Jameson V Cote Complaint

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3 COMPLAINT

CONRAD E. YUNKER, P.C.
PO Box !0! Salem OR 973080!0!
(303) 37!0044 (voice) (866) 6823034 (fax)
Conrad E. Yunker OSB 873740
PO Box !0!
Salem OR 973080!0!
(303) 37!0044 (voice)
(866) 6823034 (fax)
conrad@ceypc.com
Of Auorneys for plainu Kim Jameson, DC

In the Circuit Court for the State of Oregon
For the County of Marion
Kim Jameson, DC,
Plaintiff,
v.
Daniel Cote, DC, president of the
Oregon Board of Chiropractic Examiners;
Oregon Board of Chiropractic
Examiners, a state agency, and Ellen
F. Rosenblum, Attorney General,
Defendants.

Case no. ____________

COMPLAINT

Declaratory Relief; Judicial
Review (Order Other Than in
A Contested Case)

Filing fee: $240 (ORS 21.135(2))

Not Subject to mandatory
Arbitration

General Allegations 1
For her claims against defendants, plaintiff Kim Jameson, DC, alleges: 2
1 3
Dr. Jameson is a resident of Clackamas County. She has been licensed to 4
practice chiropractic in Oregon since 2008, and has practiced successfully at her clinic 5

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(303) 37!0044 (voice) (866) 6823034 (fax)
in Clackamas. From 1996 to 2008, before coming to Oregon, Dr. Jameson practiced 1
chiropractic in California with distinction, and was appointed by the governor of 2
California to be a Qualified Medical Examiner in that state. 3
2 4
Defendant Daniel Cote, DC, is the president of the Oregon Board of 5
Chiropractic Examiners. Defendant Oregon Board of Chiropractic Examiners is the 6
health professional regulatory board that regulates the practice of chiropractic in 7
Oregon pursuant to ORS 684.010684.990. Defendant Ellen F. Rosenblum is a 8
member of the Oregon State Bar; is the elected attorney general of Oregon and the 9
states chief law enforcement officer, and is counsel for defendant Oregon Board of 10
Chiropractic Examiners. 11
3 12
For more than two years Dr. Jameson has battled against false and unjustified 13
charges of professional misconduct made by defendant Oregon Board of Chiropractic 14
Examiners. In April 2013three months agoDr. Jameson was cleared of all 15
disputed charges by an administrative law judge. In a proposed order that followed a 16
12-day contested case hearing, the ALJ found that the boards case against Dr. 17
Jameson was based on perjury by its principal witnesswho was a former employee 18
Dr. Jameson had fired for theft and other misconductand the ALJ altogether 19
rejected the lying witnesss testimony. The ALJ also found that the boards 20


(303) 37!0044 (voice) (866) 6823034 (fax)
investigator, Thomas Rozinski, alternately threatened the witness and falsely promised 1
the witness absolute immunity from criminal charges and civil penalties in order to 2
obtain the testimony he wanted, even though Rozinski had no authority to offer or to 3
grant such immunity. 4
4 5
At least until the board leveled its charges against her, Dr. Jameson enjoyed an 6
excellent professional reputation and respect among her patients and the community 7
generally. She is a gifted practitioner, and many of her patients have achieved results 8
not obtained with other care providers. Insurance companies recognized Dr. 9
Jamesons services and paid for treatment she provided their insureds; her practice 10
was thriving, and she enjoyed the privilege of being a chiropractor in Oregon. 11
5 12
After the board publicized its charges against Dr. Jameson, however, her 13
practice began to suffer. Some patients stayed away, even some who did not know of 14
the charges until Rozinski sought them out and informed them. Insurance carriers, as 15
is policy toward accused practitioners, refused payment for her services. Her revenues 16
diminished. Dr. Jameson was emotionally distraught by the charges; sleeplessness and 17
stress increased to an unhealthy level, and Dr. Jameson developed Type-II diabetes as 18
a result. She has incurred substantial loss of income and legal expense to defend 19
against the false charges. 20


(303) 37!0044 (voice) (866) 6823034 (fax)
6 1
Seeking to clear her nameand although the order is embarrassing to the board 2
and its staffDr. Jameson asked the board to make public the ALJs order. She 3
requested the board post the order on its internet site, just as the board had posted its 4
charges against her in January 2012. But by letter dated May 31, 2013, the board 5
refused to do so, claiming the order is confidential and must be withheld from the 6
public. 7
7 8
Also by that letter dated May 31, 2013, the board informed Jameson that it had 9
removed the charges from its website. This representation was materially false, 10
because the board had not done so. Rather, the false representation of material fact 11
continues to the date of this filing because those disproved charges remain on the 12
boards website, unaccompanied by any clarification, correction, or information that 13
the charges were rejected after a judge took evidence and ruled against the board. 14
8 15
Dr. Jameson now turns to this court, seeking the courts help in clearing her 16
name. Specifically, she asks the court to vindicate her reputational interests under the 17
Oregon Constitution and the First and Fourteenth amendments to the United States 18
Constitution by entry of an order affirming that the board may make public the ALJs 19


(303) 37!0044 (voice) (866) 6823034 (fax)
order, and that it should do so in equal prominence to the false charges it leveled 1
against her. 2
9 3
Dr. Jameson also seeks declaratory relief in the form of an order holding that 4
the ALJs order is not confidential; that the board is not required to withhold the order 5
from the public and, further, that Dr. Jameson herself may freely publicize and make 6
use of the order without violating Oregon law or professional standards. 7
10 8
Jameson has good reason to publicize the order and her exoneration. Free use 9
will allow her to attempt to clear her name. It will allow her to regain expectation of 10
payment by insurers. It will allow her to prove to skeptical patients and others that she 11
was wrongfully accused by the board. As the ALJ wrote: 12
This case began as a single call to the Board by an individual misled by 13
a dishonest employee of Appellant [Dr. Jameson]. Unfortunately for 14
Appellant, that complaint began an investigation that coalesced into a 15
perfect storm of misinformation, misunderstanding, overreaching, and 16
outright perjury all aimed at convincing the Board that Appellant was 17
guilty of serious professional and ethical violations. 18
11 19
Free use of the ALJs order will allow Dr. Jameson to attempt to clear her name 20
by showing the ALJ rejected each of the scurrilous, false charges the board had leveled 21
against her: 22


(303) 37!0044 (voice) (866) 6823034 (fax)
(a) Excessive billing and unjustified charges to patients: The ALJ found 1
it was the boards principal witness (the witness who lied, a billing/ 2
reception clerk Dr. Jameson had fired for theft) who falsified billings in 3
an attempt to boost the clerk-witnesss own compensation. The Board 4
presented no independent evidence, unsoiled by the taint of [the 5
witnesss] manipulation and perjury, to support these allegations, the 6
ALJ wrote. 7
(b) Falsifying patient examination notes. The ALJ found instead that 8
the two notes the board claimed were missing and later falsified were 9
simply misfiled, probably by the billing/reception clerk who liedthe 10
dishonest employee the ALJ mentioned. 11
(c) Falsifying patient records to subvert the boards investigation: The 12
ALJ found the boards only witnessthe same clerk who liedwas 13
wholly without merit or credibility. 14
(d) Treatment of patients without informed consent: At hearing the 15
board narrowed the charge to relate to only one patient, who was the 16
fianc of the billing/reception clerk who lied. The ALJ noted the board 17
failed to call the clerks fianc to testify, but instead relied on the lying 18
clerks untrustworthy testimony. 19
(e) Permitting patients to perform exercise without supervision. The ALJ 20
found the board offered no evidence to prove that claim, and Dr. 21
Jameson was credible in denying it. 22
(f) Attempting to bribe and intimidate the clerk who lied. The ALJ 23
rejected the charge because the boards only witness on this issue was 24
the lying clerk. 25
(g) Attempting to impair the witnesss credibility by firing her and 26
reporting her theft to law enforcement. The Boards allegations are 27
illogical and implausible, particularly in light of the [clerks] credibility 28
problems in this proceeding, the ALJ found. 29
(h) Failing to cooperate with the boards investigation because Dr. 30
Jameson failed to provide records for a patient that Rozinski improperly 31


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identified in his request for records. Rozinski's assertion that Dr. Jameson 1
should have been able to surmise which file he wanted when he provided 2
her the incorrect patient name is without merit, the ALJ concluded. 3
(i) General failure to cooperate with Rozinskis investigation. The ALJ 4
rejected out of hand this wild allegation: 5
Mr. Rozinski testified about a number of instances that he believed 6
contributed to the conclusion that Dr. Jameson failed to cooperate with 7
the Board. On cross-examination, Mr. Rozinski admitted that none of 8
the alleged incidents or acts was, in and of themselves, violative of a 9
particular statue, administrative rule, or Board regulation requiring a 10
licensee to fully cooperate with a Board investigation. Instead, Mr. 11
Rozinski testified that each was a contributing factor or element in a 12
pattern of non-cooperation by Dr. Jameson that violated Mr. Rozinskis 13
construct of the spirit of cooperation. * * * Mr. Rozinski testified that, 14
while Appellants exercise of her right to consult counsel was not a 15
violation of statute or rule, he perceived it as less tha[n] the full and 16
zealous cooperation the Board likes to see. Mr. Rozinski went on to 17
testify that a better response would have been for Appellant to say, Let 18
me know how I can help. Mr. Rozinski testified that, because Appellant 19
failed to respond accordingly, he believed her conduct violated the spirit 20
of cooperation. Much of Mr. Rozinskis testimony regarding 21
Appellants failure to cooperate continued in similar fashion. The Board 22
failed to show how a series of alleged incidents that, taken in isolation, 23
do not constitute a violation of statute or rule could, in the aggregate, 24
constitute failure to cooperate with the Boards investigation. 25
(j) Inappropriate contact with a patient. The ALJ rejected the 26
testimony of a patientanother former employee and friend of the clerk 27
who liedwho claimed Dr. Jameson had pinched her buttock months 28
earlier. The ALJ discussed how the patient concocted the allegation 29
despite publicly praising Dr. Jamesons work, and continuing her 30
treatment with Dr. Jameson. [The patients] assertions strain credulity 31
to the breaking point, the ALJ wrote. The Board failed to prove * * * 32
Dr. Jameson touched [the patient] in an inappropriate or unprofessional 33


(303) 37!0044 (voice) (866) 6823034 (fax)
manner or otherwise caused physical or emotional injury to this or any 1
other patient. 2
(k) Abandoning patients when leaving previous employment. To the 3
contrary, the ALJ found, Dr. Jameson notified her patients, many of 4
whom followed her. The Board failed to show Dr. Jameson actually 5
terminated the doctor-patient relationship with any specific patient(s), 6
the ALJ wrote. 7
(l) Inappropriately prescribing orthotics. The Board failed to present 8
any evidence to support this allegation, the ALJ wrote. 9
(m) Failure to provide patient records upon written request. The Board 10
presented only hearsay testimony of Mr. Rozinski to support this 11
allegation, the ALJ wrote. The Board failed to provide evidence that 12
any patient requested copies of their medical records, in writing. 13
(n) Requesting patients to exaggerate symptoms. On this charge, 14
Rozinskis antagonism toward Dr. Jameson was apparent, as the ALJ 15
described: 16
[T]he Board provided hearsay testimony [from] Mr. Rozinski that was 17
vague at best. Mr. Rozinski testified that he was highly skeptical of Dr. 18
Jamesons chart notes because the patient comments reflected an 19
inordinately high number of positive comments. In rebuttal, Dr. Jameson 20
provided credible testimony indicating that each patient completed the 21
portion of the chart note in question in the lobby, before meeting with 22
her or any other chiropractor. In addition, Appellant presented multiple 23
witnesses who testified Dr. Jameson had never requested that they 24
respond inaccurately in their chart notes and attributed the over- 25
whelming positive comments to Dr. Jamesons unparalleled skill as a 26
chiropractor. 27
/ / / 28
/ / / 29


(303) 37!0044 (voice) (866) 6823034 (fax)
12 1
Assurance of her right to freely speak is important to Dr. Jameson, and is 2
reasonable to seek in this case for these reasons: 3
(a) Dr. Jameson wishes to report the perjury by the boards witness 4
to law enforcement in Clackamas and Marion Counties. The same 5
authorities should also hear of Rozinskis misconduct, which appears to 6
implicate the crimes of obstruction of justice, witness tampering, and 7
perjury. 8
(b) On behalf of the board, Senior Assistant Attorney General Lori 9
Lindley submitted written, legal argument to the ALJ relying on the 10
false testimony, and did so even after the ALJ found the boards witness 11
had committed perjury. Dr. Jameson seeks to ask the Oregon State Bar 12
to review Lindleys actions in advocating on the basis of the perjurious 13
testimony, and she wishes to authorize her attorney to cooperate and 14
assist with the bars inquiry. 15
(c) In furtherance of civil claims for money damages against the 16
board; the boards principal witness; Rozinski; Rosenblum, and various 17
board and Oregon Department of Justice employees including Lindley, 18
Dr. Jameson seeks to comply with the requirement of ORS 30.275(5)(a) 19
to provide formal notice of claim to the office of the Director of the 20
Oregon Department of Administrative Services. If she does not provide 21
this notice, her claims will be barred from court. 22
13 23
Contrary to the boards claim that the ALJs order is confidential and must be 24
withheld from the public, Oregon law concerning investigations and discipline of 25
health professionals, principally ORS chapters 676 and 684 (and associated adminis- 26
trative regulations), do not prohibit the release of the ALJs order. Neither do those 27

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(303) 37!0044 (voice) (866) 6823034 (fax)
authorities explicitly restrict Dr. Jamesons own use of the ALJs order and related 1
information (except in one instance not applicable here). But those authorities are less 2
than clear as to what Jameson may permissibly say or do with the ALJs order and 3
related information, at least without fear that she might be accused of misconduct by a 4
vindictive board or investigator. 5
14 6
Because of the boards demonstrated carelessness in bringing charges against 7
her, and given Rozinskis hostility and antagonism against Dr. Jamesonand because 8
Rozinski is willing to lie and misrepresent to persuade a witness to commit perjuryit 9
is reasonable for Dr. Jameson to fear that the board might attempt to punish her for 10
disclosing the information contained in the ALJs order and related information. 11
Specifically, it is reasonable for Dr. Jameson to fear the board may retaliate against her 12
by leveling additional, specious and unjustified charges of professional misconduct 13
that she again will be forced to defend against. 14
15 15
This in turn, causes Dr. Jameson to be chilled in the exercise of her right to free 16
expression under the Oregon and United States constitutions, including the right to 17
criticize the government and government officials and to petition the government for 18
redress of grievances as described in paragraph 12 above. 19

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16 1
A true copy of the ALJs order accompanies this complaint, filed under seal. 2
3
First Claim for Relief: Declaratory Judgment 4
17 5
This court has the authority to declare rights, status, and other legal relations of 6
parties under ORS 28.010. As described in paragraphs 116 above, Dr. Jameson is 7
entitled pursuant to ORS 28.020 to a declaration of her rights and removal of 8
uncertainty as against the board, the attorney general, and the state of Oregon, as 9
follows: 10
(a) That the ALJs order is not confidential and may be released to 11
the public; 12
(b) That the ALJs order may be unsealed in this case and made 13
public; 14
(c) That Dr. Jameson is not prohibited from disclosing the ALJs 15
order or its contents to law enforcement, the Oregon State Bar, the office 16
of the Director of the Oregon Department of Administrative Services, 17
and the public generally (provided any particular requirements for 18
patient confidentiality are maintained, as this court may order). 19
20
/ / / 21
/ / / 22


(303) 37!0044 (voice) (866) 6823034 (fax)
Second Claim for Relief: Judicial Review in 1
Other than Contested Case. 2
18 3
Plaintiff pleads in the alternative to relief requested in her first claim for relief: 4
19 5
Plaintiff repleads paragaphs 116 above. 6
20 7
The boards refusal by letter dated May 31, 2013, to make public the ALJs 8
order was a final order and a final determination affecting plaintiff because it 9
perpetuates the false, disproven allegations and harms Dr. Jamesons reputational 10
interests; interferes with her right to reveal that she has been cleared of the false 11
charges, and to attempt to clear her name, repair her reputation, and restore her 12
professional relationships (including insurer recognition) in the most effective way 13
possible, i.e., furnishing documentary proof of her exoneration. As well, it chills 14
plaintiffs rights of free expression, particularly in light of the boards history of 15
carelessness in bringing charges against her. 16
21 17
The board has erroneously interpreted ORS 676.175 and related authorities to 18
assert the ALJs order is confidential and thereby refuse to make public the ALJs 19
order. 20


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22 1
Because the board erroneously interpreted one or more provisions of law, the 2
Court should: 3
A. Set aside or modify the boards final order pursuant to ORS 4
183.484(5)(a)(A). 5
B. Or, in the alternative, remand the order to the board for further action 6
under a correct interpretation of the law pursuant to ORS 183.484(5)(a)(B). 7
23 8
The court should remand the order pursuant to ORS 183.484(5)(b) because the 9
board failed to exercise proper discretion as to one or more of the following: 10
A. The board acted to secrete and hide from public view the ALJs order, 11
which was outside the range of its delegated discretion and was inconsistent with a 12
board rule or an officially stated board position; or 13
B. The board, in the totality of its actions both lawful and unlawful, has 14
acted to chill Dr. Jamesons rights of free expression contrary to the Oregon 15
Constitution and the First and Fourteenth amendments to the United States 16
Constitution. 17
24 18
The board has acted without a reasonable basis in law or fact. Dr. Jameson has 19
incurred attorney fees and costs. 20


(303) 37!0044 (voice) (866) 6823034 (fax)
25 1
Pursuant to ORS 183.497, Dr. Jameson is entitled to receive and be awarded her 2
reasonable attorney fees and costs. 3
Request for Relief 4
Dr. Jameson requests the following relief: 5
A. Entry of judgment including an order affirming that the board may make 6
public the ALJs order, and that it should do so in equal prominence to the false 7
charges it leveled against her; 8
B. Entry of judgment including an order that the order in this case may be 9
unsealed; that Dr. Jameson herself may freely publicize and make use of the order 10
without violating Oregon law or professional standards; that Dr. Jameson is not 11
prohibited from disclosing the ALJs order or its contents to law enforcement, the 12
Oregon State Bar, the office of the Director of the Oregon Department of 13
Administrative Services, and the public generally (provided any particular 14
requirements for patient confidentiality are maintained, as this court may order). 15
C. Entry of a judgment including an order requiring the board to pay 16
Dr. Jamesons reasonable attorney fees and costs under ORS 183.497, and 17
/ / / 18
/ / / 19
20


(303) 37!0044 (voice) (866) 6823034 (fax)
D. Entry of a judgment including an order that includes special findings of 1
fact based on the evidence in the record and conclusions of law indicating clearly all 2
aspects in which the agencys order is erroneous. 3
Conrad E. Yunker, P.C. 4
By: Conrad E. Yunker OSB 873740 5
Attorney for Plaintiff Kim Jameson, DC 6
7
Dated this 17th day of July, 2013. 8

Jameson V Cote Complaint

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