Medical Quackery Meets Legal Quackery

If there's one thing I can't stand, it's lawsuits that are only filed to intimidate people into silence. Well, there are lots of things that I can't stand, actually, but this one sucks because, not only does it inconvenience the people who run web sites and news businesses, but it often deprives us, the readers, of useful information. Hiring lawyers is expensive, even when all you have to do is show up and ask the legal equivalent of "why are they wasting our time by filing this suit?"

A case in point is a suit recently filed by a medical laboratory that was accused of fulfilling requests for tests of dubious medical value. The lab, Doctor's Data, Inc. (DDI), was identified as having performed such a test by Steven Barrett, a retired psychiatrist according to his web bio, who runs a website named Quackwatch. The article begins:

Many patients are falsely told that their body has dangerously high levels of lead, mercury, or other heavy metals and should be "detoxified" to reduce these levels. This article explains how a urine test is used to defraud patients.

The report pictured to the right is a "urine toxic metals" test from Doctor's Data, a Chicago-based laboratory that caters to chelation therapists and other offbeat practitioners. The patient who gave it to me was told that his mercury and lead levels were high and should be reduced with EDTA chelation therapy.

How the "Urine Toxic Metals" Test Is Used to Defraud Patients

Chelation, incidentally, is a treatment where chemicals are introduced into a patient for the purpose of removing metals from his body. What that does is raise the level of mercury detected in the subject's urine:

In contrast, Doctor's Data uses reference values of less than 3 ug/g for mercury and 5 ug/g for lead. Standard laboratories that process non-provoked samples use much higher reference ranges [4,5], which means that if all other things were equal, Doctor's Data is far more likely than standard labs to report "elevated" levels. But that's not all. A disclaimer at the bottom of the above lab report states—in boldfaced type!—that "reference ranges are representative of a healthy population under non-challenge or nonprovoked conditions." In other words, they should not be applied to specimens that were obtained after provocation. Also note that the specimen was obtained over a 6-hour period, not the standard 24-hour period, which raised the reported level even higher.


How the "Urine Toxic Metals" Test Is Used to Defraud Patients

As befits a medical site, it goes on for some length about why this isn't a valid test. The upshot is that a patient who was given this test would assume he had unhealthy levels of mercury or other heavy metals in his body, when that was not really the case. Several states, according to Dr. Barrett, have found that using this form of test was worthy of censure or suspension of a doctor's license.

To make matters worse, one of the cures for excess heavy metal toxicity is chelation, which has some dangerous potential side effects:

Absolutely! All chelating agents have both minor and potentially life threatening side effects. They must be used under the supervision of a physician in a hospital setting.

Side effects of CaNa2-EDTA include: [kidney damage, loss of nutrient metals like iron and zinc, skin peeling]

Your online pharmacy: Chelation Therapy

It's not something you want to go through if you don't have to.

Orac, who writes the medical blog Respectful Insolence, takes up the tale from there:

[P]rovoked urine testing is a bogus test. According to Dr. Barrett, only does DDI use reference ranges for unprovoked urine tests, values that are utterly meaningless for provoked urine testing, but it uses reference ranges that are lower than what is commonly accepted by reputable laboratories and academic medical centers. This combination of factors virtually guarantees that it will produce many "positive" results for "elevated" mercury and other heavy metals in the urine, which practitioners can then apply dubious therapies, such as chelation therapy, to treat. Obviously DDI disputes this, but it doesn't provide any quality scientific data to do so, in my opinion. Consequently, in my view, what DDI does in essence is to do a technically sound measurement of mercury and heavy metals in the urine but on urine specimens collected using a completely inappropriate methodology that is not scientifically or medically valid.

More Legal Thuggery

As you might expect, DDI took action, which was to sue Dr. Barrett. They sent a cease and desist letter to Dr. Barrett which did not identify the specific things they found wrong with his article. The letter is reprinted in that link, by the way. Barrett requested that they identify the portions of the article that they found objectionable, and he would try to correct it if possible. They did not. As Orac explains:

This is typical. Note that [DDI lawyer Algis] Augustine doesn't actually list which specific parts of Dr. Barrett's article are incorrect, false, fraudulent or otherwise not truthful in the view of his client. Doctor's Data doesn't appear to be interested in accuracy, at least not if the letter from its lawyer is any indication. It appears far more interested in shutting up the opposition, of purging the Internet of material that can be used against it in the lawsuit it is facing in Texas. The rest of the text of the letter comes close to actually admitting this.

More Legal Thuggery

Which is what honks me off. As I said, lawyers are expensive. This kind of lawsuit, commonly referred to as strategic lawsuits against public participation or SLAPP suits, are discouraged in some states by making the losing party in such suits pay all court costs. But that's not true everywhere. According to John Pieret, an attorney who runs the site Thoughts In A Haystack, DDI's case has little merit. In his first reaction, he wrote:

As I explained in my post about the the suit by the doyen of the anti-vaccination movement, Barbara Loe Fisher, against Dr. Paul Offit, under US libel law, specific words must be alleged that make a factual claim about a person. Complaining that you are described as part of a class of people who are irrational, uneducated, unscientific, controlled by fear and/or a danger to public health is not enough to allege defamation under US law.

So, saying that someone is "catering" to loonies "nonstandard practitioners" is not good enough. Not only is that not a factual claim, but no reasonable person could interpret that as anything other than a statement of opinion, which is fully protected speech under the First Amendment. As I pointed out before, even calling someone a "pathological liar" is protected speech, so it is hard to see how calling someone a 'caterer' could rise to the level of defamation.

This Could Take Awhile

In a later article, he added:

The Doctor's Data, Inc. (DDI) suit against Dr. Stephen J. Barrett and his excellent resources Quackwatch and The National Council Against Health Fraud is a piece of work. It's not loony-tunes, like the Institute for Creation Research's lawsuit against the Texas Higher Education Coordinating Board. In some ways, it is much worse. It is a professionally drafted complaint that throws plenty of s**t against the wall in hopes that something might stick. It is nothing but (a lot of) smoke and mirrors in furtherance of an obvious SLAPP suit.

The DDI DDIdn't

It appears that John hasn't quite gotten all the way through the complaint yet, so he may have additional thoughts. I doubt, though, that this basic opinion will change.

Which means that there's a website that needs help. Quackwatch provides a valuable service, which is to warn us against the sort of quackery that this lab seems to be enabling. Letting miscreants intimidate expert bloggers into silence will only make it that much harder to get honest information.

So, if you can, please drop a bit of change at Quackwatch's contributions page.

UPDATE: John Pieret was kind enough to add this in a comment:

Just so you know, I've been through all the allegations of fact and I don't see any viable actions for libel. But the plaintiff has included claims for "restraint of trade" under Federal law, "trademark dilution," "consumer fraud" and "deceptive trade practices" under Illinois law, "tortious interference with contracts," "fraud" and "civil conspiracy." None of those should survive a determination that Barrett was exercising his freedom of speech but they introduce nuances that I'm not yet willing to pontificate on.

Medical Quackery Meets Legal Quackery: Comment #1

Thanks for that update, John. As a non-lawyer, it's hard for me to believe they'd have much of a case with any of that, but the courts seem to make a habit of surprising me.

Medicine Wheel Teaching a hoax

This was posted on Indianz.com and bears repeating:

Medicine Wheel Teaching a hoax

Andrea Bear Nicholas
Chair in Native Studies
St. Thomas University
Fredericton, NB, Canada
April 24, 2007

To Mi'kmaq, Maliseet, and Passamaquoddy Peoples of the Maritimes:

It has been repeatedly brought to my attention how completely our people have been fooled into believing that the viagra wheel is somehow part of our traditions, especially our spirituality. While I had long had concerns about its origins, what woke me to the hoax was an event that occurred several years ago at a national conference of Aboriginal women scholars. It occurred when I raised the concern and prefaced my remarks with an apology to those whose tradition it might have been. Immediately a chorus went up with virtually everyone in the room saying loudly that it was not their tradition! And these were Aboriginal women scholars from across Canada!

Subsequent to that meeting, we in the Native Studies Program at St. Thomas University began researching the history of the cheap cialis wheel, and what we have found is appalling!

Indeed, it was not even known by our people in the Maritimes until the last couple of decades. It is not anywhere in the oral traditions of Maliseet, Mi'kmaq or Passamaquoddy people collected as recently as the 70s and 80s. So how in the world could it represent the knowledge of our elders, if none of them ever heard of it until recently? The answer is that it was a totally invented tradition that was foisted on our people only as recently as the 1970s.

The following is an excerpt from a paper I have written which is due to be published soon. It is titled "The Assault on Aboriginal Oral Traditions: Past & Present." I include in this paper an analysis of the assault on our languages, as the most important of our oral traditions, specifically the fact that our languages have been deliberately targeted for destruction, not only by residential schools, but also by public schools and all schools taught only in a dominant language such as English. The paper also deals with the fact that so many of the stories of our people have been both distorted and often totally invented or fabricated by non-First Nations people. It is in connection with the destruction of our languages that I discuss the matter of invented traditions, especially the medicine wheel, as follows.

[Begin quote] "It is into this void [where so many people no longer speak their languages] that invented traditions have come with a vengeance. One such "tradition", the medicine wheel, is of particular concern for it is now widely promoted as the basis of Maliseet or Mi'kmaq traditions. In fact, it was invented as recently as 1972.

(1) by a man representing himself as Cheyenne, but who was immediately exposed as a fraud.

(2) The medicine wheel is not a Maliseet or Mi'kmaq tradition, nor, it seems, was it a Cheyenne tradition. Within two decades, however, it evolved into the form it is known today, thanks to the embellishments of several others, including the discredited "plastic medicine man" known as Sun Bear, who exploited the idea for their own personal gain.

(3) The irony is that this now very non-Native invention is seen as the essence of Native traditions, not only by the dominant society but also by First Nations people, even many who style themselves as "traditionalists", in spite of the fact that the enormity of the fraud has been known at least since 1983.

(4) With the 1996 publication of a Native Studies textbook that features the medicine wheel,

(5) the concept has been foisted upon a whole generation of Maliseet and Mi'kmaq high school students who now firmly believe that this invention is an old Mi'kmaq and Maliseet tradition.

Furthermore, Native Studies teachers in New Brunswick high schools are now provided with supplementary binders and curriculum materials that are totally focused on the medicine wheel. That this philosophy has effectively and almost totally displaced the oral traditions of our people in schools, makes it impossible to conclude that it does not serve the ends of the ongoing colonial assault on the traditions of our people. That this headlong rush for an invented tradition has occurred without critical attention to its origin as a hoax is a serious indictment of academia, and particularly those institutions that have taken on the responsibility of training First Nations teachers.

(6) The sad irony is that anyone who now voices objections to the medicine wheel as tradition is generally condemned for "messing" with tradition." [End of quote]

I put these comments out knowing that they will stir up much reaction and discussion, and that they will even be considered disrespectful, to say the least! I just hope that the discussion it provokes is respectful. As an indigenous academic my duty is to seek the truth, and to speak out against untruth, particularly with regard to our history. In fact, I now realize it would be disrespectful of me to hold my tongue on this matter any longer, especially when I know that young people are being taught this hoax as some sort of truth or legitimate tradition of our peoples, even in school.

I urge people to read the following footnotes to the excerpt quoted above, and the sources they cite before weighing in on this matter.

Respectfully,
Andrea Bear Nicholas

(1) Storm, Hyemeyohst, Seven Arrows, New York: Ballantine Books, 1972.

(2) Kehoe, Alice B., "Primal Gaia: Primitivists and Plastic Medicine Men", in James B. Clifton, ed., The Invented Indian: Cultural Fictions and Government Policies, New Brunswick & London: Transaction Publishers, 1990, p. 200.

(3) Sun Bear and Wabun, The Medicine Wheel, New Jersey: Prentice-Hill, 1980. Judy Bopp, The Sacred Tree, Lethbridge, Alberta: Four Worlds Development Project, University of Lethbridge, 1988; and Lorler, Marie-Lu, Shamanic Healing within the Medicine Wheel, Albuquerque: Brotherhood of Life, 1989. For a critique of this idea and other New Age phenomena Aldred, Lisa, 2000. "Plastic Shamans and Astroturf Sun dances: New Age Commercialization of Native American Spirituality" in The American Indian Quarterly, vol. 24(3):329-352; and Jenkins, Philip, Dream Catchers: How Mainstream America Discovered Native Spirituality. New York: Oxford University Press, 2004.

(4) Parkhill, Thomas, Weaving Ourselves into the Land: Charles Godfrey Leland, "Indians" and the Study of Native American Religions, Albany: State University of New York., 1997. p. 141, citing Alice Kehoe, "Primal Gaia: Primitivists and Plastic Medicine Men", p. 200-201, who in turn cites Castro, Michael, Interpreting the Indian, Albuquerque: University of New Mexico Press, 1982, p. 155; and Bruchac, Joseph, "Spinning the Medicine Wheel: The Bear Tribe in the Catskills", in Akwesasne Notes, 1983, vol. 15(5):20-22.

(5) Leavitt, Robert, Maliseet & Micmac: First Nations of the Maritimes, Fredericton, NB: New Ireland Press, 1995. .

(6) Dorson, Richard M., Folklore and Fakelore: Essays toward a Discipline of Folk Studies, Cambridge & London, Harvard University Press, 1976, p. 119.

Source: indianz.com

Edit: 22 May 2010 added image of 'Medicine Wheel'

Tags: aboriginal, bear tribe, canada, first nations, four, fraud, hoax, medicine, medicine man, medicine wheel, new age, pan-indianism, quebec, shaman, sun bear, symbol, tradition, traditional, wabun, young, youth

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