Battling doctors go to court over MS treatment
It is unique in my experience to see physicians going to battle in the courts
The fiery medical debate over a controversial new treatment for multiple sclerosis has spilled into the civil courts, as a heart surgeon on one side of the disagreement sues a neurologist on the other for allegedly libelling him.
The unusual lawsuit now appears headed to a jury hearing, after an Ontario court r ej ec t ed Dr. Mark Freedman’s attempts to have the case quashed, saying partly there was evidence of malice by him that should be aired at trial.
Legal action arising from such a scientific dispute would seem almost unprecedented, said Daryl Pullman, a medical ethics professor at Memorial University of Newfoundland.
“It is quite unique in my experience to see physicians going to battle in the courts,” he said. “You don’t see physicians going to court over differences of opinion on a particular treatment of a condition.”
Dr. Freedman is at the forefront of MS specialists who have spoken out against Dr. Paolo Zamboni’s theory that the disease was caused by narrowed neck veins and a backup of blood on the brain.
Dr. Sandy McDonald, a cardiovascular surgeon in Barrie, Ont., and a keen supporter of the Italian physician’s ideas, launched the defamation suit over a 2010 email that Dr. Freedman sent to Ontario’s health minister and its medical regulator.
The Ottawa neurologist urged the ministry to investigate and shut down Dr. McDonald’s clinic because it was performing diagnostic tests on MS patients based on the unproven CCSVI hypothesis. The tests “make a mockery” of the system, he charged in the email, copied to the College of Physicians and Surgeons.
The surgeon said in his suit that Dr. Freedman acted maliciously and “with a reckless disregard for the truth,” part of a “continuing campaign to embarrass and vex the pro- ponents of CCSVI,” according to the court ruling.
The college eventually declared that Dr. McDonald had directly billed patients — not the medicare system — for the tests and did nothing improper.
A three-judge panel of Ontario’s Divisional Court upheld this month an earlier decision rejecting Dr. Freedman’s request to have the suit tossed out. His defence arguments, and the allegation that his comments were malicious — meaning he knew them to be false — should be assessed at trial, said a three-person panel of the Divisional Court.
Among other factors pointing to possible malice, “the language of the email itself is, in certain respects, inflammatory,” said Justice Herman Wilton-Siegel in the court’s ruling.
Dr. McDonald could not be reached for comment, but Jonathan Lisus, his lawyer, said the surgeon believed the other physician had crossed a line. “Dr. McDonald felt strongly that Dr. Freedman’s conduct was inappropriate and went well beyond the bounds of proper scientific and professional discourse,” said the lawyer. “He accused Dr. McDonald of fraudulent, unethical, unprofessional conduct … to the highest health official in the province.”
Neither Dr. Freedman, a University of Ottawa professor, nor his lawyer could be reached.
A trial by jury, relatively rare in civil cases, is set to take place in Barrie, though no date has been set.
The CCSVI theory initially suggested MS occurred because veins in the neck become obstructed, causing blood to back up on the brain and trigger the inflammation that is behind the disease. Dr. Zamboni, a vascular surgeon, said it could be treated with angioplasties and other procedures that opened up the narrowed vessels.
His concept first came to the fore in late 2009 when glowing media accounts sparked a groundswell of excitement among MS patients, whose debilitating condition is typically treated with drugs that have limited benefits and often-unpleasant side effects.
A flood of studies since then has produced conflicting results, though some of the most rigorously conducted recent trials have suggested the vein-narrowing is either all but nonexistent, or common through the entire population. A federally funded clinical trial of the actual vein-opening, “Liberation” treatment is under way.
Supporters say the Liberation therapy has helped many patients, and that CCSVI likely plays at least some role in MS.
Dr. McDonald, chief of surgery at Barrie’s Royal Victoria Hospital, drew attention in 2010 after he began performing diagnostic imaging on MS patients to see if they had narrowed neck veins. Another surgeon at the hospital performed the treatment on about half a dozen of them.
In October of that year, Dr. Freedman wrote his email to Deb Matthews, the Ontario health minister, and the regulatory college, suggesting that Dr. McDonald had “lured” patients to his imaging clinic, and billed the tests under the guise of another diagnosis to ensure medicare paid him.
Dr. Freedman said in his defence that he was worried about patients being drawn to undergo a risky procedure when it had no proven medical benefit.