Almost every day seems to bring a new scare headline about bird flu, e.g. “Governor issues disaster declaration as new avian flu outbreak detected in Weld County” (Colorado Public Radio News).  [1]

Below the headline, the articles typically warn that animal-to-human transmission is possible, and “mutations” of bird flu may occur in future. [2]

However, review of the CDC website on bird flu describes that risk to the public from bird flu remains “very low” and describes (as of this writing) only four cases of bird flu in humans having been identified in the entire United States, resulting in “mild to moderate” illness in the individuals affected (typically chicken farmers or ranchers with direct animal contact). [3]  Yet the headlines seem to imply that we should be in a state of panic:

—  “Fourth human case of bird flu confirmed as experts alarm of potential outbreak” (Uinterview on MSN, 7/6/24)
—  “Bird flu vax, surveillance planned amid fears of deadly spring outbreak” (Toowoomba Chronicle 7 9 24)
—  “Why increased testing is critical for the bird flu” (Forbes 7/7/24)

Yet reading through the articles, evidence of imminent or likely danger to humans seems lacking.  At most, the articles (such as the Forbes piece) simply describe that “the virus could potentially mutate” which “could potentially lead to a pandemic.”

I’m not a virologist. Or a chicken farmer.  So I don’t claim to be a scientific expert in bird flu. However, I have spent decades in medical law. I can read the published studies and reputable websites from CDC, Mayo clinic and the like. And I’ve become attuned to the language of scientific evidence.  So I can say with some claim of experience that in the medical-legal world, to say something is “possible” is the weakest possible claim of proof.

In many Courts, an expert witness is not even permitted to opine that something is simply “possible” –unless they claim to have proof to a “reasonable degree of scientific probability” or similar level of evidence.

Yet according to what I’ve seen (CDC, Mayo, Cleveland Clinic websites and published articles) I’ve yet to see any evidence (above pure “possibility”) that bird flu is likely to “mutate” to some form of illness that will be both (a) widespread and (b) a serious/life threatening illness among humans.

One might, reasonably also take into account the length of time farmers have been in large-scale contact with domesticated fowl and cattle (many hundreds if not thousands of years). One might even conclude (statistically/historically) that a naturally- occurring animal-to-human transmission of avian flu, representing a widespread and deadly illness to humans (as opposed to affecting a few, individual farmers with heavy animal contact) would appear to be a relatively rare and unlikely event.

So, how can one explain a seeming disproportion between the actual (or likely) degree of threat to humans posed by avian flu, and headlines we’re seeing so much lately, that seem to imply an avian flu  “pandemic” is imminent?

Perhaps another recent headline might help to explain:  “Bird flu vaccine funds
awarded to Moderna amid multistate outbreak” [4] Apparently Moderna is now to receive a $176 Million grant from Health and Human services to develop human, mRNA vaccines against bird flu.

The phrase “follow the money” was made famous during the Watergate scandal (many years ago) though has passed into the lexicon as a sometimes useful tool, to help explain something that might not otherwise make sense.

Again, I’m not an avian flu expert.  And, in the scheme of public health spending, $176 Million may be a relatively modest sum for even a low probability, potentially serious public health event.  However, looking at the historical and current medical evidence of human transmission of bird flu to date (a generally rare, generally mild illness apart from individual farmers working directly with animals) it doesn’t seem that panic about “the next pandemic” from bird flu appears warranted at this point.

–Laurence M. Deutsch

Harvard’s President recently resigned amidst allegations that she’d plagiarized dozens of her academic articles. Some have suggested this controversy was a “one off” or due solely to “politics.” But in January this year, the Harvard affiliate Dana Farber Cancer Center announced its retracting six major cancer studies, and correcting 31 others, due to images and tables that appear to have been copied from other studies (spotted by AI programs).

The Dana Farber story is not just about reproducing images without attribution, but that data in the published study tables may not even support the study’s conclusions – calling into question the integrity of the study authors and the validity of study conclusions.

Harvard is certainly not alone. Purdue University was recently found to have falsified data used in breast cancer research by the US Office of Research Integrity. Following that finding, it reached a settlement to repay federal grant money.

Duke University recently paid a $112 million penalty for submitting years of admittedly falsified data on lung function, which its researchers had used to obtain millions in grant funding.

It appears the incidence of scientific fraud is not only increasing but increasing exponentially. The prestigious science publication Nature reviewed the publication landscape and found that in 2013 there were approximately 1,000 scientific article retractions. This grew to over 4000 in 2022 to apparently more than 10,000 in 2023.

Implications of falsified science data go well beyond whether an institution or group of researchers dishonestly gained funding or publication credit. Rather, it appears that the validity of many studies, and therefore the state of medical knowledge, may now be corrupted by a not-insignificant number of invalid studies, whose results were massaged or dishonestly presented, now resulting in an increased portion of our body of medical “science” not actually supported by the scientific data.

Ironically, Nature was itself at the center of what many believe was a manipulation of science when it published “Proximal Origin of SARS-CoV-2” in March 2020. That article, authored by Kristian Anderson and others allegedly “debunked” the “conspiracy theory” that SARS-CoV-2 (later better known as Covid 19) originated from a virus manipulated in a Wuhan lab.

The article’s conclusion was definitive: “Our analyses clearly show that SARS-CoV-2 is not a laboratory construct or a purposefully manipulated virus.”

But in emails later obtained through Freedom of Information requests, the “Proximal Origins” lead author Kristian Anderson had significant doubts about a “natural” origin of Covid in emails he sent to NIAID Director Anthony Fauci about a month before publishing his paper. As stated in Dr. Anderson’s emails:

“The unusual features of the virus make up a really small part of the genome (<0.1%) so one has to look really closely at all the sequences to see that some of the features (potentially) look engineered…. I should mention that after discussions earlier today, Eddie, Bob, Mike and myself all find the genome inconsistent with expectations from evolutionary theory. But we have to look at this much more closely and there are still further analyses to be done, so those opinions could still change.”

But after further exchanges among high-level officials of the US and UK medical agencies, and whether a finding of a lab-origin could impede international scientific cooperation, Dr. Anderson’s group shifted its mission to “to disprove any type of lab theory.”

The “Proximal Origin” paper would shift the debate for the next two years. It was used to brand many scientists questioning a natural origin theory of Covid “conspiracy theorists” and help marginalize heterodox theories about Covid that would later become either commonplace or generally accepted. Now of course, many scientists favor the lab leak origin of Covid. A lab origin is now the “official” position of many government intelligence agencies.

Dr. Anderson never explained how he went from being more convinced that the genome of Covid was “unlikely” the product of natural selection, to concluding the genome “clearly shows” a natural (non-lab) origin, either in his “Proximal Origins” article or elsewhere.

One can look at examples from Duke, Purdue, and Harvard as unrelated. One could say these have nothing to do with the many (increasing number of) scientific papers “retracted” for fraud in the past two years. One could also say these have nothing to do with the many reversals by leading medical and governmental institutions about Covid over the past few years: from whether it likely originated in a lab, to whether masking or “social distancing” was science-based, to the rationale for vaccine mandates if a vaccine does not stop transmission, or the risks-versus-benefits of vaccinating young individuals, or individuals who had previously acquired natural immunity from Covid due to prior infection.

But is it coincidence that we hear so much lately about a “crisis of confidence” in our institutions, especially our medical institutions?

To speak of a “crisis of confidence” is obviously broad and imprecise. But I do think this expresses something real, and unsurprising. I think it’s hard to deny that the many, recent examples of scientific institutions engaging in what amounts to research fraud has not affected the public trust. Added to the many reversals in “generally accepted” science about Covid in the past two years, many have been taught an object lesson that all institutions run by humans, including institutional science and medicine, are ultimately subject to the same, potentially corrupting influences that can affect any other institution, e.g., money, power, ego, tribalism, etc.

This is not to propose any grand solutions. And if I thought I had any, I’m not in a position to implement them. I would only suggest as one who deals with juries in medical cases that we need to be sensitive that some of our jurors may now be more mistrustful about experts and the institutions (and business) of medicine than formerly. We need to be thoughtful in conversations with jurors: to appreciate the extent to which they may be coming from a place of mistrust, and why, and try to understand how this may interact with the facts and stories of our cases.

–Laurence M. Deutsch

1. [1] “Fresh Allegations of Plagiarism Unearthed In Official Academic Complaint Against Claudine Gay.” Washington Free Beacon, 12/18/23 (https://freebeacon.com/campus/fresh-allegations-of-plagiarism-unearthed-in-official-academic-complaint-against-claudine-gay/); “Harvard University President Claudine Gay Accused of 40 Acts of Plagiarism In New Complaint,” New York Post 12/20/23 ( https://nypost.com/2023/12/20/news/claudine-gay-accused-of-40-acts-of-plagiarism-in-new-complaint/)
2. [2] “Dana Farber Cancer Center to Retract or Fix Dozens of Studies,” Medical Xpress 1/23/24; “Top Harvard Cancer Researchers Accused of Scientific Fraud,” Ars Technical, 1/22/24 (https://arstechnica.com/science/2024/01/top-harvard-cancer-researchers-accused-of-scientific-fraud-37-studies-affected/)
3. [3] https://retractionwatch.com/2019/03/25/duke-settles-case-alleging-data-doctoring-for-112-5-million/; https://constantinecannon.com/whistleblower/duke-settles-scientific-research-fraud/
4. [4] “The situation has become appalling: fake scientific papers push research credibility to a crisis point” Guardian, 2/3/24 (https://www.theguardian.com/science/2024/feb/03/the-situation-has-become-appalling-fake-scientific-papers-push-research-credibility-to-crisis-point)
5. [5] https://www.nature.com/articles/S41591-020-0820-9
6. [6] “Unredacted NIH E-mails Show Efforts to Rule Out a Lab Origin of Covid,” The Nation 1/19/23 (https://www.thenation.com/article/society/nih-emails-origin-covid-lab-theory/)
7. [7] “Unredacted NIH E-mails,” op cit.
8. [8] https://www.cnn.com/2023/02/28/politics/wray-fbi-covid-origins-lab-china/index.html; https://www.dni.gov/files/ODNI/documents/assessments/Declassified-Assessment-on-COVID-19-Origins.pdf

Returning to the office for the New Year I decided to clean up my bulletinboard. My thinking was that if it’s buried under layers of paper, it’s probably irrelevant by now. If not, it may be something past due for attention.

I found one article of a type I periodically put there, that doesn’t seem to have immediate application but which could be filed under “there’s something here before you throw it away.” So, I had a few thoughts before throwing it away.

The article was published June 2023 in Radiology under the (clunky) title: “Two year Skeletal Effects of Sleeve Gastrectomy in Adolescents With Obesity Assessed by Quantitative CT and MR Spectroscopy.”[1] The article and its recommendations caught my attention, as it seems to encapsulate so much of what is wrong in current medical culture.

The researchers studied effects of weight loss surgery (sleeve gastrectomy) for obese adolescents. They found that their patients, from 13 to 24 years old, experienced an average drop in bone density of almost 12% two years after their surgeries.

The lead author noted this could cause real problems for his patients later in life (osteoporosis, fracture risk, etc.). Therefore, he recommended that bariatric surgeons (who perform these surgeries) should “increase awareness” of bone health. And, he recommended these surgeons engage in more “monitoring of bone mass” (periodic CT scans), use more post operative dietary supplements (vitamin D and calcium) and initiate medication therapy “when appropriate” to increase bone mass.

Statistics vary, but most authorities agree U.S. adolescent obesity has increased several fold in the past decades: from approximately 5% in the 1976-1980 to approximately 20% today.[2] This would imply that the majority of adolescent obesity is preventable by modified behavior.

Of course, all obesity is not 100% behavioral. It is currently thought to include a component of genetics, which is also not uniform among ethnic groups.[3] The ethnic makeup of the United States has also changed in the past decades, including higher proportions of Hispanic descent, thought to have a higher predisposition to obesity as compared to some other groups. However, other scholars feel that genetics or ethnicity may be over-emphasized, and even if
contributory, is likely not determinative for the vast majority of individuals in any group.[4]

But what impressed me most about the article was not the increased incidence of adolescent obesity, but just how far established medicine has strayed from the “First Do No Harm” paradigm that has been central to medical ethics for over 2000 years, and which is still (in some places) taught in American medical schools.

The ethics of “First Do No Harm” are indeed more complex than they may first appear. The translation from original Greek is not without controversy. One must also incorporate risks of non-action into any decision, etc. But the central idea of “First Do No Harm” still seems to follow from:

1. A healthy respect for the complexity of human physiology.
2. A small dose of intellectual humility (i.e. how little even current medicine understands it).
3. Appreciating that a major intervention in this complex process will likely produce secondary, tertiary, unknown, and unpredictable consequences (short and long-term)

Therefore, the basic idea of “First Do No Harm” still seems sound i.e. a wise physician does well to intervene less drastically rather than more, particularly when there is no compelling reason to do so.

So, on one level, it may have been surprising to surgeons in 2023 that reducing the stomach capacity of obese adolescents can result in significant bone loss down the road. But on another level, it should not have been surprising at all that drastically changing organ anatomy of an adolescent, even with good intentions, was bound to have unintended, potentially harmful effects that might only be discovered years later.

The most telling part of the article was the “take away” conclusion of the lead author: to the effect that surgeons doing sleeve-gastrostomies for obese 13-year-olds should do serial CTs of their patients (to monitor bone density) and intervene with medications to mitigate post-operative bone loss. That is, the lesson drawn seems to have been that when doing drastic (arguably unnecessary) surgeries, the surgical community needs to “up its game” on how to handle the complications.

One could fairly ask if a better conclusion should not have been a reminder to our medical community to revisit the “First Do No Harm” ethic. If U.S. adolescent obesity was 5% before 1980, and now hovers around 20%, then perhaps before engaging in organ-altering surgeries, the medical community should reflect upon whether non-medical behavior that reliably forestalled 95% of childhood obesity until recently could be emphasized, and behavioral issues exhausted, prior to engaging in surgery.

This is not “fat shaming” (sometimes invoked on this topic). Closer to my intent is “doctorshaming” or more accurately “institutional medicine shaming.” Our medical culture (and medical economy) makes it difficult for most primary care doctors or pediatricians to have the time for detailed engagement and follow up with their patients — if they even have a good knowledge of nutrition and exercise physiology themselves.

And, to be somewhat cynical, it is often more profitable for institutional medicine to engage in medical intervention, which requires additional treatment to manage its complications, than to engage in effective preventive care.

One could pull on many “threads” here, including the role of processed foods in obesity trends.[5] But I thought this piece of paper was worth thinking about before clearing it off the board for 2024.

–Laurence M. Deutsch

1. “Two year Skeletal Effects of Sleeve Gastrectomy in Adolescents With Obesity Assessed by Quantitative CT and MR Spectroscopy.” Huber et al, Radiology (6/13/23).
2. US Environmental Protection Agency (https://www.epa.gov/americaschildrenenvironment/health-obesity); Centers for Disease Control (https://www.cdc.gov/obesity/data/childhood.html)
3. “Obesity and genetics,” Golden et al, J Am Assoc Nurse Pract 2020 Jul; 32(7):493-4956. https://pubmed.ncbi.nlm.nih.gov/32658169/
4. See, e.g. “Genes are not destiny.” Harvard T.H. Chan School of Public Health.
   https://www.hsph.harvard.edu/obesity-prevention-source/obesity-causes/genes-and-obesity/
5. “Processed foods highly correlated with obesity epidemic in the U.S.”, GW School of Medicine and Health Sciences (1/5/20). https://smhs.gwu.edu/news/processed-foods-highly-correlated-obesity-epidemic-us

It has long been understood diabetes is often a function of lifestyle.

Lifestyle, Insulin-Resistance and Diabetes

A lifestyle of inactivity and a high sugar-high carbohydrate diet is known to cause “insulinresistance” in which the tissues of the body become less sensitive to the regulation of sugar through insulin. This condition over time, is thought to lead to chronic injury to the insulin producing cells and ultimately an inability of those cells to produce enough insulin, resulting in diabetes.

The opposite: high amounts of activity/exercise and a more balanced diet (less sugar and simple carbohydrates) has been thought to have opposite effect — avoiding insulin resistance and lowering the chances of an individual developing diabetes.

Lowering Pancreas Cancer Risk

A recent Canadian study suggests that avoiding “insulin resistance” may also be a key factor to lower risks of pancreas cancer. (See “Sources” below). The University of British Columbia (UBC) conducted groundbreaking research published in Cell Metabolism, shedding light on this connection. The study reveals that excess insulin can overstimulate pancreas cells responsible for producing digestive juices, triggering inflammation and pushing cells into a precancerous state. This inflammation is a critical step in the transformation from normal cells to cancerous ones.

Implications in Preventing Other Cancers

Beyond pancreatic cancer, high insulin levels are associated with several other types of cancer, including colorectal, breast, endometrial, liver, ovarian, and gastric cancers. This association underscores the importance of understanding insulin’s role in cancer progression and the potential benefits of controlling insulin levels.

Can You Avoid Insulin Resistance?

Avoiding insulin resistance produces enormous health benefits. This raises the question of how we can do that. The current state of medicine seems to focus on three basic approaches:

Conclusion

We hope our medical culture will heed the data and promote preventive medicine with as much enthusiasm as after-the-fact treatments for disease — especially when the means to prevent many diseases seem clearly demonstrated. That is a larger social question. But as individuals, it appears we also have a good deal of control. Ultimately, the daily choices we make can have as much effect on our health as what happens in the doctor’s office.

–Laurence M. Deutsch (12/6/23)

Sources:
Epoch Times (11/18/23).

The holidays can be a wonderful time to reconnect with faith, friends and family. It can also be a dangerous time to get sick.

Something called the “weekend effect” has been studied in medicine. This describes how patients admitted to hospitals on a weekend, as opposed to weekdays, have higher rates of death and other poor outcomes.¹

The Kim/PLoS One study looked at outcomes for stroke treatment in particular and concluded: “Weekend admission for … stroke was significantly associated with a higher mortality rate after adjusting for confounding factors. Further studies are required to understand factors contributing to mortality during weekend admission.”

In other words, although the reasons for higher weekend mortality need to be “studied further” it seems fairly well established that mortality (death) rates are in fact higher for the weekend admissions.

It is less studied whether specific holidays are more dangerous times to be a patient. But fromour experience, and for what we believe are many of the reasons accounting for the overall “weekend effect” we believe the answer is “yes.” Notably, the more experienced physicians (“Attendings”) tend to schedule their own vacations during the holidays, such as around Christmas, or between Christmas and New Year’s.

While hospitals are functioning during this time, the system becomes more reliant on “residents” (doctors-in-training) than at other times of the year. So, unless one thinks a doctor’s experience doesn’t improve outcomes, it would be hard not to conclude that diluting the experience of the medical team (during holidays) would not have the opposite effect.

Add to that the stresses on the healthcare system around the holidays (more alcohol and substance-related accidents, higher rates of holiday depression, etc) and most would conclude that arriving in a busy emergency room on Christmas Eve may well carry different (and higher) risks to the patient than arriving on a Tuesday afternoon during a non-holiday.

The importance of an advocate

We believe it’s always a good idea to have an “advocate” when going to a hospital –and that this may be particularly important around the holidays. Those with severe illness or in pain are generally least able to observe how they are being treated, or to do anything about it.

So, if you or a loved one require hospital care, especially during a major holiday, you would be well advised to have someone else capable go with them as an advocate.

What can an advocate do?

We would say that the first contribution of an “advocate” is to have a healthy level of awareness.

Among other things to consider, an advocate should ask whether the patient is being treated as promptly as seems reasonable, in light of their potential illness.

For example, severe chest pain or possible stroke symptoms should always be considered true emergencies, until proven otherwise. So, in either of these examples, a person should not be left sitting for a prolonged period “waiting for evaluation” or after an initial test “waiting for further tests.” This should be considered a dangerous situation, and warrant someone speaking up politely but firmly to ask for evaluation as soon as possible.

In addition to speed, the level of provider experience, relative to the problem, should also be considered. If your loved one has been seen by a very young “resident” (doctor in training) who seems uncertain of their surroundings, or can’t answer reasonable questions, then runs off and is not seen again, you may need to question whether their evaluation has been sufficient. Or
you may need to ask them (politely) in follow up if they’ve discussed their findings with a specialist or Attending.

Similarly backups in hospital systems can occur more frequently during weekends (or holidays) such as ability to get prompt Radiology studies or have an operating room available.

It’s not easy to be an “advocate” for yourself, or others. And, there are limits to what any patient (or advocate) can do to improve the level of care. But we consider that it’s healthy for any patient, especially around the holidays, to be aware of the potential “holiday effect.” Speaking up in a polite but serious way is sometimes necessary. In our opinion, it can make a real difference in the outcome of a medical event.

–Laurence M. Deutsch (12/6/23)

1. “Patients admitted on weekends have higher in-hospital mortality than those admitted on weekdays: Analysis of national inpatient sample” Manadan et al, Am. J of Medicine Open, June 2023. See also, “Weekend effect on 30-day mortality for ischemic and hemorrhagic stroke analyzed using severity indexand staffing level”. Kim et al, PLoS One, (June 22, 2023).

Reports of a severe pneumonia in Chinese children are gathering headlines.

Early reports indicate that most cases involve school aged children being hospitalized for respiratory illnesses, including pneumonia. To date, no new viruses have been identified as the culprit.

While pneumonia is of course a potentially very serious condition, our view is that this does not seem to represent the next “pandemic.” Notably there are not widespread reports of fatalities associated with these cases. In addition many knowledgeable infectious disease experts note that an “immune debt” hypothesis makes sense –which would appear to make this more likely to be problem relatively limited to China, and some other countries that had more severe Covid restrictions than the United States.

China had some of the most severe COVID-19 lockdown policies anywhere in the world. For 2+ years, or what amounts to a large portion of the lifetime of school aged children, most Chinese have been wearing masks restricted in public gatherings etc. This can produce an effect known as “immune debt” in which the individuals who have not been exposed to the normal run-of-the-mill viruses and bacteria for an extended period do not develop the normal full
range of immune responses that normally protect against disease.¹

China ended its period of severe lockdowns only in late 2022. This has been thought to create an “immune debt” particularly in children, who have not been exposed to the number and variety of “normal” respiratory viruses children would normally be exposed to, for what represents a large portion of their lifetimes. This means that large portions of Chinese citizens, particularly the young, will have to pay back this debt by being less protected against normal
respiratory viruses, now that lockdowns have been lifted.

This is the first fall season since the lifting of severe Chinese COVID restrictions. Almost all respiratory viruses are more prevalent, and more severe, in the fall and early winter. Therefore it makes medical sense that, after a period of lockdown as experienced in China, the expected “immune debt” in children would produce a rise in all types of respiratory illness among Chinese children this season.

Although information is still preliminary, and the Chinese are certainly not transparent, there are other reasons to avoid undue panic about this story. Notably it is generally true in respiratory illness that severe cases are typically clustered in the elderly as well as the young. Therefore, the fact that we are not getting reports of unusually large numbers of elderly suffering severe respiratory illness in China seems consistent with this not representing a new
and unusually dangerous respiratory virus. Rather if an “immune debt” effect is at play one would expect what seems to happening: children for whom the last two years incurred an “immune debt” by not building immunity to respiratory viruses generally, are now “paying it back” by becoming relatively more ill when exposed (for the first fall season) to the variety or “normal” respiratory illnesses.

Take Home Points:

One must be skeptical of all accounts coming from China. But at least for now we don’t see reason to panic: there are no reports of a new virus identified, or high mortality, or a corresponding wave of illness in the elderly.

Overall, the interplay of lockdowns, children and “immune debt” show that interactions between disease and public health policy are complex. School lockdowns here in the US are now understood to have caused severe, generational learning deficits in many children, hitting the disadvantaged particularly hard.² In addition, the current Chinese experience suggests that efforts to prevent exposure to one disease now, may sometimes lead to a “debt” that has to be repaid later, sometimes in the form of more severe illness from other causes.

–Laurence M. Deutsch (12/01/23)

1. https://arstechnica.com/health/2023/11/chinas-mystery-outbreak-likely-a-post-covid-surge-ofcommon-winter-germs/
2. “The pandemic has had devastating impacts on learning. What will it take to help students catch up?” https://www.brookings.edu/articles/the-pandemic-has-had-devastating-impacts-on-learning-what-willit-take-to-help-students-catch-up/

New York’s Appellate Court recently upheld a regulation (“Rule 2.13”) which would allow the Governor significant, additional power to quarantine New Yorkers in a declared “public health emergency.” ¹ Rule 2.13 was enacted in the wake of the Covid-19 Pandemic.

To some, Rule 2.13 is a necessary adaptation in light of our experience with Covid-19. To others, it represents government overreach, and would provide a dangerous tool giving essentially unlimited power to the State to quarantine (effectively incarcerate) any person or group of persons deemed a threat to “public health.”

Rule 2.13 was previously found unconstitutional, and overturned ² , in a July 8, 2022 decision by Justice Ploetz. Judge Ploetz found that the regulation violated the New York State Constitution, giving excessively broad, undefined powers to the State to incarcerate citizens, without trial, for undefined periods of time. His opinion also faulted the Rule for apparently giving broad powers to confine citizens without specifying means for individuals quarantined to appeal their confinement:

We would also note that one, notable feature of the Covid response was shutting downtheCourts. When Courts did (partially) re open, there were significant delays in all hearings. Therefore, if a person were forcibly quarantined Rule 2.13, it’s a fair question to ask whether, in such circumstances, a person would be likely to find a Court able to hear anappeal of their confinement on an expedited basis.

Judge Ploetz, in striking down Rule 2.13, also found the regulation impermissible in grantingexcessive discretion to authorities to quarantine, without requirement to showthat a personwas actually infected with an illness constituting a public health threat. ³

The New York Governor and Attorney General appealed that ruling. On November 17, 2023, the Appellate Court reversed Judge Ploetz, and has now allowed Rule 2.13 to stand.

The Appellate court did not, as the court below, discuss or decide whether the Rule would grant too much discretion or government power to “quarantine” (effectively incarcerate) individuals in the name of a public health emergency. Rather, the Appellate court issued a narrow, procedural ruling, that those who had brought suit to invalidate Rule 2.13 did not have legal “standing” so as to have brought the legal case.

“Standing” is a legal principle that a plaintiff in a lawsuit must have a real and tangible interest in order to bring a case. This is typically invoked to prevent people who have no real interest in a matter from suing others on the basis of hypothetical harms.

In this recent case, the “standing” doctrine was used by the Appellate court to find that the individuals who brought the case against Rule 2.13 (State legislators and associated public interest groups) lacked sufficient showing that they were likely to suffer a real or imminent harm from the Rule.

However, the Appellate court left open the issue of whether if the governor were ever to invoke broad public health emergency powers to quarantine individuals that affected persons could then bring a suit against the governor and regulation. As the Court stated:

However, inasmuch as …. there exists a large pool of potential challengers to the regulation who could assert a concrete and particularized harm [if Rule 2.13 were invoked], we conclude that this is not a case where to deny standing to these [petitioners] would insulate government action from judicial scrutiny.

Therefore, for now our Governor has theoretical legal authority to quarantine essentially any individual deemed a threat to public health under Rule 2:13. However, the courts have indicated that should the governor choose to invoke such authority, suit could be brought, and the Courts will review the actual exercise of that power in light of the circumstances actually obtaining at the time. This result is not satisfactory to many who feel that the “standing” doctrine was improperly used to allow a regulation to continue to exist that seems an extremely broad grant of authority to the Executive branch of the State to effectively “quarantine now, ask questions later” for any circumstance deemed a threat to “public health.”

After the recent court ruling, members of the New York State Legislature who had been named Plaintiffs in the suit, seeking to strike down Rule 2.13 as unconstitutional, issued a public statement: ⁴

We would note that use of “standing,” to dismiss a Constitutional challenge, has not been as strictly applied in other contexts. For example, concerning challenges to laws under the First Amendment, as infringing on free expression, Courts have often dispensed with the need for an individual to show “standing” in terms of imminent, personal harm if the law or regulation being challenged was unconstitutional “on its face” (plainly unconstitutional) or could be deemed to potentially “chill” (intimidate or discourage) otherwise lawful behavior.⁵

But as things stand, we have a rule on the books that theoretically gives the New York Governor (via Public Health Commissioner) broad authority to “quarantine” individuals if there is a declared “public health emergency.”

Does this mean “Quarantine Camps” are in New York’s future? It appears this will depend on a number of factors: whether the governor will choose to invoke these Rule 2.13 powers, whether a future legislative session limits them, the circumstances in which the Rule is invoked, and how the courts would react under the facts of a particular case of a quarantined individual. And it remains to be seen if the Appellate court ruling will be appealed to New York’s highest Court, the Court of Appeals.

In other words: only time will tell.

–Laurence M. Deutsch (11/24/23)

1. https://www.nycourts.gov/courts/ad4/Clerk/Decisions/2023/1117T1500/PDF/0722.pdf
2. New York’s initial court of general jurisdiction is called “New York State Supreme Court” — though it is not the
   appellate Court. Our Appellate Courts are known as the “Appellate Division.” And the next, and highest level of
   appeals Court in New York is the “Court of Appeals.”
3. See note 2 (“Supreme Court” in relation to “Appellate Division”).
4. https://www.nysenate.gov/newsroom/press-releases/2023/george-m-borrello/statementcongressman-mike-lawler-senator-george
5. See, e.g. Uzuegbunam v. Preczewski (U.S. Supreme Court,3/8/21): https://www.supremecourt.gov/opinions/20pdf/19-968_8nj9.pdf

It has been reported that a Pathologist at the prestigious Johns Hopkins Hospital has pressured colleagues to falsify reports, to protect a surgeon from charges of unnecessary surgery. ¹

The report cites sources who reportedly obtained their knowledge from a report by the national organization that reviews hospital accreditation (Joint Commission).

An unusual feature of the story is that the Pathologist (Jonathan Epstein MD) is marriedtothesurgeon (Hillary Epstein, M.D.) he was allegedly “running interference” to protect. This storyraises disturbing issues of whether a physician elevated personal relationships above patient safety –and violated fundamental medical ethics.

We have seen notes we believe were “massaged” to protect colleagues. But rarely (if ever) havewe seen such a direct relationship between the parties involved. So, while the specific circumstances alleged (if true) are unusual, we would say this story raises issues of importancetomany cases and patients. We would identify a few, key details from the story.

Key Take Aways:

1. Bullying Allegations: The heart of the controversy revolves around the Pathologist’s alleged intimidation tactics. Sources claim that he would bully peers and junior staff to agree with his wife’s diagnoses. This behavior raises numerous questions about the potential compromise of patient care and the overall work environment at the hospital.

2. Unnecessary Surgery: The most distressing single claim that the surgeon’s spouse unnecessarily removed a patient’s bladder. This would be removal of a major organ, with distressing implications for the patient’s quality of life. It was reported that the surgeon’s plan for surgery was disputed by others. One questions whether adequate systems were in place to confirm need for surgery –before irrevocable surgery took place.

3. Johns Hopkins Hospital’s Stance: As an internationally-recognized institution, Johns Hopkins is clearly conscious of the implications of this report: for its quality of care and reputation. It has, reportedly, launched an internal investigation to determine the truth behind these claims. The hospital states it has an “unwavering commitment” to maintaining patient care and safety.

4. Implications for the Involved Physicians: If these allegations are found true, the involved doctors could face dire professional repercussions, including potential legal actions and the revocation of medical licensure. If true (intentional deception in medical records) this may be one of the rare cases in which actual criminal liability might be applied in the context of medical care.

Final Thoughts: Doctors have tremendous responsibilities, including the responsibility not to place personal interests over patient safety. They have great power to help (or harm) depending how they exercise that responsibility.

The husband-wife relationship of the doctors in this reported case is unusual. That said, it is our belief that many doctors (particularly when practicing in the same hospital or practice) often regard each other as “colleagues” –and sometimes feel the desire to protect their colleagues against charges of malpractice. While a sense of loyalty among doctors is normal and often healthy, we are still mindful of our role to hold doctors to standards of good medicine.

This sometimes requires us to read notes of doctors with a healthy skepticism. Sometimes the notes are accurate and motivated solely by needs of the medical care. But sometimes, unfortunately, they seem to be influenced by a desire to protect the reputation of a colleague.

–Laurence M. Deutsch (11/17/23)

1. https://nypost.com/2023/10/23/news/johns-hopkins-doctor-allegedly-bullied-staff-to-match-his-wifesdiagnoses-improperly-removed-bladder-report/

Many of us are familiar with “learning loss” in children due to Covid interruptions in their education. But some in medicine believe that changes in medical school education since Covid have had the effect of “dumbing down” our medical profession –which may bode ill for the quality of future doctors.

In a recent piece, a microbiologist and long-time medical school instructor at a prominent Midwest medical school points to how medical school responses to Covid have changed how our future doctors are taught. ¹ Even though Covid is officially “over” as a declared public health emergency, ² it appears that many of these changes in medical school instruction are here to stay. Per Dr. Templeton’s piece, some notable features of the post-Covid medical school landscape include:

1. Increased Reliance on Virtual Instruction: Many medical schools and institutions have now transitioned to majority online/virtual learning. “Pluses” include flexibility and safety. But the author questions whether practical, hands-on experience is becoming too limited for our new doctors. An additional concern is a drop in what could be called “emotional IQ” i.e. whether lack of in-person interactions will impair the development of bedside manner, or even the ability to read non-verbal cues from patients that give clues to patient diagnosis.

2. Teaching to the Test: Along with remote instruction, there has been trend of individual institutions doing less to shape their own curricula, following a standardized curriculum, relying more on national, standardized tests. This has been in part a response to concerns to equalize the educational opportunities among medical students and enhance quality. It is important that there be some quality control over the curricula at individual schools. However, the author of the piece describes how excess reliance on standardized tests tends to promote a “teach to the test” mentality in medical school instruction, in which any deviation from what students “need to know for the test” is seen as a waste of time. This, in turn, can lead some instructors and students to feel disengaged from medicine as an intellectual or even spiritual pursuit, and lead to loss of love of learning. It is too easy, many point out, for a “teach to the test” program to devolve into a business transaction in which medical students are seen as “consumers” of medical degrees and the medical school simply a seller of credentials that will be needed for access to a potentially lucrative profession.

3. Overall: Less Flexible Thinking and Deemphasizing The Human Dimension?: Some educators believe that over reliance on remote instruction, use of standardized testing, and an overall view of medical education as mostly a career necessity (as opposed to an immersion in medical science) may be leading to a generation of doctors with less ability to think flexibly, or missing the human dimension of medicine.

What do we think of this? Our experience in the failures of medical care (as result in malpractice) tell us that patients need physicians who possess both the requisite knowledge of their field, and also know how to engage with individual patients and who retain a degree of flexibility in their thinking.

For example, we’ve seen too many cases of doctors just “going by the numbers” but not evaluating whether their patient seems anxious or alarmed about their condition (often a real and important marker for a serious illness that is not being addressed). Some malpractice cases arise when a doctor assumes that common symptoms must mean a common condition, and doesn’t leave open a space to consider if there is a less common but more serious illness at play. We have also seen cases involving doctors who, although possessing a good academic knowledge of their field, simply lacked the ability to communicate effectively with the patient, and so missed important history, or was unable to provide the patient important information about their treatment options.

This is not to suggest that doctors should act as Social Workers, or spend the majority of their time in emotional interactions with their patients. However, from our perspective in malpractice a doctor’s ability to take into account the human dimension of care, and sometimes “think outside the box” is central to being able to provide good quality medicine. This is particularly true in fields involving complex patient interaction such as in the Emergency Room, primary care, pediatrics, outpatient consultants –really most fields involving patient interactions outside of surgery.

So in the current environment, we might suggest a few things to help protect yourself (or your loved ones) when choosing a doctor, in addition to whether you think the doctor sounds knowledgeable:

• Ask about their hands-on clinical experience and training.
• Gauge their ability to communicate effectively and empathically.
• Seek reviews or feedback from previous patients whenever possible.

–Laurence M. Deutsch (10/30/23)

1. A Booming Market for Medical Credentials, Templeton, S. (Brownstone Institute, 10/7/23).
2. Department of Health and Human Services declaration of Public Health Emergency expired 5/11/23
   (HHS Fact Sheet: End of the Covid-19 Public Health Emergency, 5/9/23).

Parents in particular are concerned that their teenage children are spending too much time on social media. This is not just a values question. An increasing body of literature points to how severe mental health problems are associated with excessive social media time for teens. The promise of social media has been to connect people and sustain relationships. But the reality particularly for teens may be the opposite. Rates of teen depression have doubled (from 8 % to 16 %) between 2009 and 2019. This predates the COVID pandemic. So clearly there is a larger social trend going on.¹

Other metrics of social engagement for teens have also declined during this period. The rate of adolescents engaged in 60 minutes of sports participation daily has declined by almost 20% in the past decade. In a fairly shocking statistic, it is described that one in five 15 year-old girls spends more than seven hours a day on social media.

It is difficult to construct a scientific model to “prove” that social media is the primary culprit in these trends, but many psychologists are coming to this conclusion and many parents and individuals feel this is supported by their common sense. By definition, an hour spent on social media is an hour not spent doing something else such as taking up a sport, playing games with friends, engaging in religious observance or enjoying the outdoors. Therefore, it seems fairly obvious that spending six or seven hours a day on social media is going to severely restrict the amount of time for engagement in other activities.

There are some nuances. For example a 2018 study cite pointed to more depressive symptoms for “passive” use of social media as opposed to people who are more active in posting photographs and their own statements. ² This study involved adults, and even if applicable to teens, may only illustrate that active, as opposed to purely passive media use, may be the least bad alternative. But in the larger picture it appears the consensus of evidence (and common sense) points to the conclusion that too much social media in teens is not good for their development, physical or mental health.

Health and Wellness is a complicated matter. But for parents of teens, particularly at ages when they are still amenable to more parental influence, they may be well advised to limit screen time generally, and social media in particular if they want to reduce their child’s chances of significant depression and increase their opportunities for engagement in the real world.

–Laurence M. Deutsch (10/29/23)

1. Social Medial Fueling the Epidemic of Teenage Depression (Epoch Times, 10/8/23).
2. Passive and Active Social Media Use and Depressive Symptoms Among United States Adults (Escobar-Viera, et al., Cyberpsychology, Behavior and Social Networking, 7/1/18)