medical board hearing transcript

8/6/2019 Medical Board Hearing Transcript

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0001

1 LICENSE NO. L-3154

2 IN THE MATTER OF ( BEFORE THE DISCIPLINARY

(

3 THE LICENSE OF ( PANEL OF THE

(

4 RICK SZUMLAS, M.D. ( TEXAS MEDICAL BOARD

5

6 TEMPORARY SUSPENSION

7 WITH NOTICE

8 WEDNESDAY, APRIL 20, 2011

9

10 BE IT REMEMBERED that on this the 20th day of April,

11 2011, between 10:00 a.m. and 4:21 p.m., the above-entitled

12 matter came for hearing before the Disciplinary Panel of

13 the Texas Medical Board, 333 Guadalupe, Tower 3, 7th

14 Floor, Austin, Texas, and the following proceedings were

15 reported by Renea Seggern, Certified Shorthand Reporter.

16

17


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19

20

21

22

23

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0002

1 A P P E A R A N C E S

2

3 DISCIPLINARY PANEL MEMBERS:

4 Mr. David Baucom, Chair

Patrick Crocker, D.O.

5 Ms. Paulette Southard (Appeared via telephone)

6 Ms. Nancy Leshikar, Counsel for the Panel

7

8 FOR THE TEXAS MEDICAL BOARD:

9 TEXAS MEDICAL BOARD


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Mr. Christopher Palazola

10 Ms. Claudia Kirk

333 Guadalupe Street

11 Tower 3, Suite 610

Austin, Texas 78701

12 (512) 305-7071

13

FOR THE RESPONDENT:

14

LEICHTER LAW FIRM

15 Mr. Louis Leichter

Mr. Dan Lype

16 1602 East 7th Street

Austin, Texas 78702

17 (512) 495-9995

18

19

20

21

22


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23

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0003

1 W I T N E S S I N D E X

2 Appearances.............................................2

3 WITNESSES FOR THE BOARD:

4 DETECTIVE SERGEANT JAMES MAZY (Via Telephone)

Direct Examination by Mr. Palazola.................19

5 Voir Dire Examination by Mr. Leichter..............33

Continued Direct Examination by Mr. Palazola.......35

6 Cross-Examination by Mr. Leichter..................41

Redirect Examination by Mr. Palazola...............47

7 Recross-Examination by Mr. Leichter................48

Examination by Dr. Crocker.........................49

8 Further Recross-Examination by Mr. Leichter........51

Further Redirect Examination by Mr. Palazola.......52

9

MARK MESSER, D.O. (Via Telephone)


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10 Direct Examination by Ms. Kirk.....................54

Cross-Examination by Mr. Leichter..................61

11 Redirect Examination by Ms. Kirk...................78

Recross-Examination by Mr. Leichter................80

12 Examination by Dr. Crocker............... ..........83

Further Recross-Examination by Mr. Leichter........85

13

KIMBERLY SMITH (Via Telephone)

14 Direct Examination by Mr. Palazola.................89

Cross-Examination by Mr. Leichter..................96

15 Redirect Examination by Mr. Palazola...............99

Recross-Examination by Mr. Leichter...............100

16 Further Redirect Examination by Mr. Palazola......101

17 BRANDI RUSSELL (Via Telephone)

Direct Examination by Mr. Palazola................104

18 Cross-Examination by Mr. Leichter.................114

19 WITNESSES FOR THE RESPONDENT:

20 GEORGE GLASS, M.D.

Direct Examination by Mr. Leichter................124

21 Cross-Examination by Mr. Palazola.................145


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Examination by Dr. Crocker........................155

22 Examination by Mr. Baucom.........................159

Further Examination by Dr. Crocker................160

23 Examination by Ms. Leshikar.......................160

Further Examination by Mr. Baucom.................161

24 Examination by Ms. Southard.......................163

Continued Cross-Examination by Mr. Palazola.......167

25 Redirect Examination by Mr. Leichter..............175

0004

1 GEORGE GLASS, M.D. (Continued)

Further Examination by Ms. Leshikar...............178

2

RICK SZUMLAS, M.D.

3 Direct Examination by Mr. Leichter................181

Cross-Examination by Ms. Kirk.....................196

4 Redirect Examination by Mr. Leichter..............206

Recross-Examination by Ms. Kirk...................211

5 Further Redirect Examination by Mr. Leichter......212

Examination by Mr. Baucom.........................212


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6 Examination by Dr. Crocker........................214

Examination by Ms. Southard.......................216

7

Reporter's Certificate................................240

8

E X H I B I T I N D E X

9 FOR THE BOARD

NO. DESCRIPTION PAGE

10

1 Notice of Hearing 17

11

2 Application for Temporary Suspension or

12 Restriction of License With Notice 17

13 3 Public Physician Verification 17

14 4 Complaint Documents 17

15 5 Correspondence, Complainant (Under Seal) 17

16 6 Correspondence, Board Staff (Under Seal) 17

17 7 Correspondence, Board Staff (Under Seal) 17

18 8 Terrell State Hospital, Medical Records for

Respondent (Under Seal) 17


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19

9 Order Granting Temporary Suspension Without

20 Notice, March 18, 2011 (Under Seal) 17

21 10 Transcript from Temporary Suspension Without

Notice, March 18, 2011 (Under Seal) 17

22

13 Lakes Regional Medical Records (Under Seal) 17

23

14 Color Photos 38

24

25

0005

1 E X H I B I T I N D E X

FOR THE RESPONDENT

2 NO. DESCRIPTION PAGE

3 1 Psychiatric Evaluation of Dr. Szumlas by

Dr. George Glass 144

4

2 Resume for George S. Glass, M.D., P.A. 129


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5

3 Letter of Reference from Dr. Shafiq 124

6

4 Letter of Reference from Dr. Prakash 124

7

5 Letter of Reference from Dr. Thurmond 124

8

6 Letter of Reference from Dr. Petrakian 124

9

7 Letter of Reference from Dr. O'Neal 124

10

8 Continuing Medical Education Certificate 124

11

9 Continuing Medical Education Certificate 124

12

10 Letter from Lynda Sessa 124

13

11 Letter from Helen Gootinag 124

14

12 Certificate from the Institute for Cardiovascular


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15 CC Certification 124

16 13 Certificate from the Society of Cardiovascular

Computed Tomography 124

17

14 Continuing Medical Education Credit Form 124

18

15 Continuing Medical Education Registration 124

19

16 Certificate from the University of Virginia

20 Health System 124

21 17 Continuing Medical Education Certificate from

22 SNM 124

23 18 Certificate from the American College of

Cardiology Foundation 124

24

19 Continuing Medical Education Tracker from January

25 2010 until December 2010 124

0006

1 P R O C E E D I N G S


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2 MR. BAUCOM: I call this meeting of the

3 Disciplinary Panel of the Texas Medical Board to order at

4 10:00 a.m. on the 20th day of April 2011.

5 My name is David Baucom. I've been

6 appointed to be Chair of this Disciplinary Panel. The

7 other Panel members are Patrick Crocker, D.O., and

8 Paulette Southard. Nancy Leshikar, general counsel, will

9 serve as hearings counsel for the Panel in today's

10 proceedings.

11 The hearings counsel will call the roll.

12 MS. LESHIKAR: David Baucom?

13 MR. BAUCOM: Here.

14 MS. LESHIKAR: Dr. Crocker?

15 DR. CROCKER: Here.

16 MS. LESHIKAR: Ms. Southard?

17 MS. SOUTHARD: Present.

18 MS. LESHIKAR: Mr. Chair, all members of the

19 Disciplinary Panel are present.

20 MR. BAUCOM: I call the case of the Matter

21 of the Texas Medical License of Rick Szumlas, M.D. The


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22 Panel is here to consider the Application for the

23 Temporary Suspension With Notice filed with Board staff

24 under the authority of Section 164.059, Texas Occupations

25 Code, and Board Rule, Chapter 187, Subchapter F.

0007

1 I remind this Disciplinary Panel members

2 that each of us have a duty to be fair and impartial in

3 our decision in this matter. Board Rule 187.42(b) sets

4 forth the standards for recusal. If there is any request

5 for recusal, please make that request now.

6 MS. SOUTHARD: No.

7 MR. BAUCOM: The record will reflect there

8 is no request for recusal.

9 I now request that the parties and attorneys

10 in this hearing identify themselves for the record.

11 MR. LEICHTER: Louis Leichter,

12 L-e-i-c-h-t-e-r, first name L-o-u-i-s, for Respondent,

13 Rick Szumlas, M.D.

14 MR. PALAZOLA: Chris Palazola for Board


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9 and four witnesses, and we will need approximately three

10 hours.

11 MR. LEICHTER: We will be calling between

12 two and four witnesses. We also need approximately two to

13 four hours.

14 There is a procedural note that I would like

15 to bring up on the record at some point before we begin

16 the evidentiary matter and when the Panel decides it's

17 appropriate to take it up.

18 MR. BAUCOM: Would this be a good time?

19 MS. LESHIKAR: Yes.

20 MR. LEICHTER: We realize that the Rule

21 requires or allows for the provision the -- the Rule

22 requires or provides for Ms. Southard to appear by

23 telephone. However, because this is a Temporary

24 Suspension Hearing With Notice, it is an evidentiary

25 hearing, we acknowledge Ms. Southard's presence. We would

0009

1 ask that appearances that regard credibility, which is the


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2 appearance of a witness, their demeanor, their gestures,

3 their body language, their credibility largely be deferred

4 to these Panel members with decision and input being made

5 to Ms. Southard because she's not here to judge the

6 demeanor and character and credibility of these witnesses.

7 And this is a very important matter and

8 these witnesses, including Dr. Szumlas, who will testify

9 either called by staff or called by us, is very important

10 and goes to the nature of the facts in issue of this case.

11 We want to preserve that for the record.

12 Thank you.

13 MS. LESHIKAR: Noted.

14 MR. BAUCOM: Do you have any comment on

15 that?

16 MS. LESHIKAR: No.

17 MR. BAUCOM: Each side will be allowed 15

18 minutes to make an opening statement. Board staff has the

19 burden of proof and will be allowed to make the first

20 opening statement. The Respondent may make an opening

21 statement after Board staff's opening statement or may


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22 reserve opening statement until after Board staff rests.

23 Each side will be allowed a maximum of four

24 hours to present their case. This will include direct

25 examination of any witnesses called by the party and

0010

1 cross-examination of any witness called by the other

2 party.

3 Each side will be allowed 15 minutes for a

4 closing argument. Board staff will make the first closing

5 argument and may reserve up to one half of its time for

6 rebuttal.

7 The Board staff attorney may now make an

8 opening statement.

9 MS. KIRK: At this time, the Board staff

10 would request that the Panel invoke the Rule.

11 MS. LESHIKAR: All right. Panel, impose the

12 Rule.

13 MR. LEICHTER: We only have one witness who

14 is here with us who would not appear, which is Dr. Glass.


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15 And because he's an expert, we ask that he be exempted

16 from the Rule because his very testimony goes to the

17 nature of these proceedings. We feel that him listening

18 to the testimony, because he's already interviewed the

19 Respondent in this matter, would be helpful to the Panel

20 in deliberation. Under the rules and case law in Texas,

21 he should be exempted from the Rule.

22 MS. KIRK: He's not a party to these

23 proceedings, and the Rule is really for necessary parties.

24 So we would ask that he be excused.

25 MS. LESHIKAR: Panel, under the Rule,

0011

1 everybody that's going to be a fact witness is excused

2 except for --

3 MS. SOUTHARD: I'm not able to hear what is

4 being said.

5 MS. LESHIKAR: Under the Rule, when you

6 invoke the Rule, what you are asking is that all witnesses

7 that are going to testify in the hearing be excused from

8 the testimony. And so now what Mr. Leichter has argued is


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9 he has an expert witness and as such the expert witness

10 should be excluded from the invocation from the Rule.

11 It is up to you-all to determine if you

12 believe that is appropriate or not. It is my opinion that

13 he should not be allowed in the room. Simply because he's

14 an expert witness does not, in fact, excuse him from the

15 Rule. But it is up to you to make that decision.

16 MR. BAUCOM: I would follow your

17 recommendation, then.

18 MS. SOUTHARD: As do I.

19 MS. LESHIKAR: He will be subject to the

20 Rule as well.

21 MR. LEICHTER: Can someone escort him down

22 to the sixth floor.

23 MR. BAUCOM: Board staff attorney may now

24 offer documentary evidence.

25 MS. LESHIKAR: They haven't made their

0012

1 opening statement yet.


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2 MS. KIRK: Can you excuse Mr. Bernardo as

3 well? He may be a potential witness.

4 MS. LESHIKAR: Mr. Bernardo.

5 MS. KIRK: Thank you. A physician who is a

6 threat to the general health and welfare to the public due

7 to an impairment cannot be allowed to practice with a

8 completely unrestricted license. Allowing an impaired

9 physician to practice in that condition would go against

10 this Board's mission, which is to protect the people and

11 the state of Texas.

12 Approximately six months ago, Dr. Szumlas,

13 the Respondent, who lives alone in an apartment, started

14 to believe that satellites were beaming radioactive waves

15 into his apartment. He also heard voices that conversed

16 and provided running commentary as to what he was doing

17 and what was going on around him. He believes the Food

18 and Drug Administration or the military or other

19 government agencies is doing this to him.

20 You will see and hear evidence today that he

21 made several calls to the police using the 911 emergency


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22 system to report the harassment and satellite activity.

23 His apartment has sophisticated electronic equipment set

24 up; that he slept with reflective equipment to deflect the

25 beams that were supposedly being transmitted to his head;

0013

1 and that he purchased a semiautomatic pistol and had a

2 large knife for protection.

3 We will also present evidence that due to

4 his impaired mental state, Respondent had to be

5 involuntarily committed to a psychiatric hospital. You

6 will hear from his doctor who will testify that Respondent

7 suffers from a psychotic disorder and had to be treated

8 with anti-psychotic medication.

9 You will also see that even at discharge,

10 not too long ago, while on medication, he still had

11 symptoms of psychosis. We will also present evidence that

12 this type of disorder has a high relapse rate and requires

13 compliance with the prescribed medication.

14 Once you hear all our evidence, we think you


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15 will see that Respondent is impaired due to mental illness

16 and that he presents a continuing threat or a real danger

17 to the health of his patients, potential patients or the

18 public in general.

19 We also believe that you will find that

20 based on his state of mind and actions, terminating his

21 suspension today and allowing him to practice freely and

22 treat patients would pose a threat to the public safety

23 and welfare.

24 Thank you.

25 MR. BAUCOM: Does the Respondent prefer to

0014

1 proceed with an opening statement now or reserve the

2 opening statement until after Board staff reserves?

3 MR. LEICHTER: We will reserve.


5 offer documentary evidence.

6 MS. KIRK: At this time, we would like to

7 offer into evidence Exhibits Number 1 through 10. And we

8 would also like to add to Exhibit Number 7, the last part


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9 of the chain of the e-mail that's missing. And we would

10 like to add an Exhibit 13, which is the Lakes Regional

11 medical records that just came in today.

12 MR. BAUCOM: If I understood you, Items 1

13 through 10 and adding the last part of the e-mail on 7

14 that was missing; is that correct?

15 MS. KIRK: Yes.

16 MR. BAUCOM: And then on 13?

17 MS. KIRK: Adding a new 13, which I will

18 give you a copy.

19 MR. LEICHTER: I don't have any of that

20 stuff. I would appreciate paper copies of 1 through 10

21 also if you have them.

22 MS. KIRK: That was on a disk.

23 MR. LEICHTER: I know. We prefer paper

24 copies.

25 MS. KIRK: I will see if Tam can get you

0015

1 some.


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2 MR. PALAZOLA: Are you offering any of these

3 under seal?

4 MS. KIRK: Yes, I am offering Exhibits 5

5 through 10 under seal, and 13 to be admitted under seal as

6 well.

7 MR. BAUCOM: What did you say about 13?

8 MS. KIRK: To be admitted under seal.

9 MR. BAUCOM: Okay.

10 MR. LEICHTER: 13 is the Lakes Regional

11 Medical Center?

12 MS. KIRK: Yes.

13 MR. LEICHTER: We object due to timely

14 notice. We have no objection to the e-mail. What was the

15 other exhibit?

16 MS. KIRK: That was it.

17 MR. BAUCOM: Does the Panel have a response

18 to the tender of Exhibit 13?

19 MR. PALAZOLA: Exhibit 13 was just received.

20 We had to subpoena the records. Respondent instructed

21 Lake Regional Medical Center MHMR not to provide them to


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22 us, is our understanding. So we had to issue a subpoena

23 for those records. That came in after 5:00 yesterday.

24 We just basically had a chance to look at

25 them this morning. These are the Respondent's medical

0016

1 records. We have reason to believe he's asked for his own

2 copy, so he should not have any surprise as a result of

3 these records.

4 Also I didn't hear a specific citation to

5 any section of the Board rules or Administrator Practice

6 Act concerning Mr. Leichter's specific objection, so I'm

7 not sure exactly what the basis of the objection is other

8 than just unfair surprise since these are the Respondent's

9 records.

10 MS. LESHIKAR: Panel, it's up to you. I

11 would suggest that it is somewhat disingenuous for the

12 Respondent to have directed the hospital not to provide

13 the records and require us to subpoena them and then to

14 argue that they did not have adequate notice of receipt of


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15 the records.

16 MR. LEICHTER: Excuse me. There is

17 absolutely no proof of that. We don't know where that

18 came from. That is not factually accurate, and I'd like

19 to hear if you do call the witness for them to make

20 evidence -- provide evidence to that point. That is

21 absolutely untrue. There is no documented evidence to

22 substantiate that.

23 MS. LESHIKAR: Mr. Palazola, do you have

24 any --

25 MR. PALAZOLA: What we could do, if the

0017

1 Panel is concerned about that, we could tender them for

2 admission at this time; and if necessary call the

3 necessary witness or attempt to lay the foundation for

4 those records as we proceed through the hearing today.

5 MS. LESHIKAR: That would be fine.

6 DR. CROCKER: I think they are important.

7 MR. LEICHTER: I was just apprised that Dr.

8 Glass, our expert, reviewed these records. So as such, we


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9 think they fall into some kind of admissible category that

10 way, so we will withdraw our objection at this time.

11 MR. BAUCOM: Okay. Exhibits 1 through 10,

12 then, are admitted. The last part of the e-mail for

13 Exhibit 7 is in addition, and 13 is also admitted as

14 agreed.

15 (Board's Exhibit Numbers 1 through 10 and 13

16 admitted.)


18 call witnesses.

19 MR. PALAZOLA: Board staff would call

20 Detective Sergeant Mazy of the Paris Police Department.

21 We will have to reach him by phone.

22 (Phone call initiated.)

23 MR. LEICHTER: We invoke that he be asked

24 whether or not he's in a room by himself and whether or

25 not anyone else is listening to him, watching him testify

0018

1 and whether or not any other witness who might be


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2 testifying in this proceeding be removed.

3 MR. PALAZOLA: Detective Mazy, I think you

4 are going to be given some instructions and sworn in by

5 hearings counsel. We are in the room right now.

6 THE WITNESS: Okay.

7 MS. LESHIKAR: Detective, this is Nancy

8 Leshikar. I'm the hearings counsel with the Medical

9 Board. I'm going to ask you whether you are, in fact, in

10 a room by yourself?

11 THE WITNESS: Yes, I am.

12 MS. LESHIKAR: All right. And I would

13 instruct that you remain in that room by yourself and not

14 allow anyone else to enter that room while you are giving

15 your testimony. Is that clear?

16 THE WITNESS: Yes.

17 MS. LESHIKAR: Thank you.

18 Mr. Leichter, will that satisfy you?

19 MR. LEICHTER: Yes, and no one else is

20 listening to the phone conversation, right?

21 MS. LESHIKAR: Detective, is anyone else


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22 listening on the phone conversation?

23 THE WITNESS: No.

24 MS. LESHIKAR: All right. I think we've got

25 that clear. He is by himself alone in a room with no one

0019

1 listening. Okay. All right.

2 Detective, I'm going to swear you in now.

3 (Witness sworn.)

4 MS. LESHIKAR: You are now under oath and

5 everything to be testified to will be the truth and

6 nothing but the truth, all right?

7 THE WITNESS: Yes.

8 DETECTIVE SERGEANT JAMES MAZY,

9 having been first duly sworn, testified as follows:

10 DIRECT EXAMINATION

11 BY MR. PALAZOLA:

12 Q Detective Mazy, would you please go ahead and

13 introduce yourself to the Panel.

14 A I'm Detective Sergeant Jay Mazy with the Paris,


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15 Texas, Police Department. I've been employed here almost

16 20 years.

17 Q In your capacity as a detective sergeant for the

18 Paris Police Department, are you familiar with the

19 procedures regarding emergency detentions?

20 A Yes.

21 Q Could you tell us briefly what an emergency

22 detention is and what role you play in that type of

23 detention?

24 A Emergency detention is basically a -- in this

25 particular case, as in most cases, it's either an on-view

0020

1 type of offense to where an officer believes that someone

2 is mentally unstable, mentally handicapped at the moment,

3 to the point that they are a danger to theirself or

4 others, and they require some type of hospitalization to

5 intervene.

6 Q And, Detective, are you familiar with a

7 Dr. Szumlas?

8 A Yes.


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9 Q How are you familiar with Dr. Szumlas?

10 A I was asked by my supervisor to do some follow-up

11 investigation on 911 calls that he was placing to our

12 agency.

13 Q And you talked about 911 calls that were being

14 placed to your agency. Let me ask you a few questions

15 about those calls, Detective. Does the Paris Police

16 Department keep a record of 911 calls that are received by

17 the police department?

18 A Yes, they do.

19 Q And are you familiar with that practice as to how

20 those are recorded?

21 A Not 100 percent. I know that there are audio

22 recordings that are maintained for a certain amount of

23 time and then there are written or recorded messages that

24 are typed in by the dispatchers when the call comes in or

25 goes out.

0021

1 Q If there is a particular individual that calls


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2 the 911 system a number of times, are you able to access

3 those logs and review them?

4 A Yes, for the most part, yes.

5 Q At some point did you have an opportunity to

6 review the 911 calls that were made by Dr. Szumlas?

7 A Yes, I did.

8 Q And do you have a copy of those logs in front of

9 you now?

10 A Yes, if we are talking about the same thing, I

11 do.

12 Q Let me tell you what I'm looking at and we can

13 make sure we are talking about the same thing, we are all

14 on the same page. These would have been part of the

15 materials that were submitted to the Medical Board as part

16 of your complaint. I am looking at a log of 911 calls.

17 These are dated -- they've got a date on the top.

18 MR. LEICHTER: Excuse me. I would have to

19 object. We don't have a notice of these logs. We don't

20 have these logs in front of us. This is obviously going

21 to be a hearsay; it's not comment. We don't necessarily


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22 object, but we would at least like to see what we are

23 referring to.

24 MR. PALAZOLA: These logs are part of the

25 exhibits that have already been admitted into evidence.

0022

1 MR. LEICHTER: As what number?

2 MR. PALAZOLA: These are part of the

3 complaint, which is Tab 4. These are for everyone to kind

4 of follow along. This is going to be Tab 4, Pages 2, 3, 4

5 and 5. And we can take a minute for Mr. Leichter to get a

6 hold of these.

7 MS. LESHIKAR: For the record, when was Mr.

8 Leichter provided with a CD of this Application?

9 MS. KIRK: He was provided with the CD

10 within the ten days' notice period. I believe it was back

11 on the -- I have to look at the --

12 MR. LEICHTER: For some reason, the disk we

13 have didn't work -- doesn't work. It did work. We copied

14 whatever we have, and I have paper copies of a large part


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15 of the file. I'm not finding the 911 log. Give me a

16 minute.

17 MR. PALAZOLA: They look like this, Mr.

18 Leichter.

19 MS. LESHIKAR: Would you mind taking that

20 actual document over to Mr. Leichter to where he can see

21 it.

22 MR. PALAZOLA: Sure.

23 Is the objection withdrawn?

24 MR. LEICHTER: I don't have a copy of that

25 in the material we printed out. For some reason, it

0023

1 didn't make it. It is referenced in here, but it is not

2 in the printout.

3 MS. LESHIKAR: Is it on the CD that you

4 have?

5 MR. LEICHTER: The CD that I have doesn't

6 work.

7 MS. LESHIKAR: Did you inform staff that it

8 did not work?


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9 MR. LEICHTER: It worked in my office. I

10 printed it out because I don't like electronic copies.

11 And for some reason, I don't have the paper copy, so my

12 fault.

13 MS. KIRK: I was uninformed of any issues.

14 MR. LEICHTER: There were no issues. The CD

15 worked. I don't know whether we printed out everything

16 that I believe was on the CD.

17 MS. LESHIKAR: Are we now making copies?

18 MS. KIRK: Cynthia is making copies of

19 everything for Mr. Leichter.

20 MS. LESHIKAR: Let's go off the record for

21 just a moment while the copies are being made.

22 (Off the record.)

23 MS. LESHIKAR: Let's go back on the record.

24 Q (BY MR. PALAZOLA) All right, Detective. You are

25 looking at the same thing we are all now looking at. You

0024

1 are looking at the 911 logs. And at the top of the page,


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2 it's got a date. I think these were printed on February

3 7th, 2011. And they have a Paris Police Department name

4 on them. Are you able to look at those right now?

5 A Yes.

6 Q And if I thumb through these, it looks like the

7 dates of individual log entries began on November 12th,

8 2010 and go through February 6th, 2011. Is that what you

9 are looking at as well?

10 A Yes, 11/12 of '10 and the last one was 2/6 of

11 '11.

12 Q This isn't the first time you have seen these,

13 today, is it?

14 A No.

15 Q Can you summarize for us what these logs reflect?

16 A Basically this is what the dispatcher types into

17 the call screen and -- of what the person is stating, and

18 I'm sure it is paraphrased.

19 Q And the nature of these concerns, who is the

20 person calling 911 in these logs?

21 A This is coming from Dr. Szumlas' residence.


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22 Q What's the nature of his complaint to the 911

23 emergency system?

24 A Basically that he's being harassed by electronic

25 or radio beams and that they are coming into his

0025

1 apartment.

2 Q And did officers respond as a result of these 911

3 calls?

4 A Yes. I'm not 100 percent sure about this very

5 first one, but I know the other ones that they did.

6 Q And have you had an opportunity to discuss with

7 those officers their interactions with Dr. Szumlas?

8 A I did speak to one or two of them. Sometimes it

9 might be the same officer that went out; sometimes it was

10 different officers.

11 Q And I am not, at this point at least, going to

12 ask you to relay the details of those conversations; but

13 to summarize, you had a record of these 911 calls that

14 were being made; you talked to the officers. At some


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15 point, did you also receive a copy of a -- it looks like a

16 typed written document that had Dr. Szumlas's name on it?

17 A Yes, I did. That was given to me by our

18 supervisor or assistant chief of police.

19 Q When you reviewed that note -- do you have a copy

20 of that in front of you right now?

21 A I am looking at it, yes.

22 MR. PALAZOLA: For everyone's benefit, this

23 is going to be part of the complaint documents again.

24 This is going to be, I believe, Page 5 of Tab 4.

25 Q (BY MR. PALAZOLA) You don't need to read this

0026

1 letter to us. Everybody has a copy of this letter here.

2 But if you could just summarize briefly for us --

3 actually, let me ask you a different question, Detective

4 Mazy.

5 Is the information in this letter consistent

6 with the records and the 911 logs and your conversations

7 with the officers who responded to Dr. Szumlas's

8 apartment?


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9 A Yes, they both contain the same complaints and

10 details.

11 Q At some point, Detective, you filed a complaint

12 with the Texas Medical Board; is that right?

13 A I did.

14 Q And why did you file that complaint?

15 A Basically that I felt that he was -- Dr. Szumlas

16 could be a threat to his patients or -- by including the

17 public if this type of behavior was not checked or

18 evaluated by a professional medical facility or something.

19 Q Were you aware at that point in time that Dr.

20 Szumlas had obtained any weapons?

21 A One of the officers did make a notation in the

22 report that he had saw some type of gun inside the

23 apartment on one of these calls.

24 Q Detective, did you -- at what -- we talked a

25 little while ago about the emergency detention and what

0027

1 that process entails. At some point did you decide to


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2 pursue an emergency detention of Dr. Szumlas?

3 A Basically in agreement with the chief deputy of

4 the sheriff's office, we came to the agreement that that's

5 what needed to be done.

6 Q Were you present at the time that Dr. Szumlas was

7 taken into custody as a result of that emergency

8 detention?

9 A Yes, I was.

10 Q Did you have an opportunity to observe Dr.

11 Szumlas while you were there?

12 A Yes.

13 Q Did you have an opportunity to observe his

14 apartment while you were there?

15 A Yes.

16 Q Detective, you actually took photographs of

17 Dr. Szumlas's apartment?

18 A Yes, I did.

19 Q And you made an auto recording of the event as

20 well, correct?

21 A Correct.


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22 Q Do you have a copy of your photographs in front

23 of you?

24 A Actually, I don't believe I do.

25 Q Are they somewhere where you can access them on

0028

1 your computer where you are sitting right now?

2 A I can go outside the door and look at them.

3 Q If you could obtain a copy, I'm going to show a

4 copy of these to opposing counsel, and you'll have a

5 minute to do that.

6 A Okay.

7 Q Thank you.

8 A All right. Hold on.

9 MS. LESHIKAR: Are these in the record?

10 MR. PALAZOLA: Not yet.

11 MR. LEICHTER: Are these for me?

12 MR. PALAZOLA: These aren't extra copies.

13 MR. LEICHTER: I'll object until I get

14 copies for myself.


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15 MS. LESHIKAR: We are going to go off the

16 record for a minute. We are going to be off the record

17 for a moment.

18 (Off the record from 10:29 a.m. to 10:39

19 a.m.)

20 MS. LESHIKAR: Let's go back on the record.

21 MR. LEICHTER: We were apparently sent two

22 disks with the same name, same information, Tab 1 through

23 whatever. Apparently, one tab was supplemented on one of

24 the disks and one tab wasn't supplemented on one of the

25 disks.

0029

1 When we loaded them, our computer said it

2 was the same thing. We apparently loaded one after the

3 other and it erased the other copies of the disk and

4 obviously printed out this. So that appears to be what

5 occurred.

6 MS. KIRK: We did update with the medical

7 records. There were two disks sent, but they all had all

8 the information on both.


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9 MS. LESHIKAR: You have the diskette and you

10 have the documents now, is that correct, Mr. Leichter?

11 MR. LEICHTER: I'm checking to see if it's

12 accurate. Apparently, Ms. Southard had the first disk

13 too.

14 MS. LESHIKAR: Ms. Southard has everything

15 as well. All right. We are back on the record.

16 Detective, are you still with us?

17 THE WITNESS: Yes, I am.

18 MS. LESHIKAR: Good for you. You are going

19 to talk about photographs; is that correct?

20 Q (BY MR. PALAZOLA) Before all this recess, the

21 question I asked you is, did you have an opportunity to

22 take photographs of Dr. Szumlas's apartment?

23 A Yes, I did.

24 Q Do you now have a copy of those photographs in

25 front of you?

0030

1 A I do.


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2 Q What I would like you to do, first of all, just

3 give us a general description of what you observed as you

4 walked into Dr. Szumlas's apartment.

5 A Basically the interior of the apartment was, I

6 guess, somewhat unkept. It looked like maybe someone had

7 -- it was like someone had moved in recently or it was a

8 lot of boxes and stuff maybe packed or unpacked. There

9 wasn't really any type of organization to anywhere inside

10 the apartment.

11 Q And did you see specific things in the apartment

12 that you thought would be a good idea to document with

13 photographs?

14 A Yes. The area that he described as his bedroom,

15 when I entered that was where I saw the large butcher or

16 kitchen knife. It was stuck into a wooden nightstand.

17 And this is where three -- I'm sorry, two of the radio

18 transmitters or deflectors, I'm not exactly sure what they

19 are, but this is where they were found.

20 Q And did you take pictures of the knife that you

21 just talked about and the radio deflectors or equipment?


44/323


45/323

15 possession. If they were going to introduce them into

16 evidence, he should have provided them to staff and we

17 should have been given copies of them quite some time ago

18 so they could have at least been given to our expert.

19 This is unfair surprise outside the

20 requirement that notice be given ten days in advance with

21 the exhibits. I think we can establish that he delayed in

22 waiting to forward these to staff; that he had them in his

23 possession and he should have given them to staff a long

24 time ago.

25 MR. PALAZOLA: If I can respond, and if we

0032

1 need to hit mute, we can do this out of the presence of

2 the witness.

3 MS. LESHIKAR: Hit mute.

4 MR. PALAZOLA: There was a lot of

5 information there but, to me, a lot of these questions are

6 not really questions for Detective Mazy. A lot of these

7 are to be addressed by the rules of the Administrative

8 Procedures Act and the Board rules and are not necessarily


46/323

9 going to be within his realm as a witness to testify

10 about.

11 What is appropriate to voir dire the witness

12 about is whether or not these picture are a fair and

13 accurate representation of what he witnessed in Dr.

14 Szumlas's apartment. Once that foundation is laid, I will

15 offer them as exhibits into evidence. And at that time,

16 Mr. Leichter can make all of those objections he has, and

17 we can discuss that at that point. But I would recommend

18 that we go ahead and lay the foundation for these

19 photographs with Detective Mazy so we can proceed that

20 way.

21 MS. LESHIKAR: Mr. Leichter, I will let you

22 voir dire the witness solely as to the dates he took them,

23 whether he took them, whether they were a fair

24 representation of what he saw at the time. Those are the

25 only purposes for voir dire. Anything else that relates

0033

1 to the delay on the part of the staff to provide you with


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2 anything is not going to be relevant to the voir dire or

3 the purpose of laying the foundation for those particular

4 paragraphs.

5 MR. LEICHTER: He did file the complaint

6 with the Medical Board. He admitted that, so I do think

7 that's relevant. Not to argue with you, but it is a

8 relevant factor in terms of his providing information to

9 staff.

10 MS. LESHIKAR: You can ask an additional

11 question when he provided it to staff. But in terms of

12 providing the basic fundamental foundation for admitting

13 photographs into the record, that is going to be the

14 extent of what you can do. We are not going to be going

15 into any other discussion about to the appropriateness of

16 when you did or did not get those exhibits.

17 All right. Unmute.

18 MR. LEICHTER: Thank you.

19 VOIR DIRE EXAMINATION

20 BY MR. LEICHTER:

21 Q Detective?


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22 A Yes.

23 Q This is Louis Leichter. I represent Dr. Szumlas.

24 When did you take these photographs?

25 A They should have been taken on the day he was

0034

1 taken into custody, which was on the 16th, I believe.

2 Yes, March 16th.

3 Q And that March 16th date is so indicated in the

4 right-hand corner in yellow print, is it not?

5 A It is.

6 Q And I take it these photographs were taken with a

7 digital instrument, digital camera?

8 A Yes.

9 Q And that means they were processed and available

10 for review right away; were they not?

11 A Yes.

12 MS. LESHIKAR: That's beyond the question.

13 You can say when he filed -- ask when he filed them with

14 the Board.


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15 Q (BY MR. LEICHTER) At what point did you provide

16 these documents to staff?

17 A Yesterday.

18 Q Did you provide these documents to anyone else,

19 such as the individuals in conjunction with the commitment

20 paperwork that was provided to the District Court?

21 A No.

22 MR. LEICHTER: That does it.

23 MS. LESHIKAR: Detective -- does that

24 complete your voir dire?

25 MR. LEICHTER: It does.

0035

1 MS. LESHIKAR: Are there any other

2 questions?

3 MR. PALAZOLA: Yes.

4 CONTINUED DIRECT EXAMINATION

5 BY MR. PALAZOLA:

6 Q Detective, I'm going to go through these

7 photographs with you. We have eight of them. What I

8 would like you to do, because we are doing this by phone,


50/323

9 we can't look at them -- see exactly what we are all

10 looking at. We are going to briefly describe them and be

11 as concise as we can.

12 I have eight photographs. I have one of

13 what looks like a pillow with something that's been either

14 -- it was pulled out of the pillow. It looks like some

15 sort of foil. Are you looking at that picture?

16 A Yes, I am.

17 MR. LEICHTER: We will stipulate that the

18 photos are authentic and accurate representations of what

19 occurred. We object -- so we don't have to go through

20 this whole predicate foundation crap -- we object on the

21 notion that he was given lack of notice.

22 They were available 30 days ago. He didn't

23 provide them to staff until staff apparently probably

24 asked him about them. And it's unfair surprise. It could

25 have been reviewed by our expert. It's a complete waste

0036

1 of time and it's in violation of his rights under the


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2 Medical Practice Act, Texas and United States

3 Constitution. Preserving the record.

4 MS. LESHIKAR: So you are going to stipulate

5 that those photographs are an accurate representation of

6 the subjects of which they purport to show; is that

7 correct?

8 MR. LEICHTER: Correct. We object on the

9 basis -- for the reasons I just layed.

10 MS. LESHIKAR: All right. Now, would you

11 like to respond to his objection?

12 MR. PALAZOLA: The response to that would be

13 that first and foremost these are photographs of the

14 inside of Dr. Szumlas's apartment. Again, as to any

15 unfair surprise to the Respondent, these are documenting

16 what Detective Mazy is able to testify to, and these will

17 assist him in explaining what he saw in Dr. Szumlas's

18 apartment.

19 These are photographs. There is no

20 objection to the authenticity of the photographs. We just

21 heard that from Mr. Leichter. I believe they will help


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22 Detective Mazy explain what he saw inside the apartment.

23 I think they will help the Panel.

24 As to any unfair surprise, we didn't know

25 they existed before yesterday. We couldn't make them

0037

1 available before then. If they are going to need a short

2 recess for their expert to review these photographs before

3 he testifies, Board staff would have no objection to that,

4 to have him review these at that point in time.

5 Other than that, I don't see how there's

6 undue prejudice to the Respondent for introducing

7 photographs of his own apartment.

8 MS. LESHIKAR: Panel, I would recommend that

9 Mr. Leichter's objection be overruled.

10 MR. BAUCOM: Fine. Ms. Southard, did you

11 hear that okay?

12 MS. SOUTHARD: I second.

13 MS. LESHIKAR: She said she seconded.

14 MR. BAUCOM: Do you concur?


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15 MS. SOUTHARD: Yes, I do.

16 MS. LESHIKAR: Mr. Leichter, your objection

17 is overruled.

18 And now you do not have to go through the

19 entirety of proving those up. Perhaps you would like to

20 admit them and have the Panel be able to look at them.

21 MR. PALAZOLA: Yes, at this time, Board

22 staff would ask that the eight photographs taken by Dr.

23 Mazy [sic] be offered into evidence as Exhibit 14 -- Tab

24 14.

25 MS. LESHIKAR: Okay.

0038

1 (Board's Exhibit Number 14 admitted.)

2 MS. LESHIKAR: Do we have an extra copy for

3 me by any chance?

4 MR. PALAZOLA: Yes, we do.

5 Q (BY MR. PALAZOLA) Detective, rather than having

6 you go through each of these photographs, I think you

7 described earlier that you that you had witnessed some

8 electronic devices. And I have some photographs with some


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9 objects that look like they are hard plastic with antennas

10 in them. Those are the electronic devices that you are

11 referring to?

12 A Yes, it is.

13 Q And then I see there's -- you have taken a

14 photograph of a -- what looks like a large kitchen knife?

15 A Yes.

16 Q Where did you find that knife when you entered

17 Dr. Szumlas's apartment?

18 A That particular knife was stuck down into the

19 wooden nightstand in his bedroom, the same place where the

20 pillow is located.

21 Q I see a picture of a box that says it's for a

22 Ruger LCP. Is that a box for a handgun?

23 A Yes, it is.

24 Q Did you find a handgun in Dr. Szumlas's

25 apartment?

0039

1 A Yes, inside the apartment in the kitchen area.


55/323

2 Q What was inside -- you have a picture of what

3 looks like the inside of that box. What did you find

4 inside the box?

5 A The box was two -- inside the white box you see

6 there is two boxes of ammunition somewhat. There's 50

7 rounds per box. The locking mechanism that goes to the

8 handgun, and I guess that's some type of stopwatch or

9 something that was in there.

10 Q I think I was asking you before we had an

11 objection about what was in Dr. Szumlas' pillow. Could

12 you -- and I do see a photograph of that. Can you

13 describe what you found in Dr. Szumlas' pillow?

14 A That basically is the same type of product that

15 you see people putting in the windshield of their cars to

16 reflect the sun's rays to the interior of the car. And

17 that's the same item you see behind the headboard there,

18 blue in color.

19 Q And in addition to taking photographs and

20 observing the apartment, did you -- were you present

21 during Dr. Szumlas' conversation with you and the other


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22 officers?

23 A Yes.

24 Q And what was Dr. Szumlas' response when you

25 arrived at the scene?

0040

1 A Basically he was kind of cordial and kind of glad

2 to see us, that his request for something to be done about

3 the situation he has been alleging. He thought that's

4 what we were there for, to take care of the problems with

5 the ultrasound or radio waves.

6 Q At some point did you advise him or did one of

7 the officers on the scene advise him that he was actually

8 under a warrant to be taken in for treatment?

9 A Yes.

10 Q What was his response to that?

11 A I don't recall verbatim, but he basically didn't

12 -- wasn't sure that that was legal to be done to him or

13 against him. But after that, he was very cordial and said

14 he understood. So there was no -- not any argument or


57/323

15 anything verbal or physical in his response.

16 Q Did he indicate to you -- did he make statements

17 at that time that were consistent with the statements in

18 the 911 calls and the letter that was received regarding

19 the satellites and the advanced electronics?

20 A Yes, he was basically just kind of reiterating

21 about the radio waves and that they were actually in an

22 area of the house, where we were at was the worst part for

23 him to be getting those signals.

24 Q Did what you observed in Dr. Szumlas' apartment

25 on the date of his detention reinforce your position that

0041

1 an emergency detention was required?

2 A Yes.

3 Q Why?

4 A Well, in addition to him writing the letters, I

5 mean, he was personally telling us the same thing that we

6 had been receiving either by phone or in writing by the

7 letter; that this had been ongoing since February of last

8 year and it was still consistent with what was happening


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9 on that particular day; that he was still seeing or

10 hearing or feeling some type of objects that apparently

11 were not there.

12 MR. PALAZOLA: We pass the witness.

13 MS. LESHIKAR: Mr. Leichter.

14 CROSS-EXAMINATION

15 BY MR. LEICHTER:

16 Q Officer, it's fair to say you wrote a report

17 regarding these incidents; did you not?

18 A Yes.

19 Q And that report is probably true and accurate in

20 every respect, isn't it?

21 A Yes.

22 Q And it's complete; is it not?

23 A Yes.

24 Q It's fair to say you didn't leave out any

25 pertinent details, true?

0042

1 A I'm sorry. Could you repeat that.


59/323

2 Q It's fair to say you didn't leave out any

3 pertinent details; would you agree?

4 A Not that I'm aware of.

5 Q Because that's what good, trained police officer

6 activity involves, correct?

7 A Correct.

8 Q It's fair to say these photographs are complete

9 in every regard; are they not?

10 A Yes.

11 Q You didn't leave out any pertinent illustrative

12 depictions of relative evidence; would you agree?

13 A Yes.

14 Q So you don't have photographs of material taped

15 to Dr. Szumlas's window, do you?

16 A No.

17 Q These phone calls started in January of 2011; is

18 that accurate?

19 A They started November 2010.

20 Q So your testimony just now that it started in

21 February of last year is not true?


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22 MR. PALAZOLA: Objection, misstates the

23 evidence. His testimony was consistent with the 911 logs.

24 MR. LEICHTER: I think he can answer it. He

25 just testified. I heard him say that it was consistent

0043

1 with Dr. Szumlas's position that this had been occurring

2 since February of 2010; February of last year is what he

3 testified to. That's not what this record indicates. He

4 can answer questions about it.

5 MS. LESHIKAR: Detective, we will have Mr.

6 Leichter restate the question.

7 Q (BY MR. LEICHTER) When does your log of 911

8 calls begin?

9 A November 12, 2010.

10 Q When does it end?

11 A It ends on February 6th of 2011.

12 Q And there's been no calls since Dr. Szumlas's

13 discharge from the Terrell State Hospital, has there?

14 A Not that I'm aware.


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15 Q These calls didn't begin in February of 2010, did

16 they?

17 A No.

18 Q So you testified Dr. Szumlas was cordal?

19 A Yes.

20 Q And was cooperative?

21 A Yes.

22 Q Are you aware that Dr. Szumlas admitted to having

23 a psychotic break?

24 A No.

25 Q Are you also aware that Dr. Szumlas admits and

0044

1 acknowledges that what he experienced at that time wasn't

2 real?

3 A No.

4 Q So it's fair to say that you haven't received any

5 information since Dr. Szumlas's discharge from the Terrell

6 Hospital that indicates he's an ongoing threat to the

7 citizens of Paris, Texas; is there?

8 A No.


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9 Q In fact, you haven't heard any information on Dr.

10 Szumlas since his discharge from the Terrell State

11 Hospital, have you?

12 A I have none to my knowledge.

13 Q And was that gun loaded, Detective?

14 A Yes, it was.

15 Q It's not illegal to own a weapon in the state of

16 Texas, is it, Detective?

17 A No.

18 Q In fact, you didn't arrest Dr. Szumlas for having

19 an illegal weapon, did you?

20 A No, I did not.

21 Q Dr. Szumlas, you ran his criminal history, did

22 you not?

23 A I don't believe I did. I do not recall, and I do

24 not have it here in front of me. I don't think I ever ran

25 a criminal history.

0045

1 Q So it's fair to say that you have had no


63/323

2 interaction with Dr. Szumlas since you took him into

3 custody on a mental health commitment; is that accurate?

4 A I have not.

5 Q So you really have no way of knowing whether he's

6 an ongoing danger at this point in time at all, do you?

7 A I do not.

8 Q Is it fair to say, Detective, that there is no

9 record of any communication between Dr. Szumlas and your

10 department since March 18, 2011?

11 A None that I'm aware of.

12 Q Is it fair to say also that had there been

13 communication, you would probably be aware of it?

14 A Probably so. I would probably get some type of

15 notification from somebody if they knew that I was

16 involved in the case.

17 Q Detective, you indicated that Dr. Szumlas seemed

18 somewhat surprised or irritated that you were taking him

19 into custody; did you not?

20 A Yes.

21 Q That's pretty normal though, isn't it?


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22 A I would agree.

23 Q And once you apprised Dr. Szumlas of the reasons

24 for your taking him into custody, he acquiesced; did he

25 not?

0046

1 A Yes.

2 Q In fact, when you took him into custody, you were

3 in no way afraid for your safety, were you?

4 A Well, not at that -- not at the great amount, I

5 don't guess. We believed we had the apartment secured and

6 had him secured.

7 Q In fact, Dr. Szumlas displayed no violent

8 tendencies toward you or anyone else during this whole

9 affair; isn't that true?

10 A True.

11 Q Are you aware that Dr. Szumlas was getting ready

12 to move out of that apartment?

13 A No.

14 Q There were a bunch of boxes there and items being


65/323

15 packed. Would that be a fair description of the scene you

16 saw?

17 A That would be a description of what I saw, yes.

18 Q When is the last time you talked to staff with

19 the Texas Medical Board regarding your testimony today?

20 A Yesterday.

21 Q Is that when you apprised them of the pictures

22 you took?

23 A Yes.

24 MR. LEICHTER: Pass the witness.

25 MS. LESHIKAR: Is there any redirect?

0047

1 REDIRECT EXAMINATION

2 BY MR. PALAZOLA:

3 Q Detective Mazy, I have a couple of follow-up

4 questions. When Dr. Szumlas -- you were just asked if he

5 was surprised and irritated and if that was unusual. Did

6 Dr. Szumlas offer any of his own opinions regarding

7 whether or not he felt he needed treatment, if you recall?

8 A I apologize. Could you repeat that, please.


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9 Q At the time that you discussed with Dr. Szumlas

10 that you had a warrant to take him into custody for

11 treatment, did he -- what was his response regarding his

12 needing treatment?

13 A Once again, I don't recall exactly word for word

14 what he said. But he kind of -- he was surprised that we

15 were there, and as to why we were there, that there was

16 any type of -- he did not believe there was any type of

17 problem, you know, going on with him, that he knew of.

18 Q You were asked just a second ago, at the time you

19 took him into custody if you felt threatened. Did you

20 have any reason before, as you were approaching the

21 apartment, to feel concern for your safety?

22 A Yes, the other officers, like I said, have made

23 reference to that was some type of -- actually, that there

24 was a long gun. I don't know if it was a rifle or

25 shotgun, that he had seen on previous calls, leaned up

0048

1 inside the apartment.


67/323

2 MR. PALAZOLA: And, Detective, I don't have

3 anything further for you. I am going to pass the witness.


5 RECROSS-EXAMINATION

6 BY MR. LEICHTER:

7 Q Detective, you did search an inventory of the

8 apartment; did you not?

9 A We did a search. We did not do any type of

10 written inventory other than the gun that was taken in.

11 Q You didn't find a long gun such as a rifle or a

12 shotgun which you just described; did you?

13 A We did not see one, no.

14 Q In fact, you found no record that Dr. Szumlas had

15 ever owned such a gun; did you?

16 A I did not do any type of gun search on his name.

17 Q So essentially you found no record that Dr.

18 Szumlas had ever owned such a type of gun?

19 A No.

20 MR. LEICHTER: Thank you. Pass the witness.

21 MR. PALAZOLA: Nothing further.


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22 MS. LESHIKAR: Detective, you are now

23 excused from your testimony. I'm sorry. The Panel has

24 some questions.

25 EXAMINATION

0049

1 BY DR. CROCKER:

2 Q Hi, this is Dr. Crocker. I just have a couple of

3 questions to clarify his demeanor. At no time did he

4 brandish the gun at anybody?

5 A No.

6 Q And when he was asked to give it up, he gave it

7 up without any fuss?

8 A Yes, we actually found the box first and couldn't

9 find the gun, and he really didn't recall where he put it.

10 He said he thought it was in the kitchen, and that's where

11 we found it.

12 Q And the picture of the knife, did he ever

13 brandish the knife?

14 A No.


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15 Q Was it just laying on his kitchen counter?

16 A When we found it, it was -- the picture of it was

17 taken laying down on a counter. It was actually stuck

18 down into a wooden table.

19 Q Like a knife holder or?

20 A I'm sorry?

21 Q Like a knife holder?

22 A No, just stuck like you would just stick it into

23 maybe a chopping block or knife holder. It was stuck into

24 the wood, pointing down.

25 Q Okay. And those electronic devices, there's one

0050

1 that has six antennas that's hooked up to a speaker and

2 one that's just four antennas and a little blue box. Have

3 you ever seen any electronics like that?

4 A No, I have not.

5 Q So you don't have any idea what they are for?

6 A We asked him and he -- I don't remember exactly

7 what he said. They were either a receptive device or

8 deflective device. I'm not exact sure what his


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9 explanation was for those.

10 Q When you looked through his apartment, you didn't

11 find any drugs?

12 A No.

13 Q Was there any alcohol bottles?

14 A No. None that I noticed. I did not -- there

15 were three of us there. I didn't do -- I may not have

16 searched someplace someone else did or looked.

17 DR. CROCKER: That's all I have.

18 MS. LESHIKAR: Mr. Baucom, do you have any

19 questions?

20 MR. BAUCOM: No.

21 MS. LESHIKAR: Ms. Southard, do you have any

22 questions?

23 MS. SOUTHARD: No, ma'am. Thank you.

24 MR. LEICHTER: I should be entitled to ask

25 questions, I believe, now in response to that.

0051

1 MS. LESHIKAR: Limited solely to what was


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2 brought up.

3 MR. LEICHTER: Of course.

4 FURTHER RECROSS-EXAMINATION

5 BY MR. LEICHTER:

6 Q Officer, remember I asked you if you provided a

7 fair and comprehensive, complete report?

8 A Yes.

9 Q And you admitted it was fair to say you didn't

10 leave anything relevant out of that report?

11 A Not that I'm aware of.

12 Q And drugs, alcohol, weaponry, violence would be

13 relevant things, correct?

14 A I would think so, yes.

15 Q It's fair to say the absence of those things

16 indicate they weren't an issue?

17 A It merely states the fact I didn't see them or

18 didn't photograph them if they were there.

19 Q It's fair to say, isn't it, that if drugs,

20 alcohol or something else was an issue it would have been

21 brought up in the report?


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22 A I would think so.

23 Q And violence, officer threat for safety, et

24 cetera, if it was an issue would have been brought up in

25 the report, correct?

0052

1 A Yes.

2 Q And Dr. Szumlas was cooperative?

3 A Yes.

4 MS. LESHIKAR: Thank you.

5 MR. PALAZOLA: I may have to have one

6 further question too.

7 FURTHER REDIRECT EXAMINATION

8 BY MR. PALAZOLA:

9 Q Detective, if you recall, what did Dr. Szumlas --

10 did Dr. Szumlas tell you what the purpose of having the

11 knife in his nightstand was?

12 A The purpose was for his protection in case he was

13 somewhere in one room and his gun was in another room.

14 MR. PALAZOLA: That's all I have.


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15 MS. LESHIKAR: Mr. Leichter?

16 MR. LEICHTER: No.

17 MS. LESHIKAR: Detective, you are now

18 excused from your testimony. We thank you very much for

19 your time.

20 THE WITNESS: Thank you.

21 MS. KIRK: At this time, the Board would

22 like to call Dr. Messer.

23 (Phone call initiated.)

24 MS. KIRK: This is Claudia Kirk at the

25 Medical Board. You understand you are testifying at a

0053

1 temporary suspension hearing?

2 THE WITNESS: Right.

3 MS. KIRK: Now, the hearings counsel is

4 going to instruct you and swear you in.


6 MS. LESHIKAR: Dr. Messer, this is Nancy

7 Leshikar. I'm the general counsel of the Medical Board.

8 At this time, you are going to be preparing to provide


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9 your testimony. Is there anyone in the room with you?

10 THE WITNESS: No.

11 MS. LESHIKAR: Is there anyone listening to

12 this phone call?

13 THE WITNESS: No, ma'am.

14 MS. LESHIKAR: You are instructed that no

15 one is to come into the room while you are testifying nor

16 are they to overhear this particular phone call, because

17 we have invoked the Rule which means that others may not

18 be present while you are testifying.


20 MS. LESHIKAR: I'm going to swear you in.

21 (Witness sworn.)

22 MS. LESHIKAR: Thank you. You are now sworn

23 and you are under oath.

24 MARK MESSER, M.D.

25 having been first duly sworn, testified as follows:

0054

1 DIRECT EXAMINATION


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2 BY MS. KIRK:

3 Q Could you please introduce yourself for the

4 record?

5 A My name is Dr. Mark Messer.

6 Q And what is your profession?

7 A Psychiatry.

8 Q And can you describe your training.

9 A Well, I completed medical school in Fort Worth

10 and then did a four-year psychiatry residency afterwards.

11 Q And how many years have you practiced in that

12 area?

13 A Approximately 13.

14 Q And have you worked with patients who have

15 psychosis or schizophrenic-type illness?

16 A Yes.

17 Q Approximately how many patients have you seen

18 with these type of conditions?

19 A Throughout the 13 years?

20 Q Well, how many do you see on average a week, to

21 give us an idea.


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22 A 20.

23 Q Are you licensed to practice medicine in the

24 state of Texas?

25 A Yes.

0055

1 Q Since what year?

2 A Until what year?

3 Q Since what year? When were you licensed?

4 A 2006, I believe.

5 Q Could you describe your current practice.

6 A I work on an acute care unit, acute care male

7 unit. And we have approximately 25, 28 patients on the

8 ward at any time, with a majority being schizophrenic.

9 Q And is that where you first encountered Dr.

10 Szumlas?

11 A Yes.

12 Q Let's discuss his admission to the Terrell State

13 Hospital. How was he admitted -- how did the admission

14 come about?


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15 A Well, my understanding, he had called the police

16 department and they brought him -- I'm not sure if it was

17 directly to Terrell State Hospital. That's my

18 understanding, though, that he was brought directly here.

19 Usually they go to a prior hospital for several days. And

20 that he was brought here and admitted to the acute care

21 ward.

22 Q And at that time, were you his main psychiatrist

23 during that whole stay?

24 A Yes.

25 Q Can you describe his symptoms on admission?

0056

1 A He was suffering from auditory hallucinations and

2 paranoid delusions.

3 Q And approximately how long did he have these

4 symptoms?

5 A Prior to admission?

6 Q Yes.

7 A Well, the admission evaluation recorded it as

8 five months.


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9 Q And when he came in, his first admission, would

10 you describe those symptoms as mild, moderate, severe?

11 How would you describe that? Please explain.

12 A I would say moderate to severe.

13 Q And based on those symptoms, did you make a

14 diagnosis?

15 A No, not yet. Not until discharge.

16 Q At discharge, what was he diagnosed with?

17 A Psychotic disorder not otherwise specified.

18 Q And what was your treatment starting from

19 admission based on his symptoms?

20 A We started him on the anti-psychotic Risperdal.

21 Q What dosage?

22 A We titrated up to three milligrams per day.

23 Q And is that a high dose, a medium dose? How

24 would you describe that?

25 A Medium.

0057

1 Q How long was he hospitalized?


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2 A 12 days.

3 Q Let's talk about his discharge. You were the

4 discharging physician, correct?

5 A Yes.

6 Q Describe his symptoms and demeanor at that time.

7 A Well, he was much improved. He appeared to have

8 clear, lucid, organized thought processes. He denied

9 having the thoughts or worries about the paranoid themes,

10 and stated that his auditory hallucinations had largely

11 resolved and that he was doing much better.

12 Q When you say they were largely resolved, meaning

13 that he may have still had some or not?

14 A It's possible that he may have had them at a much

15 reduced frequency and intensity.

16 Q Would you say he was stabilized or cured at this

17 point?

18 A Stabilized.

19 Q And as far as you know, he was living alone? He

20 was going home to live alone when you discharged him?

21 A To my knowledge, yes.


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22 Q Did he talk about having any friends or family

23 that lived nearby?

24 A No.

25 Q Did you send him home with any discharge

0058

1 instructions?

2 A Well, the emphasis was placed on compliance with

3 his medicine and outpatient clinic follow up.

4 Q And did he tell you how he was going to go about

5 getting those medications, and how he was going to follow

6 up?

7 A Yes.

8 Q Where was he going to go?

9 A I think he was going to Lakes Regional, which is

10 a mental health care center in Dallas.

11 Q Now, with this disease in general, the psychosis,

12 is it possible that even with medication you can still

13 exhibit some symptoms?

14 A Yes.


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15 Q Is it possible that it may take months to

16 actually find the right dosage to control the symptoms

17 adequately?

18 A No, it shouldn't take months to find the

19 appropriate dosage, no.

20 Q How long would it take to actually know whether

21 he's going to be stabilized on that medication?

22 A That's difficult to say. It could be as short as

23 five days or as long as several weeks.

24 Q So months? Okay. And what would happen if he

25 stopped taking the medication?

0059

1 A Well, there's a likelihood or possibility that

2 his symptoms would return.

3 Q And at the time he was admitted and he had these

4 symptoms, was he aware that he was ill?

5 A Well --

6 Q Other than what the police told him? I mean, did

7 he understand that he was psychotic?

8 A My impression was if he did, it was in a minimal,


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9 mild way. Not a full understanding, no.

10 Q So if for some reason he stopped taking the

11 medication and he did revert back to these symptoms, it

12 would be likely that he would not understand he's ill once

13 again; is that a true statement?

14 A I would believe so, yes.

15 Q You said when he had minimal issues once he was

16 discharged. I'm going to read to you a statement that he

17 made after discharge. I would like you to tell me if

18 that's consistent with what he was hospitalized with.

19 The aliens were invading my head while I was

20 in my apartment and I went outside and sat in my car with

21 tinfoil on my head to block the rays, which is a total

22 fabrication and suggests to me possible guilt and

23 involvement on their part.

24 And he's referring to the sheriff's

25 department that reported this to the Board. Does that say

0060

1 anything to you?


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2 A This was a written statement after discharge?

3 Q Yes.

4 A Well, could you read the first sentence over

5 again, please.

6 Q Sure. Actually, I'll read the whole thing. I

7 just received -- I just received confirmation letter from

8 the Board regarding my temporary suspension and in it the

9 sheriff's department told the Board that I had called and

10 said, quote, the aliens were invading my head while I was

11 in my apartment and that I went outside and sat in my car

12 with tinfoil over my head to block the rays, unquote,

13 which is a total fabrication and suggests to me possibly

14 some guilt or involvement, question mark, on their part,

15 question mark, dot, dot, dot, Rick.

16 A Well, everything seemed clear until the last part

17 of the suggestion that they may play a role, with might

18 possibly point to still being paranoid. That's my

19 impression.

20 Q Did you have a chance to review the Lake Regional

21 records from his discharge?


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22 A Yes, I did.

23 Q Give me one minute to sort through my junk.

24 A Sure.

25 Q If you look on Page 27 on the progress note. It

0061

1 is dated 3/31/2011. It says, quote, unquote, Rick states

2 it is a fact, unquote, that radioactive waves are beaming

3 into his apartment and at times, quote, hears voices from

4 the radio. What does that say to you?

5 A Well, if he's meaning it -- that that was

6 happening at the time he made the statement, which was

7 approximately two, three days after discharge, then

8 obviously he wasn't stabilized completely.

9 Q And as far as his discharge, did he notify you of

10 a psychiatrist that he was going to see or a primary care

11 physician?

12 A Yes.

13 Q And did he give you a name?

14 A Not to my recollection, no. I mean, he might


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15 have. I don't remember the name, if he did.

16 MS. KIRK: Pass the witness.


18 CROSS-EXAMINATION

19 BY MR. LEICHTER:

20 Q Doctor, I take it you graduated from TCOM; is

21 that correct?

22 A Yes.

23 Q Did you do residency at the JPS?

24 A Residency in the University of Tennessee in

25 Memphis.

0062

1 Q Are you Board certified?

2 A D.O.

3 Q Are you Board certified in psychiatry?

4 A No.

5 Q Is that because you didn't take the examination

6 or didn't pass the examination?

7 A I haven't taken it.

8 Q And you are a full-time employee at the Terrell


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9 State Hospital?

10 A I am.

11 Q Doctor, it not unlikely for individuals who

12 experience psychosis who, when they experience the

13 psychosis, think the events are real; isn't that true?

14 A Yes.

15 Q It's only after treatment that they are able to

16 ascertain truth from the false; would you agree?

17 A I would.

18 Q Now, you did not diagnose Dr. Szumlas with a

19 schizophrenic-type disorder, did you?

20 A No.

21 Q And no other mood-related disorder as well,

22 correct?

23 A I'm sorry?

24 Q No other mood-related disorder as well, correct?

25 A No, no mood component.

0063

1 Q You would expect, Doctor, that the symptoms upon


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2 initiation of treatment with Risperdal would take some

3 time to resolve, at least a few days; isn't that true?

4 A Yes.

5 Q And they, in fact, did resolve while he was at

6 the Terrell State Hospital, didn't they?

7 A That was my impression, yes.

8 Q Because you, in fact, wrote a discharge summary

9 that was signed by you, Mark Messer, D.O., and it looks

10 like it was typed on 4/6/11 and dated 4/6/11; isn't that

11 true?

12 A Yes.

13 Q Do you have that discharge summary in front of

14 you?

15 A No.

16 Q Can you grab it?

17 A I have it on computer.

18 Q Let me ask: Do you need time to find it?

19 A Yes, please.

20 Q You can notify us when you have found it.

21 A All right.


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22 Q Thank you.

23 MS. LESHIKAR: Mr. Leichter, are you

24 referring to an exhibit in the packet?

25 MR. LEICHTER: It was State's Exhibit -- I

0064

1 believe the medical records was 13; is that right? And in

2 our package, it's reverse chronological order. It was

3 about Page 4 of the record. It's entitled, Physician

4 Discharge Order Inquiry, and it's a typewritten note.

5 It's three pages long.

6 MS. LESHIKAR: Did you say Exhibit 13? It

7 was staff's exhibit. What number did you admit it as?

8 MS. KIRK: It's all together from Terrell.

9 It is Number 8. The whole exhibit is Number 8.

10 MS. LESHIKAR: Thank you. I thought, just

11 to clarify, 13 is only from Lake.

12 MS. KIRK: Lakes Regional.

13 MR. LEICHTER: Sorry.

14 MS. LESHIKAR: All right. So we are on the


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15 same document; is that correct?

16 THE WITNESS: Okay. I have it now. Sorry

17 for the delay.

18 Q (BY MR. LEICHTER) That's okay. We are probably

19 going to come back to it.

20 The treatment at the Terrell State Hospital

21 involves a multidisciplinary approach to help stabilize

22 and treat the patient; does it not?

23 A That's correct.

24 Q And you have nurses, other support staff, other

25 therapy providers who all integrate and report to you in

0065

1 order to provide you with appropriate information to make

2 diagnosis, treatment recommendations and discharge

3 planning, correct?

4 A Yes.

5 Q And all that is taken into account in your

6 discharge summary; would you agree with that?

7 A Yes.

8 Q So isn't it fair to say, Doctor, that there is no


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9 mention of aliens or alien intrusion in any of the

10 discharge paperwork or medical records; that that wasn't

11 one of Dr. Szumlas's hallucinations?

12 A No, I don't recall anything about aliens.

13 Q Now, the statement that Ms. Kirk read to you

14 referenced aliens; did it not?

15 A I don't remember, to be honest.

16 Q Well, she just read it to you to try and get you

17 to admit that Dr. Szumlas was insisting that he continued

18 to have hallucination, and the statement contained aliens.

19 Let me find it and read it to you.

20 It said, who told the Board and I had called

21 and said, quote, the aliens were invading my head while I

22 was in my apartment and I went outside and sat in my car

23 with tinfoil over my head to block the rays, which is a

24 total fabrication. That's what she read to you; did she

25 not?

0066

1 A That's true.


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2 Q It's also fair to say that nowhere in any of the

3 records or any of the information provided to you in the

4 treatment of Dr. Szumlas was there a complaint regarding

5 aliens ever brought forward by anybody, correct?

6 A No.

7 Q So you don't know if Dr. Szumlas was objecting to

8 the fact that they were talking about aliens when that was

9 not what he had complained of; you don't know that, do

10 you?

11 A Right.

12 Q Would that change your opinion if that was the

13 fact, that he was just saying, hey, factually, that's not

14 accurate. I think you should have an accurate

15 understanding of what these facts are. Does that change

16 things?

17 A No.

18 Q Why not?

19 A Does it change that he offered the opinion on

20 aliens?

21 Q No, the fact that -- isn't it possible, based on


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22 that, that he was saying, no, that wasn't the presenting

23 question upon admission. The presenting question on

24 admission had to do with my thoughts that I was being

25 followed by government surveillance. It had nothing to do

0067

1 with aliens?

2 A Right.

3 Q You don't know what that statement means, do you,

4 Doctor?

5 A Well, like I said, he didn't say anything about

6 aliens during his stay here on presentation or discharge.

7 I'm not sure what to make of the alien statement

8 afterwards.

9 Q So you don't know whether he was contesting that

10 those allegations were not part of the initial admission

11 criteria, correct?

12 A Yes.

13 Q Doctor, you would expect someone like Dr. Szumlas

14 to have symptoms such as those that he had prior to


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15 admission, with a discharge diagnosis of psychotic

16 disorder NOS, correct?

17 A Yes.

18 Q Was it the treatment team's recommendation or

19 your recommendation to start him on the Risperdal?

20 A It was mine.

21 Q And you did note, at least the medical records so

22 indicate, that he started to stabilize after just a few

23 days, correct?

24 A That is correct.

25 Q And you hospitalized him a total of 12 days,

0068

1 accurate?

2 A Yes.

3 Q And it's fair to say also that he was probably

4 stable before discharge, but you kept him a couple extra

5 days in order to ensure that he was safe to go home,

6 correct?

7 A That is correct.

8 Q You said that he was much improved?


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9 A I felt so.

10 Q And you also testified that Dr. Szumlas had no

11 thought or worries upon discharge, correct?

12 A That he had what?

13 Q He didn't exhibit any thoughts or worries about

14 being discharged; that the actual surveillance was real,

15 correct?

16 A He know -- to my opinion, he no longer felt that

17 that was an issue, yes.

18 Q You knew he was a cardiologist; that's clear from

19 your discharge summary, correct?

20 A Yes.

21 Q You didn't make any recommendation in there about

22 him returning or not returning to work, did you?

23 A Did I make a recommendation?

24 Q The report does not have a recommendation with

25 regards to him returning to work, does it?

0069

1 A I did not make any recommendation.


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2 Q In fact, you specifically didn't say, don't

3 return to work, did you?

4 A That's right.

5 Q In fact, you testified previously that Dr.

6 Szumlas had stabilized while in the care and under

7 treatment at Terrell State Hospital, correct?

8 A Yes.

9 Q Let me ask you: Dr. Szumlas was a very complaint

10 patient; was he not?

11 A That's right.

12 Q And he was very cooperative with you, correct?

13 A Yes.

14 Q He was nonviolent?

15 A Yes.

16 Q In fact, a lot of the other patients who are

17 admitted into the facility were violent offenders; were

18 they not?

19 A That's true.

20 Q And Dr. Szumlas remained free and clear of any of

21 those kind of interactions with those individuals; didn't


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15 overall health?

16 A I don't know. I don't know what his feelings

17 were in that regard.

18 Q Let me ask you, Ms. Kirk also read to you about a

19 note previously from Lakes Regional Medical Center wherein

20 she makes a quote that Dr. Szumlas purportedly made on

21 March 31, 2011, okay?

22 A Yes.

23 Q You don't know the context of that quote, do you?

24 A I have read it.

25 Q It states, it is a fact that radio waves are

0071

1 beaming into his apartment and at times hears voices from

2 the radio. You don't know whether Dr. Szumlas was saying

3 this was the nature of the reason I was admitted or that

4 he was still having those hallucinations?

5 A That's right.

6 Q Okay.

7 A It's one way or the other.

8 Q And it's unclear from that document, wouldn't you


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9 agree, or at least as far as what you have personal

10 knowledge of, what he was thinking at the time