Dr. Wakefield and the Problem of Pseudo-Courts
By Kent Heckenlively, Esq
The first thing we do, let's kill all the lawyers. - Henry VI - Shakespeare
This line even got a laugh in Shakespeare's time. But it's important to understand the context. Henry VI was planning a revolution and didn't want the lawyers to slow him down. If knocking off the lawyers is the sign of a planned revolution, then the pharmaceutical industry has done a pretty good job so far.
Dr. Wakefield's complaint against the British Medical Journal, Brian Deer, and Fiona Godlee for defamation can be best understood as the first stirrings of a counter-revolution.
Let me back up and explain.
I think it's incredibly difficult to create a legal system which can successfully resist the various pressures put upon it. That's why the creators of the Anglo-American justice system put such a premium on a system of checks and balances, instituted an advocacy system, and established rules of discovery. They expected people to be flawed. They expected undue pressures and prejudices to be placed upon the proceedings at some point. They anticipated that people's opinions would inevitably color their judgments and tried to make adjustments. They understood the truth was most likely to come out when both sides were able to present their strongest case. You get to confront your accusers. You get to put on your best witnesses. The other side needs to divulge their darkest secrets.
Only when all things are revealed and thoroughly debated can one attempt to deliver justice. It may not be the best system, just better than all the others which had been tried.
The form of the court and the various protections offered to both sides are the best defense against injustice and the protection of society.
Now consider the creation of the Vaccine Court in our country. In the 1980s the vaccine manufacturers were screaming that they would be run out of business by the legal claims of parents of vaccine-injured children when the schedule contained 10 vaccine doses. What was the response? Study the problems of vaccine-injured children? Make the vaccine schedule safer? No, create a special Vaccine Court which would essentially prevent laywers from being lawyers, then add at least 26 more vaccine doses to the schedule.
Imagine a typical products liability case, let's say a wood-chipper which has unfortunately hacked off a couple of your client's fingers. As the lawyer you get to ask the company for all the complaints they've received in which their wood-chipper has chopped off a customer's fingers and they need to provide you with those records. Now, the number of times the wood-chipper has chopped off other people's fingers may not determine whether they are responsible for your client's accident, but it's a good place to start. This is the way things go in pretty much every civil court in the country.
But that's not the way it is in Vaccine Court.
On the question of whether the MMR vaccine was linked to the development of autism the attorneys in the case asked for all complaints to the Vaccine Adverse Reporting System (a government-supported database) in which parents alleged that autism developed after the MMR shot. The request was denied. The rules in vaccine court are much different. It's a pseudo-court, lacking the protections which would be found in any civil court in the country.
And what about the proceedings in the General Medical Council against Dr. Wakefield?
The issue which seems to generate the most discussion about Dr. Wakefield is whether he accurately described the histories of the children as related to him by the parents, the medical results themselves, and whether or not he altered data. Isn't that what we all really want to know? Did these children really develop autism after the MMR shot and can we find evidence of the measles-strain of the virus persisting in their gut for years after it should have cleared their system? If that's what we really want to know it seems you'd want the parents and medical experts to testify about these issues. You'd also want to question the personnel of the lab which performed the tests. And while you're at it, how about some of the other doctors who reviewed the gut biopsies? That's what would happen in a normal trial.
But the proceedings of the General Medical Council weren't those of a normal trial. They were those of a pseudo-court. They didn't even want to hear from the parents, inspect the relevant medical records or question the lab personnel who performed the tests. Whose interests were served by denying the parents a voice? How can you judge the science if you don't talk to the scientists who did the work?
With this latest action Dr. Wakefield has put these issues back in the regular court system. Long live the lawyers!
Kent Heckenlively is a Contributing Editor to Age of Autism
Kent; Thank you for this very good article. I loved your opening line - to start a revolution - kill all the lawyers. I did not know that, and they have my respect! Junk lawsuits, indeed!
Posted by: Benedetta | January 14, 2012 at 09:55 PM
I very much enjoyed this article and all that commented on this. The HBO special referred above all should watch. See how the rich and powerful only let certain info out so the "little people" will not question what they are told so big business keeps their share holders happy and they do not have to cut their bonuses nor have to share any of their illgotten riches with those who have been hurt and have suffered and/or continue to suffer. Our kids are suffering and the big businesses who are in control of the vaccines get to be protected against what they should be accountable for.
Posted by: Trina Aurin | January 13, 2012 at 10:31 PM
This is interesting, I wonder how it fits into Andy Wakefield's story:
"UK research is plagued with misconduct, according to a survey of 2,700 scientists by the British Medical Journal. It found that 13 per cent had first-hand knowledge of UK-based researchers deliberately altering or fabricating data, while 6 per cent were aware of misconduct that had not been properly investigated."...
"Fiona Godlee, BMJ editor, said the survey showed “that there is a substantial number of cases and that UK institutions are failing to investigate adequately, if at all."
"The BMJ has been told of junior academics being advised to keep concerns to themselves to protect their careers, being bullied into not publishing their findings, or having their contracts terminated when they spoke out," she added.
http://www.ft.com/cms/s/2/bc6f7204-3d1f-11e1-8129-00144feabdc0.html?ftcamp=rss&ftcamp=crm/email/2012113/nbe/ScienceEnvironment/product#axzz1jKLvVzQ1
Surprisingly, the Financial Times doesn't mention Dr Wakefield. If the BMJ were highlighting research fraud wouldn't he be their crown jewel? Could this be the first step of the walkback? This could be an attempt to show they weren't singling Andy Wakefield out, but their articles was simply part of an overall investigation of UK medical research.
Posted by: Jeff C | January 13, 2012 at 07:58 PM
Thank you Bob Moffitt for keeping an open mind re tort reform. Re the McDonald's burning coffee, the woman's compensation was greatly reduced: on appeal by the corporate defendant, her compensation was reduced to cover her expenses.
The public has been manipulated for years over public interest litigation. We should stop calling these lawsuits "frivolous" as they are typically in the public interest.
Go find an attorney who will put his/her money down to take on "frivolous" litigation.
Posted by: Rosycurler | January 13, 2012 at 05:59 PM
GH
This is what I found. Day 217 p. 24:
"The Panel concluded that Prof Walker-Smith's extensive failures in relation into the clinical care of particularly vulnerable children, his non-compliance with ethical research requirements, and the irresponsible and misleading reporting of research findings potentially having such major implications for public health, did amount conduct fundamentally incompatible with his remaining a registered medical practitioner."
It is more borderline as a comment than struck me at the time: it doesn't mention policy but it is there by implication ie because of our view of the importance of this health initiative the consequences are more serious than if it was something else.
Of course, the findings are junk. Perhaps they will put our children in the care of Evan Harris and Brian Deer from now on (the guys who really understand!)
Posted by: John Stone | January 13, 2012 at 02:17 PM
'Dr Surendra Kumar (GSK shareholder) pronounced that Dr Wakefield and Prof Walker-Smith should endure the greatest sanction because their work had questioned public health policy.'
John, if you can find the exact quote I would love to see it, it sounds like a great example of how Orwellian vaccine policy has become and it might be useful at some point in the future.
Posted by: GH | January 13, 2012 at 01:26 PM
Well done Kent,
May I guess you meant "10 vaccine doses" instead of '10 vaccines' - and "26 more vaccine doses" instead of '26 more vaccines.'
Apologies for slightly quibbling but any single dose can wreak havoc. Here's today's U.S. Schedule when adding in the mother's flu shot and two flu shots to 6-7 month old babies bringing the total vaccine doses up to 40+ by 18 months, and even higher as allowed by pediatricians wanting to speed up his/her iatrogenic assembly line. As usual I offer the Chart so people can see the horror perhaps for the first time.
http://www.cdc.gov/vaccines/recs/schedules/downloads/child/0-6yrs-schedule-pr.pdf
Posted by: david burd | January 13, 2012 at 10:36 AM
HBO recently aired a documentary called "Hot Coffee" which examined the notorious award of millions of dollars to a woman who had spilled a cup of McDonald's coffee onto her lap. This case is often cited as the prime example of a "frivolous lawsuit" by politicians seeking "tort reform".
However, this documentary showed there was nothing "frivolous" about this woman's severe burn injuries .. and .. her case was won when her lawyers .. through the laws of discovery .. learned that McDonald's had received numerous complaints of people injured by the extraordinarily hot coffee they served .. complaints that McDonald's simply ignored.
Prior to this documentary .. I supported "tort reform" to bring an end to "frivolous lawsuits" .. however .. I now realize that I did not know the full facts of the woman's injuries or McDonald's negligence. Now that I know those facts .. I believe this woman deserved every penny she was awarded for the pain and suffering she endured.
If I am not mistaken .. one of the major "tort reforms" being sought is to curtail the "discovery process" so that information .. such as prior complaints .. can be denied to the victim's lawyers.
That would be a disaster for anyone seeking justice from a major corporation for injuries they suffered....
Posted by: Bob Moffitt | January 13, 2012 at 07:07 AM
Fine article Kent, but I have one other thought which is that though the principle of compensating people for medical injury (or any other kind) is essential in a civil society, there is an even more fundamental principle that sick children (or anyone) should be able to have the causes of their illness investigated without fear or favour. I remember the gruesome final day of the GMC hearing when panel chairman Dr Surendra Kumar (GSK shareholder) pronounced that Dr Wakefield and Prof Walker-Smith should endure the greatest sanction because their work had questioned public health policy. Of course, in a properly ordered society this should not have counted at all.
Incidentally, everyone can contribute to Andrew Wakefield's justice fund here:
http://www.drwakefieldjusticefund.org/index.php?option=com_content&view=article&id=88&Itemid=489
Posted by: John Stone | January 13, 2012 at 06:31 AM