AMENDED AFFIDAVIT OF DR. MARK NICHOLS
STATE OF
TEXAS
COUNTY OF
HARRIS
BEFORE ME, the undersigned
authority, on this day personally appeared Mark Lynn Nichols, who, after being
first duly sworn deposed and stated under oath the following:
“My
name is Dr. Mark Nichols. I am a physician residing in Harris County, Texas. I
am also the sole original member of Mark L. Nichols, M.D., P.A., one of the
Plaintiffs in this case. I am above twenty-one (21) years of age, and am
qualified to make this affidavit. Each and every statement made herein is
within my personal knowledge and is true and correct.
On
January 17, 2001, Harry Harrison visited my office after being referred to
Houston Ear Nose & Throat Clinic, LLP, by Dr. R.L. McClendon. Mr. Harrison
was seeing me for snoring problems. I saw Harry Harrison, made initial
diagnoses and proceeded to treat him in accordance with that diagnosis.
After
my treatment of Harry Harrison, namely in April, 2002, 1 became aware of a
April 3, 2002, letter that Harry Harrison wrote and published to Unicare Life
& Health Insurance Co. The letter states that records and documents that I
kept in my medical practice for the patient, Harry Harrison were, according to
the letter, “extremely misleading records.
After
that, Mr. Harrison’s wife, Dottie Harrison, made a complaint against me to the
Texas State Board of Medical Examiners. She made the complaint in a letter dated
July 11,2002. Dottie Harrison also sent a letter to the Houston Ear Research
Foundation, a charitable organization on whose board 1 sit and to which I
personally contribute time and service. That letter lodged “a formal complaint”
against me. That letter again made comments about my records being misleading and
incomplete. From Dottie Harrison’s letters, I ascertained that Mrs. Harrison
publicly disclosed the contents of Harry Harrison’s health history on her
website.
At this point in time, I was
concerned that there was a proceeding in which my professional reputation would
be involved, namely, an administrative proceeding involving the Texas State
Board of Medical Examiners, as well as a civil proceeding based on the disparaging
remarks made by Dottie Harrison. It was at that point that I released
information to my attorney, Robert J. Killeen, Jr., and the law firm of Killeen
& Wheat, PLC, to defend in the administrative or civil proceedings that
were brought by Dottie Harrison, for her husband, the patient, against me.
Disclosure of the medical records of Harry Harrison were necessary for the
defense, were relevant to my defenses and were necessary to institute my claims
against the Harrisons.
The document made the basis
of the Harrisons’ claims is a confidential patient health history form filled
out by Harry Harrison on January 17, 2001. On the form, the question is asked,
“do you have or have you ever had any of the following: (Please circle).”
Underneath that question are several words. Harry Harrison circled the word
“alcoholism.”
I maintained clear, written
and complete medical records for Mr. Harrison. Further, in writing the records
that I did for my patient, I did not write them in such a way as to willfully attempt
to injure Harry Harrison. In writing medical records for Harry Harrison, I was
thoughtful, and committed no error of judgment. I further relied on Harry
Harrison to provide complete and honest information regarding his medical
history in the forms that he was required to complete personally. I was
consciously aware of Harry Harrison’s condition and did not act in derogation
of his rights, safety or welfare. In my treatment of Harry Harrison, I treated
him with loyalty, utmost good faith and candor. In treating Harry Harrison, I
never engaged in any amount of self-dealing, but always dealt honestly and
fairly with Mr. Harrison, disclosing all of his medical conditions to the right
persons who needed to know them for his future treatment. I dealt with integrity
with Mr. Harrison and wrote complete medical records in keeping with standards
applicable for ear, nose and throat specialists in the Houston, Harris County
vicinity, the place where I practice medicine.
Additionally, by keeping the
medical records that I did for my patient, Harry Harrison, I never intended or
set out to conduct myself in a fashion that would result in Harry Harrison
being denied medical coverage. I simply never wanted that to happen for him. I
made no overt act to interfere with Harry Harrison’s ability to obtain health
insurance. In fact, when asked to assist the Harrisons in obtaining better
health coverage for Harry, I and my clinic assisted the Harrisons in their
attempts.
Mrs. Harrison’s sending a
letter to the Texas Board of Medical Examiners harmed me and my medical
practice (Mark L. Nichols, M.D., P.A.). Mrs. Harrison has never been my
patient. Mrs. Harrison’s letters to the Texas Board of Medical Examiners as
well as to the Houston Ear Research Foundation were malicious and harmed me and
my practice.
I practice medicine as Mark
L. Nichols, M.D., P.A. My P.A. has goodwill and longevity in the Houston area.
Damages suffered by me as an individual physician equally affect my P.A. In
other words, damage and injury inflicted on me by Defendants’ defamation
detrimentally affects me and my P.A. in equal degrees. Attached to this
affidavit as Exhibit “A-l” are true and correct copies of business records for
Houston Ear, Nose & Throat Clinic, L.L.P., Exhibit “A-I” are true and correct
copies of the original business records. As a partner in Houston Ear, Nose
& Throat Clinic, L.L.P., I am a custodian of the records of Houston Ear,
Nose & Throat Clinic, L.L.P. that pertain to my patients and my billing
records. Exhibit A-i consists of copies of records or data compilations made at
or near the time by, or from information transmitted by a person with knowledge
of the Houston Ear, Nose & Throat Clinic, L.L.P. records and data
compilations. It was within the regular practice of Houston Ear, Nose &
Throat, L.L.P., to make such records and data compilations and they were kept
in the course of a regularly conducted business activity.
Exhibit “A-I” demonstrates
that the first month after Mrs. Harrison published false information regarding me
on her website (i.e., June, 2002) my gross income
decreased $95,619.00. There is no explanation for the decline in gross revenues
that resulted in June, 2002, other than that they were caused or were
contributed to by the statements made by Mrs. Harrison on her website and in
other publications. Because of the many years that I have maintained a practice
and supervised my gross billings, I am aware of forces that could affect gross
revenues. I am unaware of any other market force that could explain a rapid and
dramatic decrease in gross revenue after Mrs. Harrison’s publications. This
decrease affects the market value of my practice. A medical practice’s value is
based on the amount of revenue it generates. The Harrisons’s actions greatly
harmed my gross revenue. Further because Mrs. Harrison was not my patient, her
letters to the Houston Ear Research Foundation and to the Texas Board of
Medical Examiners disregarded any of my rights or the rights of Mark L.
Nichols, M.D., P.A. Because of her gross, wanton and reckless disregard for my
rights, 1 am entitled to recover exemplary damages in this case.
The
counterclaim brought by Harry and Dottie Harrison countersues me for fraud
stating that I was the person that circled “alcoholism” on the confidential
patient health history. I did not circle “alcoholism” on Harry Harrison’s
confidential patient health history. Further, Harry Harrison testified at his
deposition that he has stated affirmatively in the past that he is an
alcoholic. Thus, the word “alcoholism” circled on the confidential patient
health history is not a false statement.”
Dr. Mark Nichols
SWORN TO AND SUBSCRIBED
before me by Dr. Mark Nichols, Individually and as sole member of Mark L.
Nichols, M.D., P.A., on the 7th day of April, 2003.
(Notary signature and stamp)
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