Re: a few things
a_weisman_at_yahoo.com
Date: 02/22/05
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Date: 22 Feb 2005 15:18:48 -0800
derdrittemann2...@yahoo.com wrote:
> a_weisman@yahoo.com wrote:
>
>
> > "Funny thing--before I read your post I mentioned the EIS thing as
> > providing a "cultural bias" in his views.
> >
> > However, I don't agree that we need to focus on their intentions. I
> > think we need to focus on the results, and the flaws in their
work".
>
> Yes, echo. But an important thing to keep in the back of your
mind...in
> the right compartment.
My mind is a fairly cluttered place. :-)
> And...I would suggest that the appropriate thing to do is to assume
the
> most benign interpretation of motivation until some EVIDENCE suggests
> otherwise...just the opposite of what most of Lymeland seems to want
to
> do with Steere.
Yes I agree. It sure would be nice to see Steere et al get their
comeuppance in THIS lifetime and be held legally and morally
responsible for the damage they have wrought.
> Or...here's a whacky idea...hear him out. Ask him the question and
> listen to his answer before assuming the worst. (I know how insane
that
> sounds).
I don't think it sounds insane at all.
I think it would be great to have a real debate and discussion with our
side and their side.
I just don't think it is going to happen.
AND we'd need people who were balanced and well informed to represent
us.
I think one major failing in Lyme "activism" has been the failure to
engage with the "other side." I don't see how the "sensible pursuit of
answers" is going to occur without some real dialogue.
Speaking of which, where the heck is greatcod once we've all apparently
agreed to some real dialogue here?
> >" For example, comparing the treatment of those "outliers" (to
borrow
> a
> > term from Greg Gerber) who don't fit the rigid model to the
treatment
> > of "outliers" when it comes to other diseases, I think is useful.
> >
> > I think when one looks at things like the 5% analysis and computes
> that
> > into the numbers of people affected, one begins to realize the
> carnage
> > being caused by an intellectual rigidity which is entirely
> > inappropriate for medicine and is different from how medicine
> > approaches most diseases".
>
> If you are referring to Greg's calculus for suggesting the numbers of
> "chronics"...I have told him previously that it is my belief that his
> "calculus" is based on a faulty assumption...and I reject it. Wishful
> thinking. We have agreed to disagree on that.
I don't remember his calculus. Here's what I'm talking about, which I
posted on this thread:
>>From a recent post of mine:
"EVEN IF IT WERE "RARE" so what? Does that mean that a patient who has
that presentation can NOT be a Lyme patient? What is rare? If it
happens to 5% of people, well that is 5 of 100, 50 of 1000, 500 of
10,000, 5000 of 100,000, 10,000 of 200,000.
And if one accepts that there are now 25000 or so CDC cases, that means
that we'd see 1250 cases a year--if one accepts that the CDC figures
are only 10% of CDC qualified cases, it would be 12,500 cases a year,
if one accepts that CDC undercounts many lyme cases and maybe there are
twice as many (after all surveillance excludes definite cases, is not
for diagnosis, and there is underreporting by a factor of ten according
to the CDC and it might even be 15 or 20 times underreported) and there
is 500,000 cases a year one would see 25,000 cases a year of a RARE
manifestation!
"But many many many patients are NOT diagnosed early or treated early.
Even if it were only 10% that means a LOT of patients are not
succesfully treated:
25,000 CDC qualified cases a year, 10%=2500
250,000 CDC qualified cases using the CDC admission to reporting of
only 10% of qualifiable cases, 10%=25000 a year
500,000 (using a formula calculating CDC qualifiable cases, those the
CDC excludes, misdiagnosis and I think that might be conservative), 10%
=50,000 annually--that is EVERY YEAR!
So that is actually a LOT of people who are getting screwed even using
steere's 90% success rate figure, and I think that is pretty generous
to him and ignores his own higher treatment failures and accepts his
self servingly generous and short term follow up based definition of
"success" in treatment. "
> > Legally speaking, if I rememebr correctly...it is possible in some
> > > jurisdictions, to maintain actions for fraudulent
misrepresentation
> > > based, not only on deliberate, intentional misrepresentation, but
> > > also...
> > >
> > > ...for misrepresentations by omission. That is, where the speaker
> had
> > a
> > > duty to disclose an additional fact...without which his
statements
> > > would be misleading...and chose not to do so.
> >
> > "That might be true. However, I think that courts are very hesitant
> to
> > apply such theories when it comes to medical malpractice--so if the
> > gist of the issue is medical malpractice, theories in fraud and
> > contract are typically rejected and one is required to prove the
> > deviation in standard of care rather than other theories. And
usually
> > one is not permitted to prove that the standard of care sucks. It
is
> a
> > negligence theory and the "reasonable doctor" is the standard. So
one
> > must prove the doctor didn't act reasonably, reasonableness being
> > measured against the standard of care. Having created the standard
of
> > care, as abysmal as it is, it is hard to prove they've deviated
from
> > it. And they've made it worse and worse".
>
> It is true. But I'm NOT talking about med/mal here...but suggesting
> that the conduct complained of (the misleading omission) is
> "reprehensible" conduct...to the point that it is actionable under
the
> law.
Yes I understand. But legally speaking I think it is an attempt to
bring a med/mal claim under the guise of a different cause of action
when one can't succeed on the med mal claim. And generally the courts
have not permnitted this.
For example, I know of a jurisdiction where statutorily doctors are
considered NOT warrantors of cure. Attempts to bring breach of warranty
claims have been rejected, even where doctors expressly warranted
cures.
So I think the courts would see that the essence of this claim was
professional malpractice and require one to prove that tort on its own
terms.
Yes it would be clever to try to bring the claim which one might not
succeed on as a med mal claim qua med mal claim by calling it something
different. And in some jurisdictions the courts might permit it. At
that point, many med mal insurers wouldn't cover the doctor either so
one would have to find doctors who weren't judgment proof.
On the other hand, if it were brought in the guise of some other cause
of action, the insurers wouldn't pay defense costs either.
> As I believe we have discussed previously...there is an intervening
> actor between Steere's advice and the patient...and that is the
> treating physician.
Yes. I think they need to be held responsible for their own decisions.
However, it is unfortunately a defense to say that they abided by the
standard of care (which Steere set).
I don't think it would be possible for Steere to be held responsible
for setting a bad standard of care simply because that would mean that
he was responsible for other people agreeing with his bad ideas and he
certainly is entitled to have bad ideas, it is the responsiblity of
those who agree and act upon them if they do so negligently. Again, it
is unfortunate that plaintiffs aren't generally permitted to show that
the standard of care itself is abysmal or hold those responsible for
that, on the basis of omission or comission responsible--however to
allow this would be threatening to our notions of academic and
intellectual freedom. It goes back to the marketplace of ideas--bad
ones are supposed to not sell. When they do, we don't eliminate the
marketplace. We hope that the market will eventually correct for the
bad ideas. Yes I think that the medical marketplace of ideas is far
from perfect and that it is far from the freest market out there. But
there's always a balancing act between freedom and responsibility.
> Now...if an examining physician was sued, successfully for
malpractice,
> and turned around and sued Steere for intentionally
> misrepresnting...exposing him to liability? Probably not.
Again I think that our notions of academic and intellectual freedom and
the first amendment would work to eliminate liability here--legally but
not morally or intellectually.
It is ironic that the absymal standard of care actually works to the
defense of such doctors.
> But...one thing that everyone who wants to blame Steere for
> distributing bad advice seems to forget is that somehow theye managed
> to learn what the straight s--t is in regard to the diagnostic
issues.
>
> And if they can figure it out (the patient) then surely we should
> expect that a physician can also.
I don't think it is too much to expect, but I think there are legal
problems with liability.
Listen I think that the idea that supermarkets started using bar code
scanners twenty years ago and hospitals have only started using them to
help prevent medication errors is astounding.
I think that the idea that the least experienced medical personnel
(residents and interns) are forced to provide the bulk of medical care,
in sleep deprived states in which we wouldn't let a trucker drive a
truck or an engineer drive a train and ALL the evidence on the effect
of fatigue in causing dramatically increased error rates, is astounding
and abysmal. ANd those sleep deprived students are more scared of
waking up attendings than killing patients!
But that is medicine for you.
> > > I AM NOT saying that Steere can be sued on this basis. I doubt
it.
> >
> > I agree. I doubt it.
> >
> > > What I am saying is that the failure to add additional
information
> to
> > > qualify or simply make a statement NOT misleading IS recognized
> > within
> > > the law as "undesireable" conduct and is punishable as such.
> >
> > "Well yes I think that knowing deliberate ommissions are appalling.
I
> > think that do no harm applies to over and under diagnosis.
> Misdiagnosis
> > either way causes LOTS of problems and a doctor can do REAL HARM by
> > action AND/OR inaction".
>
> Echo. And I am trying to make a rather difficult point here...that is
> that this sort of omission is morally reprehensible...if it is
> intentional.
Absolutely echo and agree.
> I was citing the legal issues only by way of analogy.
I get that. I still think that legally they're difficult arguments to
make. Morally, ehtically, medically, scientifically one would hope that
responsibility is assessed appropriately and that more important change
comes about sooner rather than later.
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