The attorney representing a Duluth surgeon accused of sexually assaulting a patient and touching five other women patients inappropriately wants to examine all medical records of his client's dealings with the women.
Superior lawyer Rick Gondik made the request Friday in Douglas County Circuit Court on behalf of his client, Dr. Javier Enrique De La Garza. The 51-year-old gastroenterologist is charged with two counts of third-degree sexual assault, both felonies, and one count of fourth-degree sexual assault, a misdemeanor. All of the criminal charges involve one woman.
A 42-year-old woman claims De La Garza touched her in a sexually inappropriate way during examinations and had intercourse with her without her consent on a boat at Barker's Island Marina in 2006.
De La Garza has pleaded not guilty to all charges.
The Douglas County district attorney's office is attempting to strengthen its case by introducing into evidence complaints from five other women who allege De La Garza touched them in sexually inappropriate ways. No criminal charges have been brought in connection with those allegations. The court has not decided whether those statements are admissible as evidence.
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Gondik told Douglas County Circuit Judge Michael Lucci that he wants all notes, appointment slips, messages and medical records in the files of the six women while being treated by De La Garza. Gondik said the records might produce evidence that the women made appointments to see the doctor after the dates they alleged the crimes and improprieties took place.
"Part of what we're going to demonstrate through those records -- with at least some of the other individuals, as well as perhaps the state's complaining witness -- is that they were under sedation at the time these alleged improprieties occurred," Gondik said outside the courtroom after the hearing. "Of course, under the sedation that's given to people that undergo certain medical procedures they act as hallucinogens and certainly affect memory. So we believe those are all relevant to a just determination of this case."
Douglas County prosecutor James Boughner said he will meet with the women to see whether they are willing to sign releases giving the defense access to all medical records involving their appointments with De La Garza.
If the women decline to release their records, a hearing will be held Nov. 2 for both sides to argue the issue to Lucci. Gondik also filed a written motion Friday for an order allowing the court "in camera'' (in private) to review the medical records of the accusers in the case.
De La Garza waived his right to a speedy trial Friday. His trial had been scheduled to start Nov. 6. It has not yet been rescheduled.
The St. Luke's surgeon reached an agreement with the Minnesota Board of Medical Practice two weeks ago to stop practicing medicine while the board investigates complaints against him.
De La Garza has practiced at St. Luke's since 2004. A gastroenterologist is a physician who specializes in the diagnosis and treatment of disorders of the gastrointestinal tract, including the esophagus, stomach, small intestine, large intestine, pancreas, liver and gallbladder.
