The Volokh Conspiracy
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No Liability for Supposed Medical Journal Article Misrepresentation About How to Treat Lyme Disease
From the Fifth Circuit's decision Thursday in Torrey v. Infectious Diseases Soc'y of Am., written by Judge Kyle Duncan, joined by Judges Carl Stewart and Edith Jones; seems quite right to me:
A professional society specializing in the study and treatment of infectious diseases published guidelines in a peer-reviewed medical journal for treating Lyme disease. Individuals who claim to suffer from persistent Lyme disease symptoms sued the society, alleging the guidelines harmed them by casting doubt on how chronic Lyme disease should be treated and even whether the condition exists.
The district court dismissed the claims because it concluded that the statements at issue were non-actionable medical opinions, not factual assertions that could support a claim for fraudulent or negligent misrepresentation….
Plaintiffs are people who claim to suffer from chronic Lyme disease…. Many patients respond to short-term antibiotics, but some do not. This latter group is said by some to experience "post-Lyme disease syndrome," "posttreatment chronic Lyme disease," or "chronic Lyme disease."
The nature of chronic Lyme disease, and how to properly treat the condition, are matters of scientific dispute. Plaintiffs allege that some doctors, accepting the phenomenon's existence, recommend a holistic approach that may include long-term antibiotics. Others take a different view—like the Defendant here, the Infectious Diseases Society of America …, a professional society of doctors, scientists, and other healthcare professionals.
In 2006, IDSA published The Clinical Assessment, Treatment, and Prevention of Lyme Disease, Human Granulocytic Anaplasmosis, and Babesiosis: Clinical Practice Guidelines by the Infectious Diseases Society of America ("the Guidelines"). The Guidelines appeared in the peer-reviewed medical journal Clinical Infectious Diseases, one of IDSA's publications…. [T]hey express doubt about the causes, frequency, and even the existence of chronic Lyme disease. Moreover, the Guidelines do not recommend long-term antibiotic therapy for persons with persistent Lyme symptoms who have already received recommended treatments….
Plaintiffs sued on various theories, including "fraudulent and negligent misrepresentation," but the Court of Appeals held these theories were legally unsound:
Plaintiffs appear to agree that merely publishing a medical opinion—even a hotly debated one—in a peer-reviewed journal cannot give rise to a misrepresentation claim. Some of our sister circuits have adopted that proposition in analogous contexts, relying on both the First Amendment and commonsense observations about the nature of scientific debate…. Plaintiffs do not contest the principle and, in any event, cite no decision casting any doubt on it. {Accordingly, we need not determine when, if ever, the mere publication of a medical or other scientific opinion might form the basis for a cause of action for misrepresentation or any other tort.}
What Plaintiffs do argue, however, is that the district court failed to read the Guidelines' statements about chronic Lyme disease "in context." Had it done so, they contend, the court would have seen that the Guidelines do not merely report opinions but, rather, make factual assertions intended to influence doctors and insurance companies. These arguments miss the mark….
Plaintiffs … contend the Guidelines show that IDSA tried to "bury" or "explain away" treatment failures, which Plaintiffs interpret as the organization's "skepticism and overall disapproval of the studies relating to instances of chronic Lyme disease." This argument is unavailing. Contrary to Plaintiffs' view, the Guidelines do not become actionable factual representations merely because they disapprove of studies Plaintiffs prefer. As the district court concluded, "[a]t best, Plaintiffs cite other studies or statements that have reached different conclusions or formed different opinions than those expressed in the IDSA Guidelines." … "[D]ifferent schools of medicine have their followers, and many who believe in the one will pronounce the other wholly devoid of merit. But there is no precise standard by which to measure the claims of either …." ….
Plaintiffs next argue that the district court erred by relying on a Guidelines disclaimer which "contradicts" the Guidelines' opening sentence. We again disagree. The disclaimer states that the "[G]uidelines cannot always account for individual variation among patients," and that "the ultimate determination" to apply them should "be made by the physician in the light of each patient's individual circumstances." The Guidelines' introductory sentence states that they "are intended for use by health care providers who care for patients who either have these infections or may be at risk for them." We see no contradiction between the two statements. It is perfectly consistent (1) to offer general guidance to physicians about treating Lyme disease, while (2) recognizing the final decision should be left up to the treating physician given inevitable variation in individual cases. In any event, even if Plaintiffs were correct that some tension existed between the two statements (although we see none), they cite no authority that this amounts to an actionable misrepresentation.
As to specific statements in the Guidelines, Plaintiffs emphasize two. They take issue with IDSA's positions that (1) "[t]here is no convincing biological evidence for the existence of symptomatic chronic … infection among patients after receipt of recommended treatment regimens for Lyme disease," and (2) "[a]ntibiotic therapy has not proven to be useful and is not recommended for patients with chronic (>6 months) subjective symptoms after recommended treatment regimens for Lyme disease." On their face, however, these statements are medical opinions. In this context (a scientific debate over treatment options for persistent Lyme symptoms), to say that evidence is not "convincing" or that some treatment is "not recommended" is plainly to express a medical opinion. Just because Plaintiffs disagree with those opinions does not mean that IDSA is somehow liable because their doctors or insurance providers found the opinions persuasive.
Not only do Plaintiffs misread the Guidelines, but accepting their arguments would risk putting us at odds with other circuits. For instance, in the Second Circuit's ONY case, the plaintiff claimed an article in a peer-reviewed medical journal made false statements about the effectiveness of treatments to help lung function in premature infants. The Second Circuit recognized that scientific discourse "poses several problems for the fact-opinion paradigm of First Amendment jurisprudence." On the one hand, "[m]ost conclusions contained in a scientific journal article are, in principle, capable of verification or refutation by means of objective proof." On the other hand, "it is the essence of the scientific method that the conclusions of empirical research are tentative and subject to revision, because they represent inferences about the nature of reality based on the results of experimentation and observation." Accordingly, the court concluded that the statements at issue were "more closely akin to matters of opinion, and [were] so understood by the relevant scientific communities." It therefore held that "the contents of the article [were] non-actionable scientific conclusions."
Similarly, the Third Circuit's Pacira case involved a dispute over the efficacy of an anesthetic to control post-surgical pain. The manufacturer plaintiff sued defendants for trade libel for publishing statements in a medical journal criticizing the anesthetic. Citing ONY, the Third Circuit examined the content of the publication, the verifiability of the assertions, and the context in which they were written. The court concluded that a "fair and natural reading of these statements shows that these are nonactionable subjective expressions." …
In sum, the district court did not err in holding that IDSA's Guidelines statements about chronic Lyme disease constitute nonactionable medical opinions.
{Alternatively, Plaintiffs argue that—even if the Guidelines are nonactionable medical opinions—they can still sue for misrepresentation because IDSA knew the opinions were false. We need not address this argument because, as IDSA points out, Plaintiffs did not raise it in the district court. Plaintiffs' reply brief does not even attempt to argue to the contrary. Accordingly, the argument is forfeited.}
Alvin Bertram Dunn of Pillsbury Winthrop Shaw Pittman, L.L.P. represents defendant.
