Podiatrist Garey Lee Weber Permitted to Resume Practice

Stephen Barrett, M.D.

In July 2005, the California Board of Podiatric Medicine reinstated Gary Lee Weber, whose license was revoked in 2001. The reinstatement order, shown below, placed Weber on probation for five years with the provision that he follow the American College of Foot and Ankle Surgeons' Preferred Practice Guidelines and have his practice monitored for three years. The guidelines preclude further use of a questionable bunion operation that got him into trouble. Quackwatch has a detailed account of his regulatory history.

BEFORE THE
BOARD OF PODIATRIC MEDICINE
DEPARTMENT OF CONSUMER AFFAIRS
STATE OF CALIFORNIA

In the Matter of the Petition for Penalty
Relief/Reinstatement of Revoked
Certificate of:

GAREY LEE WEBER
P.O. Box 4109
Mission Viejo, CA 92690

Podiatric Medical License
No. E-1371

Petitioner.

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Case No. 1B-2004-159986

ORDER GRANTING REINSTATEMENT

This matter came on for hearing before the California Board of Podiatric Medicine at its noticed meeting held on January 28, 2005 in Sacramento, California. The honorable Muriel Evens, Administrative Law Judge, presided at the hearing.

Deputy Attorney General John DeCure represented the Office of the Attorney General appearing on behalf of the People of the State of California.

Petitioner Garey Lee Weber personally appeared and was represented by Peter R. Osinoff, Esq.

Oral arguments were made by the attorneys and a personal statement was given by Petitioner Weber. The matter was then submitted.

After consideration of all oral and documentary evidence submitted in this matter, the Board of Podiatric Medicine hereby issues the following decision.

FACTUAL FINDINGS

1. On or about August 7, 1970, the Board of Podiatric Medicine of the Medical Board of California ("Board") issued podiatric medicine license No. E1371 to Garey Lee Weber, D.P.M. ("Petitioner"), to practice podiatry in the State of California.

2. On April 26, 1999, in a Decision After Nonadoption in the Matter of the Fifth Amended Accusation Against Garey L. Weber, D.P.M., Case No. 1B-95- 46977, OAR No. L-9702033, the Board revoked Petitioner's podiatric license, stayed revocation, and placed Petitioner and his license on probation for five (5) years for violating Business and Professions Code Section 2234( d) [incompetence], Section 2234(b) [gross negligence], and Section 2234(c) [repeated negligent acts]. The Decision and Order in Case No. 1B-95-46977, OAR No. L970202331, became effective on May 26, 1999.

3. The general facts and circumstances of Petitioner's unprofessional conduct, as determined by the Board of Podiatric Medicine, were that between 1991 and 1994, Petitioner performed non-fixated base wedge osteotomies of the first metatarsal of four patients, refrained from post-operative casting, and instructed the patients to engaged in weight-bearing activity after the surgery, resulting in negative outcomes for the patients.

4. Under the disciplinary order of Case No. lB-95-46977, OAR No. L97020233, Petitioner's podiatric license was placed on probation.

5. At or about this time, Petitioner retained attorney Matthew Rifat to provide advice and consultation about the terms and conditions of his probation and to represent him before the Board. As a matter of public record, Mr. Rifat was the attorney for a number of plaintiffs who filed over twenty (20) lawsuits against the Board. Ultimately, all of these lawsuits were either dismissed, found to be without merit or withdrawn.

6. Under the Board's order of probation, Petitioner was required to comply with the following terms and conditions.

(a) Within sixty (60) days of the effective date of the decision, enroll in the P ACE Program and undergo assessment and clinical training.

b) Appear in person for an initial probation intake interview with the Board's medical consultant.

c) Submit quarterly reports.

d) Submit an approved practice monitoring plan within thirty (30) days of the effective date of the Board's order.

e) Pay the administrative costs of probation monitoring within thirty (30) days of receipt of an invoice.

7. Petitioner violated these terms and conditions by failing to:

a) Appear for his intake interview as originally scheduled.

b) Obtain an approved practice monitoring plan from the Board until four months after the start of his probation.

c) Begin the PACE program until approximately fourteen (14) months of his probation had elapsed.

d) Permit the probation monitor to have access to his medical records as required by the probation monitoring program.

e) Pay the probation monitoring costs.

8. Because of these violations, the Board initiated an administrative action to revoke Petitioner's license to practice podiatric medicine in June 2000. Following an administrative hearing, the Board issued a decision after nonadoption revoking Petitioner's license which became effective on October 19, 2001.

9. On August 4, 2004, Petitioner filed his petition seeking reinstatement of his license to practice podiatric medicine.

10. Petitioner has expressed some remorse over his previous legal battles with the Board. His petition states that "he has now been much chastened, and comes humbly before the Board with new counsel."

11. Petitioner, in part, blames the problems which arose concerning his prior probation on the advice he received from Mr. Rifat. Yet at the same time, Petitioner indicated he understood the terms and conditions of probation which the Board had imposed.

12. Even though Petitioner is currently not licensed, he has continued to participate in seminars and continuing education events, review podiatric and medical journals and has made one scientific presentation.

13. Petitioner testified that if he were reinstated, he would no longer perform non-fixated base wedge osteotomies. It was this procedure which led to the Board's first disciplinary action against him in 1998.

CONCLUSIONS OF LAW

14. In determining whether to grant a petition for reinstatement, the Board is to consider the following pertinent criteria:

a) The nature and severity of the act or crime under consideration.

b) The time that has elapsed since commission of the act or crime in question.

c) Any evidence of rehabilitation submitted by the Petitioner. (See Cal. Code Regs., Title 16, Sections 1360.2; 1399.659.)

15. Petitioner has the burden of proving both his rehabilitation and his fitness to practice medicine. "It is elementary that a person seeking restoration of a revoked license has no greater rights than a person seeking an original license." (Housman v. Bd. of Medical Examiners, 84 Cal. App. 2d 308, 312 (1948). It is only reasonable, however, "that a person seeking reinstatement should be required to present stronger proof of' his rehabilitation. (Id. at 315.) He must show by clear and convincing evidence that efforts made toward his rehabilitation and fitness to practice have been successful. (Hippard v. State Bar, 49 Cal. 3d 1084 (1989).) Petitioner's burden requires that he show that he is no longer deserving of the adverse character judgment associated with the discipline imposed against his certificate. (Tardiff v. State Bar, 27 Cal. 3d 395 (1980).) Such proof must be sufficient to overcome the Board's former adverse determination relating to his professional competency. (Housman v. Bd. of Medical Examiners, 84 Cal. App. 2d at 315-16.)

16. In this respect, Petitioner cannot attack the factual basis of his prior disciplinary hearing. That is an impermissible collateral attack of a prior administrative adjudication. (Miller v. Bd. of Med. Quality Assurance, 193 Cal. App. 3d 1371, 1377 (1987).)

17. To some extent, Petitioner did mount a mild collateral attack on the Board's prior adjudication by relying in part on findings made in the administrative law judge's proposed decision. That decision, however, was not adopted by the Board and can have no legal significance as far as the merits of the underlying case are concerned.

18. The Board is more troubled by Petitioner's current explanation that his past problems were in part caused by reliance on the advice and counsel of Matthew Rifat, his former attorney. The Board's prior decision aptly summarizes why this is an invalid reason for non-compliance with the law.

Respondent's [Mr. Weber] counsel [Mr. Rifat] was the impetus and cause for the difficult and contentious communications and relationships with the probation monitor and practice monitor. The Board finds that responsibility for compliance with the terms and conditions of probation rests solely with Respondent. Respondent cannot escape . . . his responsibilities by stating he was merely following the advice of his attorney. Because Respondent's attorney was representing Respondent, the Board finds that Respondent necessarily concurred in the difficult and contentious communications and relationships with the probation monitor and practice monitor. (Board's Decision After Nonadoption, p. 51.)

19. Given the above, the Board's primary concern with Petitioner is not his level of competency, but whether he is fully prepared to cooperate with the Board ifhis license is reinstated. Accordingly, the Board finds that reinstatement accompanied by probationary conditions are in order.

ORDER

WHEREFORE, THE FOLLOWING ORDER is hereby made:

The Petition for Reinstatement filed by Garey Lee Weber is HEREBY GRANTED. Petitioner's License, No. E-1371 shall be REINSTATED and Petitioner shall be placed on probation for a period of five (5) years upon or subject to the following terms and conditions:

Petitioner shall conform to the Preferred Practice Guidelines established by the American College of Foot and Ankle Surgeons.
Petitioner is prohibited from practicing except under the following conditions: within sixty (60) days of the effective date of this decision, the Board shall provide Petitioner with a list of consultants/expert reviewers. Within fifteen (15) days of receipt of this list, Petitioner shall designate one of the podiatric medical consultants/expert reviewers on this list as the monitor and inform the Board of this designation. If Petitioner fails to designate a monitor within this fifteen (15) day time period, the Board shall appoint one of the individuals from the list who shall be accepted by the Petitioner. Simultaneously, Petitioner shall submit to the Board or its designee, and receive its prior approval, a plan of practice in which Petitioner's activities shall be monitored by the designated monitor for a period of three (3) years. The monitor shall provide periodic reports to the Board. The board or its designee shall determine the frequency and practice areas to be monitored for the duration of the three (3) year monitoring period. The Board or its designee may at its sole discretion also require prior approval by the monitor of any medical or surgical procedures engaged in by the Petitioner. The Petitioner shall pay all costs for such monitoring and shall otherwise comply with all requirements of his contract with the monitor, a copy of which is contained in Appendix A.

If through no fault of Petitioner, the monitor terminates or is no longer available, Petitioner shall have thirty (30) days from the date of termination to submit to the Board or its designee, and receive its prior approval, a plan of practice in which Petitioner's activities shall be monitored by another individual selected from the list under the same terms and conditions as the previous monitor. If Petitioner fails to designate a new monitor within thirty (30) days of the date of termination of the prior monitor, the Board or its designee shall appoint one of the. individuals from the list who shall be accepted by the Petitioner.
Petitioner shall pay the administrative costs incurred by the Board associated with probation monitoring for each of the three (3) years. Such costs shall be payable to the Board at the end of each fiscal year. Petitioner will be provided with an invoice at the close of each fiscal year, which must be paid within thirty (30) days of receipt. The final invoice will be provided upon termination of the three (3) years and is also due and payable within thirty (30) days of receipt. Failure to pay costs shall be considered a violation of probation.
Petitioner shall obey all federal, state, and local laws, and all rules governing the practice of podiatric medicine in California.
Petitioner shall submit quarterly declarations, under penalty of perjury, on forms, provided by the Board, stating whether there has been compliance with all the conditions of probation.
Notwithstanding any provision for tolling of requirements of probation during the cessation of practice, Petitioner shall continue to submit quarterly declarations under penalty of perjury.
Petitioner shall comply with the Board's probation surveillance program.
In the event Petitioner fails to satisfactorily complete any provision of the order of probation, which results in the cessation of practice, all other provisions of probation other than the submission of quarterly reports shall be held in abeyance until respondent is permitted to resume the practice of podiatry. All provisions of probation shall recommence on the effective date of resumption of practice. Periods of cessation of practice will not apply to the reduction of the probationary period.
In the event Petitioner should leave California to reside or to practice outside the state, Petitioner must notify the Board in writing of the dates of departure and return. Periods of residency or practice outside California will not apply to the reduction .of this probationary period.
Upon successful completion of probation, Petitioner's certificate will be fully restored.
If Petitioner violates any of the above-referenced terms and conditions of his probation, the Board, after givirig Petitioner notice and the opportunity to be heard, may revoke his probation and his license to practice podiatric medicine subject to notice and an opportunity to be heard. If an action is filed against Petitioner to revoke Petitioner's probation and his license, the Board shall have continuing jurisdiction and the period of probation shall be extended until the matter is final. No petitjon for modification of penalty shall be considered while there is an accusation or petition to revoke probation or other penalty pending against Petitioner.

This Decision shall become effective on April 4, 2005

IT IS SO ORDERED this 4th day of March, 2005.

BOARD OF PODIATRIC MEDICINE

By______________________________
Raymond K. Cheng, A.I.AJ ·
President

This page was posted on July 6, 2006.