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 publ
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