BEFORE THE IDAHO STATE BOARD OF MEDICINE

BEFORE THE IDAHO STATE BOARD OF MEDICINE In the Matter of: ) ) ANN DE JONG, M.D. ) Case No. License No. M-0, ) BOM-- ) Respondent. ) ) HEARING BEFORE KENNETH L. MALLEA, HEARING OFFICER PLACE: Idaho State Board of Medicine Westgate Office Plaza Westgate Drive, Suite 0 Boise, Idaho DATE: July 0,

1 1 1 1 For the Board: For the Respondent: A P P E A R A N C E S URANGA & URANGA by JEAN R. URANGA, Esq. North Fifth Street Boise, Idaho 0 HAWLEY TROXELL by JOSEPH D. McCOLLUM, JR. Main Street, Suite 00 Boise, Idaho 0 P. O. BOX, BOISE, ID 01

1 1 1 1 I N D E X WITNESS EXAMINATION BY PAGE Angeline Devitt Ms. Uranga (Direct) (Petitioner-via telephone) Mr. McCollum (Cross) Ms. Uranga (Redirect) 1 Dennis Kirk Perry Ms. Uranga (Direct) (Petitioner) Mr. McCollum (Cross) Ms. Uranga (Redirect) 1 Mr. McCollum (Recross) Mary Leonard Ms. Uranga (Direct) (Petitioner) Mr. McCollum (Cross) Ms. Uranga (Redirect) Mr. McCollum (Recross) Cynthia Michalik Ms. Uranga (Direct) 0 (Petitioner) Mr. McCollum (Cross) Ms. Uranga (Redirect) Mr. McCollum (Recross) Ms. Uranga (Redirect) 1 Ann De Jong Mr. McCollum (Direct) (Respondent-via telephone) Ms. Uranga (Cross) 1 Mr. McCollum (Redirect) Ann De Jong Mr. McCollum (Direct) (Respondent-via telephone) Mary Leonard Ms. Uranga (Direct) (Petitioner-rebuttal) Mr. McCollum (Cross) Ann De Jong Mr. McCollum (Direct) 0 (Respondent-rebuttal) (via telephone) P. O. BOX, BOISE, ID 01

1 1 1 1 NUMBER For the Petitioner: E X H I B I T S PAGE 1 Premarked Admitted Premarked Admitted Premarked Admitted Premarked Admitted Premarked Admitted Premarked Admitted Premarked Admitted Premarked Admitted Premarked Admitted Premarked Admitted Premarked Admitted For the Respondent: A B C Premarked Admitted Premarked Admitted Premarked Admitted P. O. BOX, BOISE, ID 01

1 1 1 1 D E Premarked Admitted 1 Premarked Admitted 0 P. O. BOX, BOISE, ID 01

BOISE, IDAHO, TUESDAY, JULY 0,, :00 A.M. 1 1 1 1 HEARING OFFICER: Okay, good morning. We're on the record this morning in a proceeding before the Idaho State Board of Medicine in a case captioned In the matter of Ann De Jong, MD, License No. M-0, and Case No. BOM--, and this is the time and place set for hearing in this matter pursuant to notice of hearing issued on May 1,. Prior to coming on the record yesterday -- this is Ken Mallea; I'm the Hearing Officer in this case -- I did have a telephone conference with Counsel on a motion that was filed by Respondent, Dr. De Jong, who is represented in this case by Joe McCollum of the Hawley firm, and the Board staff is represented by Jean Uranga. There was a motion to vacate and reset the hearing that was not supported by an affidavit; it was a motion filed by Mr. McCollum. And following oral argument on that motion, the motion was denied. So we are here this morning and we are going to proceed with this hearing. Just prior to coming on the record, Mr. McCollum advised us that his client does wish to participate telephonically. She is not present today. But the plan, as I understand it, will be that we first take the telephonic evidence of one of the Board staff physician witnesses, and at the conclusion of that testimony, then Dr. De Jong will join us P. O. BOX, BOISE, ID 01 1

1 1 1 1 by way of telephonic conference call. Other than those preliminary remarks, is there anything we need to talk about, Counsel? MS. URANGA: I don't have anything. HEARING OFFICER: Thank you. MR. McCOLLUM: No, not at this time. HEARING OFFICER: Very well then. Are we ready to take up with the proof? MS. URANGA: Yes. HEARING OFFICER: What about our exhibits? I do have a small number. MS. URANGA: This first witness won't need exhibits. And I'll be dealing with them as we go through our other witnesses. HEARING OFFICER: Very well. Thank you. (Telephone sounds.) TELEPHONIC RECORDING VOICE ONE: This is Angie. Leave a message. TELEPHONIC RECORDING VOICE TWO: At the tone, please record your message. When you have finished recording, you may hang up or press "1" for more options. MS. MICHALIK: Hi, Dr. Devitt. This is the Board calling. MS. URANGA: We'll try again. (Telephone sounds.) P. O. BOX, BOISE, ID 01

MS. URANGA: Just talked to her five minutes ago. MS. DEVITT: Hello, this is Dr. Devitt. MS. URANGA: Dr. Devitt, this is Jean Uranga and we're here at the hearing, and the Hearing Officer I guess will have to have you sworn in before your testimony. HEARING OFFICER: Good morning, Dr. Devitt. This is Ken Mallea; I'm the hearing officer. We're going to take your evidence today by phone. Are you ready? MS. DEVITT: Yes, that's fine. HEARING OFFICER: Okay. We're going to have the court reporter swear you in, and then we'll go ahead and take your testimony and get you back to your office as soon as we can. MS. DEVITT: Thank you. 1 1 1 1 ANGELINE DEVITT, produced as a telephonic witness at the instance of the Petitioner, being first duly sworn, was examined and testified as follows: DIRECT EXAMINATION BY MS. URANGA: Q. Dr. Devitt, this is Jean Uranga, and also present in the conference room are a couple of Board staff members, and P. O. BOX, BOISE, ID 01

1 1 1 1 Joe McCollum, representing Dr. De Jong. Can you please state your full name? A. My name is Angeline St. Clair Devitt. Q. And how do you spell your last name? A. D, as in dog, E-V, as in Victor, I-T, as in Tom, T, as in Tom. Q. And what is your business address? A. 1 West Shoreline Drive, Suite 0, Boise, 0. Q. And are you a licensed physician? A. Yes, I am. Q. How long have you been licensed in Idaho? A. Since 1. Q. And have you practiced since that time? A. I was initially in residency from ' to ', and then I practiced since then as an attending physician. Q. Okay. And what is your specialty? A. I'm a family physician. Q. Are you Board certified? A. Yes, I am. Q. And have you practiced in the Boise/Meridian area since 1? A. Yes, I have. Q. Did you review records from -- that the Board of Medicine provided from (sic) you related to Dr. De Jong and her P. O. BOX, BOISE, ID 01

1 1 1 1 treatment of a patient by the name of Lonna Short (sic)? A. Yes, I did. Q. As part of your practice, have you become familiar with the community standard of care in treating respiratory infections? Q. What is the community standard of care in the Boise/Meridian area with respect to issuing prescriptions for patients with respiratory tract infections? A. The -- sorry, I have a lawn mower close to me. I'm going to see if I can get rid of that. The standard of care for respiratory infections is usually supportive therapy for the symptoms. Q. And what would supportive therapy consist of? A. Usually, treatment of a sore throat with Tylenol or ibuprofen, maybe nasal saline or decongestants, depending on the symptoms. Q. So that would be the primary standard of care for the initial treatment of respiratory tract infections? Q. Is it standard of care in the Boise/Meridian area to conduct a physical exam or personal evaluation of a patient prior to prescribing any drugs -- legend drugs for a patient complaining of a respiratory tract infection? A. Yes, it is -- -- P. O. BOX, BOISE, ID 01

Q. And are -- A. -- standard of care to do an examination. Q. Okay. I'm sorry. I kind of talked over you. It is -- 1 1 1 1 A. It is standard of care to do an examination if someone was wanting something beyond over-the-counter medications for treatment of their symptoms. Q. Okay. And are you familiar with the antibiotic known as azithromycin? A. Yes, I am. Q. Would you please briefly explain the difference between a viral infection and a bacterial infection? A. A virus is a different type of organism than a bacteria. Also, there are fungal infections and parasitic infections. So it's just a different form of an organism. Viruses are by far the most common reason for colds or upper respiratory symptoms. Q. And how do you go about determining the difference between a bacterial infection and a viral infection? A. It can be difficult. You know, generally for a cold, we don't -- or, for upper respiratory symptoms, we don't do a culture or that sort of thing, so it really depends on their -- kind of their presentation and what their examination is and, you know, both a history and a physical would help you determine that difference. P. O. BOX, BOISE, ID 01

1 1 1 1 Q. Okay. And then can you also do certain cultures to clarify if it is a bacterial infection rather than a viral infection? A. You can. Like just in the office setting we would, for instance, depending on someone's symptoms, you could check for influenza, which is a form of a virus. You can do a strep test, which is -- strep is a form of a bacteria that can cause a sore throat, generally, with a fever. So, you know, on examination a bacterial infection is more likely to present with a fever, although influenza is a virus that could have a fever with it. So there can be symptoms that could go either way. Q. Okay. And that's why you would do a physical examination: To narrow down whether it might be viral or bacterial? A. Exactly. Q. And do you -- is it standard of care to prescribe an antibiotic for a viral respiratory tract infection? A. Not unless it was to be influenza or something like that that you tested for. Q. Okay. Is it current standard of practice in the Boise/Meridian area to limit the prescription of antibiotics when possible? A. Yes, it is. Q. And why is that the standard of care? P. O. BOX, BOISE, ID 01

1 1 1 1 A. Because antibiotics can have adverse effects. They can have -- they could have an allergic reaction; they can have drug interactions with other medications the patient might be taking; they can be the cause of developing resistance of organisms in the community; and they can -- you know, sometimes people will have secondary like a fungal infection or something called Clostridium difficile, that can be another type of infection. Q. And based upon your review of Dr. De Jong's records that were provided to you by the Board, in your opinion did Dr. De Jong violate the community standard of care by prescribing an antibiotic without an adequate physical examination? MR. McCOLLUM: Objection: Foundation. Maybe Counsel could find out what records they were and she did review. HEARING OFFICER: Okay, let me go ahead and sustain the objection as to a foundation. MS. URANGA: Okay. HEARING OFFICER: All we did hear was that she had reviewed records. MS. URANGA: Right. Q. BY MS. URANGA: Okay, Dr. Devitt, did you get a copy of Dr. De Jong's response to the Board to the complaint? A. Yes, I did. P. O. BOX, BOISE, ID 01

1 1 1 1 Q. And did you also review the online questionnaire that Dr. De Jong provided to the Board of Medicine? A. The questionnaire that was completed by the patient -- Q. Yes. A. -- online? Yes, I did see that. Q. Right. And then did you review Dr. De Jong's prescription of an antibiotic, azithromycin, for patient Lonna Hamilton? Q. Based upon your review of those records, in your opinion did Dr. De Jong violate the community standard of care by prescribing the antibiotic without a physical examination of this patient? A. Prescribing an antibiotic without an examination, particularly for the symptoms that the patient had, is not the standard of care in our community. Q. Okay. And I did want to clarify for the record: I referred to the patient "Lonna Short," and it is actually "Lonna Hamilton," so I want to clarify that. HEARING OFFICER: I wondered about that. THE WITNESS: I was wondering about that myself. MS. URANGA: Yeah, thank you. Cynthia said, "Okay, that's not right." P. O. BOX, BOISE, ID 01

I have no further questions. HEARING OFFICER: Doctor, now Mr. McCollum has a chance to cross-examine you, so stay with us. THE WITNESS: Okay. CROSS-EXAMINATION 1 1 1 1 BY MR. McCOLLUM: Q. Okay, thank you, Doctor. I appreciate your time. I represent Dr. De Jong. And just with respect to the records review, is it my understanding that you were not able to review the records of the particular patient, Ms. Hamilton, that were obtained by the Board? A. I'm sorry, you said I was not able? Q. Yeah. Let me make that -- Did you review the records that were kept locally by the primary care practitioner for the patient, Ms. Hamilton, who saw the primary care practitioner I'll represent both before and after the telephone conference call? A. I did not. I saw reference to the fact and I don't know whether it was in the -- I don't believe it was in the initial online information. It may have been in some of the other information. But at some point, it appeared that she had seen her primary physician; that's Dr. Ballance, who I'm P. O. BOX, BOISE, ID 01

1 1 1 1 familiar with in our community. And I just saw that he was her primary physician and she had seen him at some time around the time of that phone conversation. Q. So the only reference to the primary care physician locally would be that which you found in the records of Dr. De Jong in her response, and the written materials that were generated from the telephone conversation? A. Correct, yes. I've not seen any of Dr. Ballance's records. Q. Okay. So with respect to the issue of standard of care to limit antibiotic use when possible to which you testified, Doctor, that wasn't an opinion given with reference to any history that you had either before the patient had the consult by phone with Dr. De Jong or after the patient had that consult by phone with respect to what the patient presented to her primary care practitioner in Boise? A. I did not have access to any of those records. Q. And so would it not be true that's really a hypothetical statement to the extent that physicians generally are -- have an antithesis to prescribing excessive antibiotics? A. I'm sorry, can you restate that? Q. Yeah. Let me rephrase that. You have opined that the standard of care requires a physician to be concerned about using excessive antibiotics. P. O. BOX, BOISE, ID 01

1 1 1 1 A. Correct. Q. Okay. But in this particular case, would it also be true that you are saying that statement generally but not with reference to the particular patient, because you hadn't seen her prior subsequent records? Is that correct? A. Well, no, that is not correct. My opinion about this case was based I believe on the same information that the -- that Dr. De Jong had access to. So in my opinion, the information that she -- the very same information I would -- I believe the standard of care is different than the conclusion that she came to. Q. Are you licensed in any state except Idaho? A. I am not. Q. Okay. Have you -- you obviously trained in another state, because Idaho doesn't have a medical school. Right? A. Correct. I was -- I did my medical school in -- at Loma Linda University in Southern California. Q. Okay. And were you at one time licensed in California? A. I was not, because medical school -- you get your medical license after you complete medical school. Q. And that was after you had a family practice residency and that was in Idaho? A. I did my family residency here in Idaho. P. O. BOX, BOISE, ID 01

1 1 1 1 Q. Okay. Do you recall whether you have ever received from the Idaho Board of Medicine any announcement or publication that expressed a rule of the Board or policy of the Board addressing the issue of a prescription preceding -- excuse me, a physical examination preceding a prescription? A. I cannot recall that I ever received such a -- such information from the Board of Medicine. Q. And so in talking about the standard of care as you know it, you are expressing a standard based upon your experience in Meridian, Idaho? A. Meridian and Boise is where I practiced, yes. Q. Okay. Now, you have been involved, have you not, in on-call situations? A. Yes, I have. Q. And as a member -- are you a member of a multiphysician clinic now? Q. Is that affiliated with a hospital? A. We are associated with a medical group. Q. Okay. A. Saint Alphonsus Medical Group. Q. Okay. So the medical group is affiliated with a hospital? A. Yes, with the Trinity Health system. Q. And do you work part-time now or full-time? P. O. BOX, BOISE, ID 01

1 1 1 1 A. I work three days a week. Q. Does that work include time that you might spend in reviewing records and testifying for the Board of Medicine? A. I have only testified for the Board of Medicine in regard to being a member of the Idaho State Board of Medicine, which does require doing such testimony, review of records for prelitigation cases, and that sort of thing. That's been my only involvement. Q. What is the frequency of your involvement in that type of forensic practice? A. It is less than once a year. I'd say I've done it once or twice before in my 1 years -- HEARING OFFICER: We didn't quite hear your last answer, Doctor. THE WITNESS: Oh. I said I believe that I've been involved in this two other times within my 1 years of practice. HEARING OFFICER: Okay, thank you. THE WITNESS: Is that the last of the question? Q. BY MR. McCOLLUM: No. Let me ask you another thought. You're familiar with azithromycin? A. Yes, I am. Q. That's a common and well-known antibiotic for utilization with upper respiratory and early stage pneumonia, is it not? P. O. BOX, BOISE, ID 01

1 1 1 1 A. For respiratory -- for atypical respiratory symptoms, it is an appropriate antibiotic. Q. So you're not testifying in this case that this particular medication would be an inappropriate one for the patient? A. From the information that I have, I believe that it is inappropriate. Q. Okay. That is you said it's inappropriate simply because she did not do a personal physical examination? A. That would be the primary reason that it would be inappropriate to prescribe, yes. But I would say the secondary reason is that generally for an upper respiratory infection, azithromycin is not appropriate. Q. And, instead, you indicated supportive therapy would be the appropriate approach. Right? A. For an upper respiratory infection. Q. At least initially. Isn't that true? Q. And if the symptoms of the patient get worse and that type of therapy is not being effective, is it then appropriate to go ahead with an antibiotic? A. I would say that varies depending on the history and the physical findings of the patient. Words can mean a lot of different things. P. O. BOX, BOISE, ID 01

1 1 1 1 Q. Okay. Treating the patient symptomatically is the same thing, is it not, as supportive therapy? A. Yes, it's -- supportive therapy tends to be over-the-counter medications. You know, other supportive therapy generally might be something that if I saw a patient and they had, for instance, if someone had a virus and they had a reactive airway disease, maybe they had a history of asthma or they're a smoker and sometimes viruses will elicit some inflammatory response in the airway, they might need an inhaler, for instance. That would be, of course, prescriptions that you would only know based on an examination. Q. And even then you don't do a culture most of the time, do you? A. No. Q. So the standard of care is somewhat flexible, is it not, as to what a doctor may feel is appropriate for the patient depending on the duration and acuity of the symptoms? A. Of course. Obviously, it depends on the patient, it depends on their risk factors, it depends on their -- you know, their -- obviously their history and their examination. And I'm sure even with that, you would get a variance of opinion from different physicians. For instance, you might get a difference of an opinion on the type of inhaler or a type of antibiotic or a type of supportive therapy. I think there, of course, could be differences. P. O. BOX, BOISE, ID 01 1

1 1 1 1 Q. And you have prescribed medication, have you not, without examining the patient if you're in a on-call situation, haven't you, Doctor? MS. URANGA: Your Honor, I'm going to object. That exceeds the scope of the testimony. Her testimony is related to this case and this specific set of circumstances. HEARING OFFICER: Overruled. THE WITNESS: Could you restate the question? MR. McCOLLUM: Would you read it back? THE WITNESS: I think you asked if I've prescribed medication without seeing a patient. Q. BY MR. McCOLLUM: Yeah. And I'm not referring to a narcotic. I'm referring to an antibiotic. A. I believe that -- I know that I have prescribed antibiotics in certain situations without seeing the patients, but I still would say that that is different from these circumstances and I'd be happy to elaborate on that. Q. Very good. MR. McCOLLUM: No further questions. REDIRECT EXAMINATION BY MS. URANGA: Q. And I just have one follow-up, Dr. Devitt: When you do a physical exam of a patient like P. O. BOX, BOISE, ID 01 1

1 1 1 1 Lonna Hamilton coming in with respiratory complaints, do you listen to her chest to assist you in her diagnosis and treatment? A. You know, an appropriate examination on this patient would include a blood pressure because she did report a history of hypertension, a temperature, a respiratory rate, a pulse rate. It would also include examining in her ears, in her, you know, nasal mucosa, in her throat, checking for lymph nodes, listening to her heart, and, of course, listening to her lung. Q. Okay, thank you. I have nothing further. MR. McCOLLUM: No further questions. MS. URANGA: May this witness be excused? HEARING OFFICER: Yes. Thank you, Doctor. MS. URANGA: Thank you, Doctor. MR. McCOLLUM: Thank you. THE WITNESS: All right, thank you. MS. URANGA: Uh-huh. (The witness was excused.) MS. URANGA: Okay. Do you want to check and see if the pharmacist is here? He was supposed to be on his way. And then do you have a number -- do you want to have your client call in to the Board and we can patch her in? MR. McCOLLUM: Yeah, let me call her. I don't know how the best way to handle this is. I can just give you P. O. BOX, BOISE, ID 01 1

1 1 1 1 the number or I can call. HEARING OFFICER: Shall we talk about this -- We'll go off the record. (Discussion off the record.) HEARING OFFICER: Okay, we're back on the record following a brief recess. And before we take up with the testimony from our next witness, I want to discuss with Counsel the exhibits which have been marked Exhibits 1 through, and inquire about a possible stipulation to admit those into the record. Ms. Uranga, has counsel for the doctor seen these? MS. URANGA: I had them delivered to his office last Friday. MR. McCOLLUM: Yeah. HEARING OFFICER: Any objections to one through nine? MS. MARY LEONARD: Cynthia, Dr. De Jong is on three. MS. MICHALIK: Okay. Is she going to go first or Kirk's going to go? MS. URANGA: She's just participating. She needs to hear what's going on. MS. MICHALIK: Oh, okay. All right. Gotcha. MS. URANGA: So just patch her in on a -- P. O. BOX, BOISE, ID 01 1

1 1 1 1 (Telephone sounds.) HEARING OFFICER: You can -- MS. MICHALIK: Dr. De Jong? MR. McCOLLUM: Doctor, are you on the line? MS. DE JONG: Hello. MR. McCOLLUM: Okay. We're going to leave you on this in this situation. MS. DE JONG: Okay. MR. McCOLLUM: If you cannot hear, would you please let us know? MS. DE JONG: Yes. MR. McCOLLUM: You are sitting in the middle of a table through the telephone. Ms. Uranga is directly on one side, I'm across the table on the other side, the Hearing Officer is at the end of the table. You have approximately three feet between each of us and the telephone. MS. DE JONG: Okay. MR. McCOLLUM: The court reporter is on the corner. She is five feet away, but she has good ears. And then the witness is on the other corner, and he is about four or five feet away. So if you cannot hear any of us, we'll try to speak up. MS. DE JONG: Okay. MR. McCOLLUM: And we'll just move along. Okay? P. O. BOX, BOISE, ID 01

1 1 1 1 MS. DE JONG: Okay. Good morning, everybody. HEARING OFFICER: Good morning. MS. URANGA: Hi. HEARING OFFICER: So, Mr. McCollum, we're back to you, and I'm trying to beat you up on these exhibits and being admitted. MR. McCOLLUM: No, this was the issue I had: I have no concern about the authenticity of the exhibit. I was concerned a little bit and I looked at the patient records, Exhibit, in that the records went beyond the time that we're addressing in this thing, although there may be a reason for it, and I wanted to confirm the completeness or incompleteness of those records because it was somewhat confusing to me. But other than questions about, you know, what they are and maybe the patient can resolve some of that, we -- I have no objection to the records as they stand. HEARING OFFICER: Then would it be fair for me to admit them into this record? MR. McCOLLUM: Yeah. HEARING OFFICER: Okay. I understand there may be some questions about the scope or the completeness of Exhibit, but based on the stipulation of Counsel, Exhibits 1 through are admitted. Thank you, sir. (Petitioner Exhibit Nos. 1 through, P. O. BOX, BOISE, ID 01

having been premarked for identification, were admitted into evidence.) HEARING OFFICER: Okay, we're ready to take up with the proof. MS. URANGA: And I'll call my next witness, is Kirk Perry. Have you sworn in. MR. PERRY: All righty. DENNIS KIRK PERRY, produced as a witness at the instance of the Petitioner, being first duly sworn, was examined and testified as follows: DIRECT EXAMINATION 1 1 1 1 BY MS. URANGA: Q. Okay, Mr. Perry, would you please state your full name? A. My full name is Dennis Kirk Perry. Q. And what is your business address? A. It's Chinden Boulevard in Garden City. Zip,. Q. And where do you work? A. I work at Fred Meyer in the pharmacy. Q. Okay. And are you a licensed Idaho pharmacist? P. O. BOX, BOISE, ID 01

1 1 1 1 A. Yes, I am. Q. How long have you been an Idaho pharmacist? A. A little over eight years. Q. Okay. And I did send you a couple of exhibits, so I'd like to refer you first to what's been marked as Exhibit and ask if you -- and that's the prescription. Do you recognize that document? A. Yes, I do. Q. And is that a document that you prepared or received and retained as part of your practice as a pharmacist at Fred Meyer? A. That is correct. Q. Okay. And looking at Exhibit, when did -- how did Fred Meyer receive this prescription? A. We received it by way of fax. (Telephone sounds.) HEARING OFFICER: Doctor, are you still with us? MS. DE JONG: Yes. HEARING OFFICER: Okay. We heard three beeps and thought we may have lost you. MS. DE JONG: No. Thank you for checking. HEARING OFFICER: Thank you. Q. BY MS. URANGA: Okay. So, Mr. Perry, this came in by fax. And is that fax number indicated at the top, or is that your fax number? P. O. BOX, BOISE, ID 01

1 1 1 1 A. The number at the top, I don't recognize that. Q. Okay. So -- but it was received by fax? A. Oh, wait. So, Uranga and Uranga. Is that -- Q. Oh, okay, that's -- you're right, I did fax it. A. So maybe if I had that possibly. Q. We probably don't even need that. MR. McCOLLUM: I'll stipulate that she did not receive it from your office. MS. URANGA: Okay. Q. BY MS. URANGA: While you were working at the Fred Meyer pharmacy on Glenwood, did you receive this prescription? A. Yes, I did. Q. And your recollection, it was received by fax? A. Correct. Q. Did you then look at the prescription? A. I did. It's common practice to check them. Q. Okay. Did you check this and have concerns about the prescription? A. There was a couple -- there was a red flag that I was wondering about, yes. Q. Okay. What was that? A. The phone number and fax number were not local, and so I just wanted to verify the prescription. Q. Exhibit -- or,, excuse me, has various P. O. BOX, BOISE, ID 01

1 1 1 1 handwriting. Is this your handwriting? A. Exhibit, concerning Exhibit? Q. Yes. A. Yes, that is my handwriting. Q. Okay. So the prescription came in. It looked suspicious to you. What did you then do? A. I called the phone number on the top of the prescription. Would you like me to continue? Q. Sure. A. So, I called that number, and it seemed like it was a call center and that's just my opinion, but they didn't identify themselves as a doctor's office. I asked if I could talk to a nurse or a medical assistant, and to the best of my recollection they said there wasn't one available. And I kind of pushed it a little bit and they finally -- I believe they gave me the doctor's number is what happened. Q. Dr. De Jong. Q. Had you ever, in your recollection, seen a prescription from Dr. De Jong before? A. I have -- to the best of my recollection, I have not. Q. Okay. So they gave you Dr. De Jong's phone number. What did you then do? P. O. BOX, BOISE, ID 01

1 1 1 1 A. I called to -- just to ask about the prescription, to "verify" it is the term I would use. Q. And you personally talked to Dr. De Jong? A. I did, briefly. Q. Okay. Can you describe the nature of that conversation? A. It -- again, this is my opinion. It felt like she may have been on a cell phone in a car just because of that noise you hear. To the best of my recollection, it took just a second for her to kind of figure out, you know, that this was business. I then asked if she -- so my problem was -- is I was trying to get a phone number for the Eagle address so I could actually call the doctor there and nobody could give that to me, so I asked her for a phone number for the Eagle address. I asked her if she had a business in Eagle, and she said, "Yes." I asked her if she knew the address of that, and to the best of my recollection, she did not. And so then I just wanted to verify the prescription and she, to the best of my recollection, said that, yes, the prescription was sent in with her name. Q. It was sent with her name? P. O. BOX, BOISE, ID 01

1 1 1 1 Q. And did you talk to her about the validity of the prescription or your concern about the validity? A. I honestly do not remember that, per se, but I do remember talking to somebody who called me and referred to themselves as a colleague about the validity. Q. Okay. So after your conversation -- Was Dr. Jong (sic) argumentative with you? A. I wouldn't say argumentative, but I would say maybe a little trying to skirt the issue. Q. Okay. And your recollection is she told you she had an office in Eagle? Q. And following that conversation, did you get a call from another physician by the name of Douglas Smith? A. I did. Q. Okay. Explain what happened with that. A. So, he called and identified hisself as a colleague, and asked -- you know, he said, "We've had problems with Fred Meyer filling our prescriptions. What's the matter with it?" And I said, "Well, I'm trying to figure out whether this is a valid prescription in the state of Idaho or not." And he was very -- I felt like he was trying to force me, threaten me. He basically told me that I was on thin P. O. BOX, BOISE, ID 01

ice. 1 1 1 1 I asked him for time. I said, "Can I have a half an hour, an hour? I have a call out for the Board of Pharmacy. I'm trying to find out if this is a valid prescription." At that point it wasn't that I wasn't going to fill it; I was just trying to find out if it was a valid prescription. Let's see. I do remember at one point, because I talked to him for quite a while, and I don't know exactly the length of time but it was awhile, I was having customers, patients, line up at my counter, and I asked him, I said, "Hey, can I just have a second to talk to a couple of the patients and keep the work flow moving?" And at that point, he said -- and this is where he was very argumentative -- he said, "Pharmacists don't have patients; doctors have patients." And just a really rude and threatening demeanor. Q. Okay. Between the time you had talked to Dr. De Jong and when Dr. Smith called you, had you put a call in to the Board of Pharmacy? A. I had, because I was trying to find out whether I should fill it or not. Q. Okay. And then following, did you get a call back from the Board of Pharmacy? A. Eventually, I did. It was after the call with Dr. Smith. P. O. BOX, BOISE, ID 01

1 1 1 1 Q. Okay. Did Dr. Smith explain to you that he worked for Consult A Doc? A. I'm sure -- you know, I don't remember because it's been over a year, but I'm sure he identified hisself as Dr. Smith. He -- I do specifically remember that he said that he was a colleague of Dr. De Jong, and he possibly said that, I don't know for sure. Q. Okay. And did he explain to you that it had been -- the prescription had been issued through an online questionnaire and telephone conversation with the patient? A. He did not cover that, no. Q. Okay. But you were able to determine that, in fact, the address on here was not a legitimate medical office? A. Well, I don't know that for sure. I just know that the Eagle address is there, and I know that Dr. De Jong told me that she had an office in Eagle somewhere. Q. Okay. And the phone numbers listed were not local phone numbers? A. No. That was the thing that originally flagged me, or got me going on this. Q. Okay. And referring you to the bottom of Exhibit -- I should back up. You then talked to the Board of Pharmacy? A. I did talk to the Board of Pharmacy; P. O. BOX, BOISE, ID 01

1 1 1 1 specifically, Fred. Q. Okay. Fred Collings? A. I believe that is his last name. Q. What did Mr. Collings tell you about the validity of this prescription? A. We talked about it a little bit in length and he cited some Idaho Code, and he basically said that if it was him, he would not fill it. Q. Okay. And then you chose not to fill it? A. And I chose at that time not to fill it. Q. Okay. And did you notify anybody that you weren't going to fill it? A. You know, I don't remember that. I don't remember. Q. Okay. So referring you to the left-hand corner of Exhibit, can you explain what that sticker represents? A. This label? Q. Yes. A. So, this would be a sticker that we would put on our prescriptions that we fill in order to retrieve them in a future date if we needed to. The reason why I put the sticker on it is because at this point, there had been enough talk surrounding the prescription I felt like I might need to retrieve it in the future, so I typed it up, put a sticker on it, and filed it with our prescriptions, but it was not P. O. BOX, BOISE, ID 01 0

1 1 1 1 filled. Q. Okay. It wasn't filled. You put that on there solely to be able to retrieve it for future reference? A. Exactly. Exactly. Q. Okay. And then I'll refer you to Exhibit, the second page of Exhibit. Did you send an e-mail to a Berkeley Fraser regarding your transaction and this prescription? A. Yes, I did. Q. Okay. And this is the e-mail you sent to Mr. Fraser? A. It is. Q. And who is Mr. Fraser? A. At that time, he was my regional supervisor. Q. Okay. And I guess before we talk about the details of the prescription, are you familiar with Lonna Hamilton? A. I don't know her personally, but I know at the time she was a patient of the pharmacy. She would fill prescriptions there. Q. Okay. So she had a lot of other medications that she would fill through Fred Meyer? A. She had others, yes. Q. Okay. After you -- and I assume your conversation -- I shouldn't assume this. Did your conversation with Dr. De Jong and P. O. BOX, BOISE, ID 01 1

1 1 1 1 Dr. Smith occur on the same day you received this prescription: February,? A. It did, yes. Q. Okay. Later -- and at that point, was Lonna Hamilton in the pharmacy when you were having those conversations? A. No. She came in later that evening. Q. And she came in to fill other prescriptions? A. I think they were filled, but to pick up other prescriptions, yes. Q. Okay. So she came in to pick them up? A. Uh-huh. Q. And at that point later in the day on February,, did you have a personal conversation with Lonna Hamilton about this prescription? A. I did. Q. Can you tell me what you two discussed and what was said? A. So, Fred Ott, who is a pharmacist that works for Fred Meyer, was working with her at the counter with these -- giving her her other prescriptions. At that point, I realized who it was. And there was a conversation that occurred where Fred was talking to her about the prescription and wanting to know if we needed to pursue it from another doctor to make sure that she was taken care of. P. O. BOX, BOISE, ID 01

1 1 1 1 So, I overheard that and I stepped up and I said something to the effect that -- Actually, can I refer to my notes real quick? Q. Sure, absolutely. A. So I stepped up and I said, "How do you know Dr. De Jong?" And she said, "Doctor who?" And I said, "Dr. De Jong. She's the one that gave you this prescription." And she said, "Oh" -- Q. We're talking about the antibiotic prescription? A. Yes, it's an antibiotic. I didn't know if -- it's a prescription for an antibiotic. Q. Okay. A. And I said, "How do you know Dr. De Jong?" She said, "Doctor who?" And I said, "Dr. De Jong. She's the one that gave you the antibiotic prescription." And she said, "Oh, I talked to somebody on the phone and they just sent in a prescription for me." And she did say that she was surprised about that. That was my interaction with her. Q. And did she tell you -- did Lonna Hamilton tell you that Dr. De Jong or Consult A Doc had then sent the P. O. BOX, BOISE, ID 01

1 1 1 1 prescription to another pharmacy, where it had been filled? A. Well, she did. She said that -- basically, she said that she was told that her insurance wouldn't pay for it there, so she had to pick it up at Walgreens, I think, a neighboring pharmacy, yes. Q. Okay. All right. So getting back then to Exhibit, is that an e-mail that you sent to your supervisor regarding the incident? A. It is. Q. And as part of your investigation, did you also check the Consult A Doc Web site? A. I did. I used all of the information that had happened during the day to find the Web link, yes. Q. And your e-mail indicates it takes a quote from that Web site about how the telemedicine consultations work? A. I did notice a particular paragraph that stood out to me that I was giving that information to my regional, yes. Q. Okay. And you also have a note, I guess, about the Dr. Smith that you felt was unprofessional with you on the telephone? A. Correct. MS. URANGA: I don't have any further questions. HEARING OFFICER: All right. Cross-examination for this witness? P. O. BOX, BOISE, ID 01

MR. McCOLLUM: Yes, thank you. CROSS-EXAMINATION 1 1 1 1 BY MR. McCOLLUM: Q. Mr. Perry, I'm a little confused about the sequence here. A. Okay. Q. But let me just get a few basic things and we can pick some paper. On Exhibit, that first page of Exhibit in the lower right -- excuse me, lower left-hand column, my understanding from your testimony is that you prepared the -- I guess that's the type of prescription that goes on the bottle? A. It's called a back label, and something very similar to this or something that mirrors that would go on the bottle, you're correct. Q. Why does it then have Franci Kimball on there under the RPH? A. She -- so, whoever is at the pharmacist station, that's who -- whoever logs into that station, that's the pharmacist that would be working at that station, so she was working at that station when I typed it. Q. Okay. And you typed it on February the th? A. I believe so, yes. P. O. BOX, BOISE, ID 01

1 1 1 1 Q. Okay. So that would have been a couple of days after you knew about the prescription? Q. Where does it say on here that this is a prescription that is not being filled? A. It -- on here, it doesn't. Q. Okay. So that most of us in looking at that and seeing that would think the prescription is filled, and that is simply not the case? A. I can say it wasn't filled. There are a lot of prescriptions that are put on profile or whatever, so it doesn't -- just because that's on there doesn't necessarily mean it was filled. Q. So you can't look at this and say whether it was or was not filled? A. That's correct. Q. Now, in relationship to that, did you say in your conversation with the patient that evening when she came in -- And that was the evening of the same day that you had the conversations with Dr. De Jong? A. To the best of my recollection, yes. Q. And at that time, did you tell the patient that you were not going to fill the prescription? A. You know, I don't remember all the details, but that was -- I think she was aware of that. I think earlier on P. O. BOX, BOISE, ID 01

1 1 1 1 that we had called her and told her that we couldn't fill it. Q. Okay. Do you think that may have precipitated her coming in that evening? A. I don't know what precipitated her to come in that evening. I do know that she had other prescriptions that she was picking up. Q. Okay. Now, I didn't understand in direct and I apologize: Was there some discussion with her about this particular prescription for the antibiotic being filled elsewhere? A. Well, she -- I don't remember whether I asked her specifically or she volunteered that information, but I was -- at that point I was just trying to gather information, and so I did ask her how she knew the doctor. I was just trying to collect information. If she would have told me, Hey, I saw her down in Eagle, then that might have changed my decision or whatever. But, yeah, I just -- there -- Sorry, what was the original question? HEARING OFFICER: It was: Was it filled somewhere else? THE WITNESS: It was filled somewhere else at that point, yes. Q. BY MR. McCOLLUM: Do you know it was filled somewhere else? A. I am going off of what she said, which is she did P. O. BOX, BOISE, ID 01

1 1 1 1 tell me that it was filled at Walgreens. She said she picked it up at Walgreens I think is her exact words. Q. What would she have taken up to Walgreens if you had the fax? You didn't give her a copy of the fax? A. I can only speculate, but I am assuming another prescription was sent in to Walgreens, because it was not transferred from our pharmacy to Walgreens. Q. Did you ask if she had any subsequent conversations with Dr. De Jong? A. I do not know that. Q. Okay. Now, I take it you only had a single conversation with Dr. De Jong? A. I did, and it was very short, yes. Q. Okay. And in that conversation -- prior to that conversation you had apparently tried to make a call, and the call was to the number on the upper left-hand corner of Exhibit that had a prefix? A. That is correct. Q. Do you remember what you got when you called that number? A. What I remember is it sounded like a call center. They did not identify themselves as a doctor's office. Q. Okay. Now, when you called that number, you didn't get a doctor's office in North Carolina? A. I have no idea where they were located. P. O. BOX, BOISE, ID 01

1 1 1 1 Q. Okay. And is it your testimony that in your conversation, your brief conversation with Dr. De Jong in which you thought she was maybe in the car, answering a cell phone, but not in an office it didn't sound like? A. It sounded like there was that background street noise. Q. Is your testimony that she said she had an office in Eagle, Idaho? A. Yes, that's my recollection, is that she said -- I was trying to figure out whether she did have an office, whether she could potentially be in Idaho, and I specifically asked if she had a location or a building, and I believe I might have even specifically asked this address after -- after she avoided answering a bunch of questions about where her office was located. I asked her if she could tell me her address. But she did say that she had a location in Eagle, Idaho. Q. Didn't she tell you she was located outside of Idaho? A. I don't recollect that based upon -- so, one -- can I step back and explain one little thing here? I went into my system, which has a database of all the different doctors and where they're located. I could not find her anywhere in Idaho, and so that was another red flag. So I don't know if she was in Idaho or not. That was P. O. BOX, BOISE, ID 01

1 1 1 1 part of my information finding. Q. Didn't she tell you she did not live in Idaho? A. She may have, but I don't recollect that. Q. Okay. You don't recall talking about her living either in North Dakota or Wisconsin? A. I don't -- I don't think she did. I suspected that she might have lived in North Dakota, because that's where most of her phone numbers and addresses in our database were coming from. Q. So she was in your database? A. She was in our database, but I had to find her. Q. And by "your database," I guess I'm referring to the Fred Meyer database? A. Correct: Kroger. Q. So that Fred Meyer database would be nationwide? A. It's -- we're under Kroger, so wherever Kroger is located, then, yes. Q. Okay. So Kroger is the parent company of Fred Meyer? A. Correct. Q. And Fred Meyer is a West Coast behemoth from Portland? A. Yeah, Idaho, Portland area. Q. And you got subsumed into Kroger and so now even bigger? P. O. BOX, BOISE, ID 01 0

1 1 1 1 A. Correct. Q. And -- okay. So you did locate her name in that location? A. Well, I found her name. I actually printed it off. Would you like to see it? Is that -- Q. Yeah. A. This is what -- should I show -- HEARING OFFICER: Is this an exhibit? MS. URANGA: It's not. THE WITNESS: It's not. HEARING OFFICER: Mr. McCollum knows what to do. THE WITNESS: Okay. Q. BY MR. McCOLLUM: Well, tell me what you had printed out and whether it was from Idaho. A. So, I had her listed in areas in I believe Minnesota, Wisconsin, North Dakota, and California. Q. Okay. And that was from the store resources? I had to actually download her profile to get that information. Q. And did you do that before or after you made the call to her? A. I actually did it before because I was trying to figure out where she was located. Q. Okay. Okay. Did you ask her anything about the genesis of the fax prescription that's on the top part of P. O. BOX, BOISE, ID 01 1

1 1 1 1 page? A. I did not. I know that it came from rxnt.com, but other than that, I don't know any other information than that. It did come through our fax machine. Q. Okay. And so in the upper right-hand corner of Exhibit, the North Dakota doc phone number you wrote down, that's in your handwriting? A. That's my handwriting, yes. Q. And you wrote down the number that you eventually reached her at? A. Correct. Q. And this is the number you called? A. I believe so. Q. And you got this phone number from your own records, from the company records? A. No. I actually had to call -- I think I called this number twice, and the first time I called -- Q. By "this number," you're referring to which number? A. The number. And the first time they said that there were no -- I was asking if I could talk to the doctor's nurse or medical assistant, and they said there was nobody there that could help me. So after doing a little bit more research, I P. O. BOX, BOISE, ID 01

1 1 1 1 called back and said, "Well, can I get a contact phone number for the doctor, because I need to verify the prescription." Q. Is there anyplace on this fax prescription that shows a number from which it was faxed? A. I believe it came through rxnt.com, and then it has a ()-0 number here, but I don't know. I'm assuming. Q. Okay. And the bottom right-hand corner, is that in your handwriting? A. It is. Q. Dr. Douglas Smith? A. It is. Q. And that's indicated that same day, Dr. Smith called you? A. Dr. Smith called me. I think I was trying to find his phone number just for information sake, but Dr. Smith called me. Q. So did you ask someone to "have him call me"? A. No, he called me by his own free will and choice. Q. How do you think he knew to call you? A. I can assume, but I'm assuming there was probably a conversation between Dr. De Jong and him. Q. Okay. But you don't know that? A. I don't know that, but it's an assumption. Q. Okay. And did you ever, besides the conversation P. O. BOX, BOISE, ID 01

1 1 1 1 that date, talk to Dr. De Jong? A. Sorry, can you repeat that? Q. Did you talk to Dr. De Jong any other time besides briefly that one day? A. That's -- no, that was the only time. Q. Did you discuss with her during that conversation the circumstances under which she wrote the prescription, that is, after following a telephone consult with the patient? A. I don't think we discussed any of that information. I was just trying to figure out where her physical location was and if it was local. My concern was -- is this -- when I called this phone number, it didn't sound like a doctor's office, it sounded like a call center. And so I was trying to figure out why I got this prescription and where it came from. Q. Isn't it true that she denied she even knew about that number, knew what the number was? A. This number? Q. Yeah. A. I don't remember that. Q. Or that she denied she had an office in Eagle, Idaho, that particular office in Eagle, Idaho? A. I don't remember that. What I do remember is that I asked her if she had a physical location in Idaho, and she said, "Yes." P. O. BOX, BOISE, ID 01

1 1 1 1 Q. With respect to Exhibit, is that something you had seen before? A. I have not seen it up to this point, no. Q. Okay, good. And Exhibit though is one with which you have some knowledge? A. Yes, that was an e-mail generated by me to my supervisor, mostly just trying to figure out whether -- at the very end, the closing paragraph says, you know, if this is a valid prescription, it would be nice if we knew. If it isn't, it would be nice if I'd known too, just looking for information, trying to figure out whether I should fill these types of prescriptions in the future or not. Q. And this when you refer, you reference page of Exhibit? A. I believe so. Yes. Q. And just so I understand, is page the first dated of the series of e-mails? A. That was an e-mail generated by me to Berk Fraser, who was my regional supervisor at the time. Q. Okay. And then -- and at that time, had you already placed this subscription (sic) in a not-to-be-filled status? A. No, at that time I think the prescription was just sitting on -- in a box, waiting to figure out what I was doing with it. P. O. BOX, BOISE, ID 01

1 1 1 1 Q. Okay. In the next to the last paragraph, you refer to a doctor who was unprofessional. You're talking about Dr. Smith? A. Specifically, Dr. Smith in that paragraph, yes. Q. And then the last paragraph, you have -- And this is to again your supervisor, regional supervisor? A. Correct. Q. And to your knowledge, is he a pharmacist? A. He is a pharmacist, yes. Q. Okay. Where is he located? A. He actually works for the Board of Pharmacy at this time. Q. Okay. So he was at the Board of Pharmacy? A. At the time, no. Well, he -- he works for -- he was my regional, working and employed by Fred Meyer, but he was working volunteer through the Board of Pharmacy, and that's one of the reasons why I asked him: Because I figured he may have some additional information for me. Q. And let me read parts of that last paragraph and ask you questions. Starts off: If these prescriptions are okay to fill in Idaho, great, no problem, just let me know. By "these prescriptions," you're referring to? A. The times that -- the type that come through rxnt.com. P. O. BOX, BOISE, ID 01