the erect state, and
- Patient 1 omitted the most notable genitalia feature in her sketch and description.
- Patient 1 purposely waited 10 days to go to the police, because she wanted to avoid the DNA testing which would have exonerated Dr. Day by showing the absence in her vagina of DNA from the skin of Dr. Day’s fingers.
- The calls that Dr. Day made to Patient 1 were done at the request of Patient 1 and the content of the voicemails document this.

General Rebuttals to Patient 1 Allegations:

This is a she-said-he-said case with no witnesses and no DNA evidence.
Texas Administrative Law permits polygraphs as evidence and Dr. Day easily passed his polygraph (see EXHIBIT G). Therefore, his polygraph is credible evidence of his innocence.
Patient 1 has the type of personality history that one would expect from a woman who would file a frivolous sexual assault accusation to wit:
- A lifelong history of pursuing "easy money" as demonstrated by
  - two slip trip, or fall insurance claims, plus
  - a restaurant rock in the food insurance claim, plus
  - an excessive number of additional insurance claims,
  - pleading guilty to shoplifting charges, and
  - Calling her civil attorney immediately after calling the police to file a complaint against Dr. Day.
- An unstable personality as demonstrated by
  - the fact that she called the police 29 (twenty-nine) times more often than her neighbors,
  - Abnormal telephone behavior of
    - repeated hang up calls, and
    - her excessive volume of calls and texts,
    - inability to maintain long term stable employment for more than two years,
    - Maintaining multiple contemporaneous “significant other” relationships.
    - Patient 1’s sexual assault scenario is not credible for many reasons that include, but are not limited to
      - the fact that she falsely alleged that Dr. Day accomplished against her will,
        
        the kissing of her neck,
        
        the fondling of her breasts,
        
        the penis exposure, and
        
        the digital penetration of her vagina,
        
        without any attempt at evasive maneuvers by this fit personal trainer such as
        
        turning,
        
        twisting, or
        
        pushing Dr. Day over when according to her story he had pulled his pants down around his thighs/knees, and
- the fact that she falsely alleged that Dr. Day agreed to let her go because she promised to return in a few minutes to spend more time with him, when in fact
  - Dr. Day had other appointments that morning, and
  - There was no phone call from Dr. Day to her later that morning asking her where she was, why didn’t she come back, etc.
  - Testimony at the Motion for New Trial on 08/26/2013 (Exhibit I) revealed that:
    - Patient 1 admitted that she lied before the Medical Board,
    - Patient 1 told the Assistant District Attorney that she had lied while testifying before the Medical Board,
    - the ADA threatened Patient 1 with prosecution if she did not go forward,
    - Patient 1 retained an attorney to defend her against the DA, and
    - Patient 1 sought a written agreement with Dr. Day in an attempt to avoid a subsequent civil suit against her.

Herein are the trial/hearing excerpts that corroborate these intimations and exonerate Dr. Day.

This First Group Of Excerpts Is Taken From The 06/11/2013 Trial Transcript (Exhibit H) And Serves To Introduce The Remainder Of The Excerpts Which Are Taken From The 08/26/2013 Motion For New Trial Hearing Transcript (Exhibit I)

Page 12, lines 16, 18 thru 25, and page 13, lines 1 thru 5 (Exhibit H)

“MR. DEL CUETO: ……. I did not seek out the representation of Laura Newcomb. She went to the district attorney's office and she was misinformed what the law was. She asked Kirsta Melton in a meeting, What -- what if I don't want to continue? Can I plead the Fifth? And Kirsta Melton told her that only a defendant has a right to plead the Fifth. And then she said, Well, should I seek counsel? Can I get my own private counsel? …..And Kirsta Melton told her, once again, it would cost you $50,000 and she discouraged it. So my client researched before she ever hired me and found out that both statements were a lie and she had a mistrust of the district attorney's office at that point.”

The Remainder of the Excerpts Herein Are Taken From the 08/26/2013 Motion for New Trial Hearing Transcript (Exhibit I)

Page 26, lines 6 thru 8 – “….. Ms. Newcomb had hired Mr. Del Cueto to run interference and protect her from the district attorney's office.”
Page 66, lines 21 thru 24 – “I was sitting in the office when she said that she was afraid of the DA's office and that's the reason she got a lawyer, okay? And she even described it exactly.”
Page 67, lines 10 & 12 thru 15 -- “Ms. Newcomb….. felt threatened…… prior to trial….. First time she said it, I heard her -- …..there in Andrew's office she was scared of the district attorney's office”
Page 68, lines 7 thru 9, 14, 15 “……about being -- feeling threatened by the district attorney, these comments were made during a meeting that you attended?... Prior to trial? A Yes, sir.”
Page 69, lines 1 thru 7 -- “So what I thought is, the case has a lot of publicity. Newcomb knew it wasn't true and she was trying to dismiss the case and they were threatening her by telling her, If you dismiss the case we're going to get you and indict you for lying; it's either going to be you or him. They were making it like that. They were forcing her to lie. That's what I understood, okay”?
Page 19, lines 11, & 13 thru 15 -- “…..she was concerned about…… her prior testimony in Austin….. she had perjured herself…..”
Page 23, lines 22 thru 24 – “Ms. Newcomb…… had expressed concern over her change in testimony and her possible perjury before a state licensing board…..”
Page 27, lines 11 thru 13 – “she really hired Mr. Del Cueto…… there was in her own mind the need for counsel because of prior testimony and perjury……”
Page 68, lines 1 thru 3 – “…..she had made untruthful statements. That's what I understood her to say……”
Page 17, lines 17 &18 –- “The meeting was requested by Ms. Newcomb….”
Page 19, lines 9 & 10 – “…. she had solicited for the meeting,…..”
Page 26, lines 2 & 3 – “…..she asked for the meeting…..”
Page 17, lines 24 & 25, and page 18, line 1 – “And when we were there, Ms. Newcomb was concerned about civil liability and Dr. Day suing her
Page 19, lines 10 & 11 – “…..she was concerned about civil liability…..”
Page 24, lines 4 thru 7 – “It's very unusual for the complainant in a case to solicit a meeting with defense counsel - if you will, the opposition - to express a desire that she be protected from civil liability.”
Page 68, lines 1 thru 3 – “…..she wanted a release because she had made untruthful statements. That's what I understood her to say……”
Page 51, lines 4, 9, & 13 thru 15 – “…. the mutual release… document….. was…. prepared….. in response to Ms. Newcomb's request.”
Page 51, lines 19 & 20 – “A Ms. Newcomb didn't want a mutual release. She only wanted a release initially where she was not going to get sued…..”
Page 67, lines 18, 19, & 22 – “And she said, Well, I know your client and I think he'll sue me……. And then she wanted the release…..”
Page 68, lines 1 thru 3 – “…..she wanted a release because she had made untruthful statements. That's what I understood her to say……”
Page 26, lines 6 thru 10, 14, 15 -- “Ms. Newcomb had hired Mr. Del Cueto to run interference and protect her from the district attorney's office. Yet when she was asked why she hired Mr. Del Cueto, she said because of Dr. Day's people. And I didn't believe that to be a truthful answer,……. I had never heard this Dr. Day's people thing before…”
Page 66, lines 18, 20 thru 25 – “Ms. Newcomb…..I knew she was a liar when I heard her testify because I was sitting in the office when she said that she was afraid of the DA's office and that's the reason she got a lawyer, okay? And she even described it exactly. So I knew she's capable of lying the second she said "Day's people" because that was lie.”
Page 68, lines 7 thru 9, 14, 15 and Page 69, lines 10 thru 15 – “……about being --feeling threatened by the district attorney, these comments were made during a meeting that you attended? Q Prior to trial? A Yes, sir. A. And then in court she turned it around to Day's people. Q So in court you felt that her testimony was inconsistent with what she had said in the meeting? A …….. Inconsistent would be fine, but I thought it was a lie.”
Page 71, lines 7 thru 12 – “A Well, there's three of us sitting there. Jay Norton, Andrew Del Cueto, and me. I mean, they're -- if someone would think that the three of us would say something and she'd say something different, I mean, that's insane. Yeah, yeah, that -- I
Page 27, lines 15 thru 19 and page 30, lines 17, 18 -- “Mrs. Newcomb had gotten an individual in Boerne….. to file a false affidavit that her daughter was living with him and his family so she could attend schools at the Boerne School District…….. -- that she would manipulate situations……..”
Page 27, lines 20 thru 22 -- “…..she had previously been employed at….. Trinity Towers where she was fired for falsifying time records, time cards,….”
Page 27, lines 24 & 25 and page 28, lines 3 thru 5 – “instance or two at Fair Oaks Ranch which led to her termination involving a golf pro, a member……. another trainer from there that we thought would have been a good witness about her ….. being fired and how she then accused sexual harassment out of that as opposed to what her real conduct was.”
Page 28, lines 8 & 9 – “she was involved collaterally……. with a -- illegal poker games and the taking of money out of the country.”
Page 28, lines 11 thru 15 – “…….Elaine Levy who is the wife or ex-wife of Dr. David Levy who was one of the people we believed that she had had an ongoing relationship with and some of the conduct that was involved and that we thought might be appropriate for the jury….”
Page 29, line 14, 17 – “Was there also evidence of her mental instability……? A Yes, sir.”
Page 29, lines 22 thru 24 and page 30, lines – “….facts or inconsistencies in her testimony about the circumstances of her visit to the office, Mr. Day's office?”
Page 30, lines 8 thru 10 and page 49 lines 3 thru 10 – “just how it all started with the 911 call and the initial officer who met her at Starbucks out on I-10. There was conflicts there… Her initial statement to 911 was, I felt like I have been molested, … there was a conflict between how she later related the circumstances to her initial calling. She didn't say she had been sexually assaulted. She didn't say she had been -- anything about penetration and so forth. She -- it was sort of an emotional, I feel like maybe I've been assaulted or molested.”
Page 30, line 11 – “conflicts as it related to building layout…”
Page 30, lines 11, 12 – “conflicts -- photographic, her descriptions of Dr. Day's anatomy.”
Page 31, lines 18 thru 22 and page 32 lines 6 thru 8 – “Q With respect to the ex-husband, sir, what evidence did you anticipate would have been elicited from him if you had called him? A Well, in a general sense her vindictive, manipulative behavior, her need to have people believe in her……. her ability and desire to manipulate, and for lack of a better term, to be an emotional drama queen.”
Page 31, lines 9, 10, 11, 16 thru 19 and page 32, line 1 -- “Q Was there also surveillance conducted of Ms. Newcomb? A Yes, sir…… Q Did that surveillance of Ms. Newcomb reveal certain meetings with persons that if brought to light in the trial would have proved……Dr. Day….innocence? A I believe so…… the surveillance evidence would have greatly upset Ms. Newcomb…..”
Page 58, lines 15, 17, 18, 19 -- “Ms. Newcomb….. before, during, after, after the call to the police…… she called a couple different civil lawyers…….”
Page 59, lines 12, 13 – “calling USAA ….. was real unusual that if you had been sexually assaulted, why would you do that.”

MANUFACTURING “OTHER WOMEN” COMPLAINANTS-- PATIENTS 2 THROUGH 5 AND DISGRUNTLED EMPLOYEE LOUISE FEUGE

On January 27, 2011, Dr. Day was arrested on a false affidavit wherein a detective swore that there was a resemblance between Patient 1’s sketch of an erect penis and police photos of Dr. Day’s flaccid penis. When Patient 1’s sketch is held side by side with the police photos, one sees that there is in fact no resemblance at all. Dr. Day’s manufactured arrest was coupled with a carefully choreographed negative mega media event wherein Dr. Day, instead of being taken directly to the magistrate for processing, was held at the police station so that all of the local news camera people could take their positions. Then, Dr. Day was paraded in front of the television cameras 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, opened the door for opportunists, and induced “mob behavior” through the same psychological mechanisms that produce such well known “mass hysteria” events as
- McCarthyism in the 1950’s in the USA,
- anti-Semitism of the 1930’s --1940’s in Germany,
- the witch trials in the 1600’s in Salem, Massachusetts, and
- the crucifixion of Jesus Christ in the first century.

Each and every one of the complaints of Patients 2 through 5 and disgruntled employee Louise Feuge was filed not at the time of the allegation, but rather immediately after the negative media frenzy and therefore are most assuredly the result of the successful induction of “mob behavior” (“mass hysteria”).

ALLEGATIONS AND REBUTTALS FOR PATIENT 2

Allegations Described In the Texas Medical Board Order Of Temporary Suspension Dated 07/25/2011 For Patient 2: “On or about January 31, 2011, Patient 2 reported to SAPD that Respondent had sexually assaulted her on or about July 29, 2009, at his office during a patient visit. Patient 2 stated to police that after having a skin tag removed, Respondent kissed her, put his tongue in her mouth, indicated that he wanted to perform oral sex on her, and fondled her vagina against her will. According to her statement and phone records, Respondent made unsolicited phone calls to her several times after this incident.”

Specific Rebuttals to Patient 2 Allegations:

Patient 2 did not file her claim at or near the time of the alleged incident on 07/29/2009. Rather, she filed her claim on 01/31/2011, approximately 18 months and then acted only after seeing Dr. Day paraded in front of the television cameras in handcuffs to create a “presumption of guilt” in the minds of the viewers, which was then enhanced by newscasters’ and police spokespersons’ “guilty until proven innocent,” on-camera solicitations for “other women” to step forward.
The medical records of Patient 2 show that she had no skin tag, nor did she have a skin tag removed on 07/29/2009.
The medical assistant who was in the exam room the entire time during Patient 2’s visit has testified that nothing happened during that visit. The medical assistant remembers that she stayed in the room because Patient 2 had expressed an interest in dating Dr. Day. Therefore, she stayed in the room the entire time to keep an eye on Patient 2.
Telephone records show that the telephone calls that Patient 2 alleged were made by Dr. Day to her do not exist. They are absent in the telephone records of Dr. Day, and they are absent in the telephone records of Patient 2. For the Texas Medical Board to publish “Respondent made unsolicited phone calls to her several times after this incident” is a flagrant defamatory lie.

General Rebuttals to Patient 2 Allegations:

In her initial telephone conversation with the police, Patient 2 could not remember the date of the alleged event (not even the year). Surely, a woman who had truly been assaulted would have the date, hour, and minute indelibly etched in her brain.
Five months after the alleged incident, Patient 2 scheduled appointments with Dr. Day for both her and her boyfriend. Why would she want to return to see Dr. Day if her allegation were true?
In her initial telephone conversation with the police, Patient 2 alleged that the assault took place at the beginning of the office visit but in subsequent statements and testimony said that it took place at the end of the office visit.

ALLEGATIONS AND REBUTTALS FOR PATIENT 3

Allegations Described In The Texas Medical Board Order Of Temporary Suspension Dated 07/25/2011 For Patient 3: “On or about January 29, 2011, Patient 3 reported to SAPD that she was sexually assaulted by Respondent sometime in 1999 when she went to Respondent's office on a cold call to sell advertising to Respondent. After her sales presentation, she inquired about laser hair removal. Respondent took Patient 3 loan exam room and asked Patient 3 to see the area from which she was interested in having hair removed. Accordingly, she pulled down her pants so that Respondent could see her bikini line. At such time, Respondent penetrated her vagina with his finger against her will. Patient 3 did not come forward until she saw media coverage of Respondent’s arrest because she was scared.”

Specific Rebuttals to Patient 3 Allegations:

Patient 3 did not file her claim at or near the time of the alleged incident in 1999. Rather, she filed it on 01/29/2011, approximately 12 years later and only after seeing Dr. Day paraded in front of the television cameras in handcuffs to create a “presumption of guilt” in the minds of the viewers, which was then enhanced by newscasters’ and police spokespersons’ “guilty until proven innocent,” on-camera solicitations for “other women” to step forward.
Appointment records indicate that this was not a “cold call” to sell advertising, but rather that she and Dr. Day had met several times before.
It is a bit of a stretch to believe that Patient 3 could have gone all the way from pulling down her pants to allow Dr. Day to see her bikini line to vaginal penetration against her will; the mechanics of that defy imagination. Indeed, the description of the assault alleged by Patient 3 is anatomically impossible (i.e., sitting upright with her panties still on and her pants around her thighs).
Patient 3 did not testify that she did not come forward because she was “scared”, but rather she testified that she did not come forward because her mother worked for Dr. Day. However, her mother left Dr. Day’s employ in 2004, so there was no deterrent from 2004 on.

General Rebuttals to Patient 3 Allegations:

Although Patient 3 swore that she never saw Dr. Day after the alleged event, her medical record shows that three years after the alleged event she became his patient on her own initiative and then had multiple visits with Dr. Day. Inasmuch as Patient 3 was not his patient at the time the allegation was made, it is simply inconceivable that Patient 3 would on her own initiative subsequently become his patient if her allegation were true.
Patient 3 is the daughter of disgruntled former ex-employee and the sister of disgruntled former ex-employee. Patient 3 was fired from her job at KENS TV apparently because Dr. Day did not buy advertising from her. In effect, Dr. Day “fired” her whole family. Therefore, Patient 3’s complaint is more correctly characterized as a former disgruntled employee complaint and not a former patient complaint.
Patient 3 acknowledged in her sworn statement that Dr. Day’s employees were still in the office as she exited my office after the alleged event yet she made no outcry to them at the time.
Dr. Day hired Patient 3’s mother and sister after the alleged event; surely, if Patient 3 were telling the truth, Patient 3 would have been fearful that her mother and sister might also be assaulted, and she would have warned them if indeed she had truly been assaulted.
Dr. Day chose not to buy Patient 3’s advertising proposal; surely, Dr. Day would have bought her advertising in an attempt to keep her quiet if the assault had truly occurred.

ALLEGATIONS AND REBUTTALS FOR PATIENT 4

Allegations Described In The Texas Medical Board Order Of Temporary Suspension Dated 07/25/2011 For Patient 4: “On or about February 9, 2011, Patient 4 reported to SAPD that, during a patient visit sometime in 1986, Respondent made her remove all of her clothing and repeatedly touched a mole near the crevice of her buttocks and kept asking if that was one that she wanted removed. She reportedly felt violated and confused because it was unlike any other appointment she had ever had.”

Specific Rebuttals to Patient 4 Allegations:

Patient 4 did not file her claim at or near the time of the alleged incident in 1986. Rather, she waited approximately 25 years later and filed her complaint on 02/09/2011 -- but only after seeing Dr. Day paraded in front of television cameras in handcuffs, creating a “presumption of guilt” in the minds of the viewers, which was then enhanced by newscasters’ and police spokespersons’ “guilty until proven innocent,” on- camera solicitations for “other women” to step forward.
Patient 4 ’s chief complaint was that “I have a mole directly right above the crack of my rear end.....it was very inappropriate …… for him to touch the mole…..” Notice that the mole was not on or adjacent to her rectum but “right above the crack” which is outside her “genital area.” Notice also that Patient 4 did not allege inappropriate touching of her rectum (“rear end”). Instead, she alleged inappropriate touching of a mole. And since Dr. Day is a dermatologist, and touching skin lesions is part and parcel of a normal dermatology exam, it is ludicrous for a patient to accuse a dermatologist of “inappropriately” touching a mole.
Although Patient 4 now claims that the examination “haunted me my whole life,” she nevertheless stayed after the exam and allowed Dr. Day to perform the procedure of removing the four nevi (i.e., “moles”) from her back. Then, she came back six days later for a wound check and saw Dr. Day personally.
Although Patient 4 asserted that “I’m totally nude,” the photographs in her medical record show that she was gowned.

General Rebuttals to Patient 4 Allegations:

Patient 4 acknowledged that a chaperone was present (i.e., “so the nurse uh came in…she re-entered the room accompanied by Dr. Day”).
Patient 4 believed that it was inappropriate for Dr. Day to have touched the mole in her buttock crease, whereas in truth, palpating skin lesions is the standard of care for dermatology examinations. Had Patient 4 not been misinformed all of these years, perhaps she would not have filed this frivolous complaint.
Although Patient 4 asserted that she complied with “his wishes” and “his request”, her medical record shows that she was the one who requested a “skin cancer check.” Patient 4 requested this “skin cancer check” because her mother had had skin cancer, and this is documented in the medical record.

Patient 4 ’s complaint, in and of itself, is not even a violation of the Texas Medical Practice, and therefore should not have been included as a legitimate complaint. Indeed, the touching of skin lesions is an integral part of a dermatology exam. This complaint clearly is nothing more than the product of ignorance regarding dermatology exams combined with the negative mega media campaign that tainted her memory.

ALLEGATIONS AND REBUTTALS FOR PATIENT 5

Allegations Described in the Texas Medical Board Order of Temporary Suspension Dated 07/25/2011 For Patient 5: “On or about February 10, 2011, patient 5gave a statement to the SAPD describing her experience as Respondent's patient between 1993 through 2000. Specifically, she told police that Respondent made her disrobe completely during patient visits and Respondent proceeded to spread her buttocks apart while she lay on her stomach. Respondent would demand that she roll over to her back and spread her labia apart to look inside her vagina. Allegedly, Respondent look pictures of ''areas he wanted to watch" while she was completely nude. The Patient eventually stopped going to Respondent because she felt uncomfortable with the way Respondent did full body exams.”

Specific Rebuttals to Patient 5 Allegations:

Patient 5 did not file her claim at or near the time of the alleged incident in 2000. Rather, she waited until 02/10/2011, approximately 11 years later, and then acted only after seeing Dr. Day paraded in front of television cameras in handcuffs to create a “presumption of guilt” in the minds of the viewers, which was then enhanced by newscasters’ and police spokespersons’ “guilty until proven innocent,” on-camera solicitations for “other women” to step forward.
Internationally acclaimed dermatologist, Dr. Arthur Rhodes, personally reviewed Patient 5’s medical record and concluded that Dr. Day’s “care was careful, well documented, and appropriate.... “
It would appear that a significant reason for Patient 5 believing that Dr. Day’s exams were inappropriate was that the other dermatologists who cared for Patient 5 after she left Dr. Day’s care did not perform inspection of Patient 5’s breasts, anus, and vagina. Whereas Patient 5 believed that Dr. Day should not have performed the type of examinations that she experienced, in truth, the other dermatologists who cared for Patient 5 after she left Dr. Day’s care indeed should have performed inspection of Patient 5’s breasts, anus, and vagina to comply with the national standard of care for a patient with dysplastic nevi. This conclusion is based on
- dermatology expert Dr. Arthur Rhodes’ opinion of Patient 5’s medical records, and
- on multiple scientific publications.

General Rebuttals to Patient 5 Allegations:

Pictures in the medical records show Patient 5 smiling during her visits and thus clearly not under stress.
There is a letter from her to Dr. Day in the insurance file that shows that Dr. Day and Patient 5 had a very congenial relationship.
The audio recording of her telephone call to the police demonstrates that Patient 5’s husband was upset that Dr. Day had examined his wife’s genitalia on multiple occasions. It was Patient 5’s husband who compelled her to file a complaint, and her husband’s sudden concern was precipitated by the negative images of Dr. Day on television in handcuffs.
Patient 5 admitted that there was always a chaperone present during her exams.
Multiple scientific publications and dermatology expert, Dr. Arthur Rhodes, have verified the medical necessity of periodic total body skin examinations for Patient 5 because Patient 5 had dysplastic nevi.
Dr. Day’s reputation for performing thorough comprehensive skin examinations was a key element to Dr. Day’s success in building Dr. Day’s practice to 40,000 patients. In Dr. Day’s 28 years of practice, he does not recall receiving or hearing a single complaint about his exams. Indeed, Dr. Day’s experience was quite the opposite. He repeatedly received laudatory comments about the thoroughness of his skin exams. Patients often told him that they switched from their general dermatologist to me because he or she felt that his or her prior dermatology exams were not as thorough or as detailed as he or she desired.
Patient 5’s complaint, in and of itself, is not even a violation of the Texas Medical Practice, and therefore should not have been included as a legitimate complaint. This complaint clearly is nothing more than the product of ignorance regarding dermatology exams for patients with dysplastic nevi combined with the negative mega media campaign that tainted her memory and caused unnecessary concern for her husband.

ALLEGATIONS AND REBUTTALS FOR DISGRUNTLED EMPLOYEE LOUISE FEUGE

Allegations Described in the Texas Medical Board Order of Temporary Suspension Dated 07/25/2011 For Disgruntled Employee Louise Feuge: “On or about February 10, 2011, a former employee of Respondent, Louise Feuge, gave a statement to SAPD. Ms. Feuge reported that she worked for Respondent for approximately four weeks during April 2000 and May 2000. She told police that on or about May 13, 2000, Respondent requested that she perform laser hair removal on his back after regular clinic hours. Respondent disrobed completely for this laser hair removal session and then demanded that Ms. Feuge apply the laser to his testicles and anus. Respondent then demanded that Ms. Feuge put the laser into his rectum and pull the trigger. Ms. Feuge did as Respondent demanded because she was scared that he would get angry and attack her. Ms. Feuge resigned from her position at the clinic the following week and only reported the incident to police after seeing media coverage of Respondent's arrest.”

Specific Rebuttals to Disgruntled Employee Louise Feuge Allegations:

Disgruntled Employee Louise Feuge did not file her claim at or near the time of the alleged incident in 2000. Rather, she filed it on 02/10/2011, approximately 11 years later and then only after seeing Dr. Day paraded in front of the television cameras in handcuffs to create a “presumption of guilt” in the minds of the viewers, which was then enhanced by newscasters’ and police spokespersons’ “guilty until proven innocent,” on-camera solicitations for “other women” to step forward.
Louise Feuge was a disgruntled former employee who Dr. Day fired on 05/13/2000 for cause but gave the option to submit a letter of resignation in order to save face. Payroll records confirm that Feuge was “terminated.”
Feuge is a terminated, disgruntled former employee who has four verifiable lies in her testimony:
- Police photos show that Dr. Day does not have two golf ball sized nodules in his penis as depicted by Feuge.( Exhibit B)
- The employee who did the closeout was always there for two hours after everyone else left, so Feuge was not alone in the office with Dr. Day.
- The building was owned by Methodist Hospital and so of course, the locks on the exit doors specified by Feuge at the front of Dr. Day’s office were slip locks (by building code), thus Feuge was not locked in as she claimed.
- The medical record of the employee that Feuge claimed to have treated immediately before she treated Dr. Day shows that someone else other than Feuge treated her that day.

SUMMARY

After reading the above, it is clear that in each and every case, the overwhelming preponderance of evidence favors Dr. Day.

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