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May 31, 2007

The final day of Dr. Jones' hearing brought us to the same, stuffy room that we had been to in April, but with less room for attendees. There were now large tables in the room, taking up space, frustrating for many. Shortly after the hearing began, we were told that some would have to leave, as the fire code only permitted 50 people in the room (and 65 people were present) Many who had come long distances to attend (Florida, Texas, Maine), and to support Dr. Jones, were very disappointed, and angry. In addition, there were reports that, once the room was clear of the requisite number, others who worked in the building took the seats of those who left, further frustrating the Lyme patients and parents who had been required to leave.

Elliott Pollock, Dr. Jones. attorney began by introducing exhibits that would be used to support Dr. Jones' case. One document, according to Pollock, "contradicts claims by the health department, and claims that the authors have made" regarding chronic Lyme disease. The health department attorney objected to the exhibits, seeing it as out of the scope of the hearing definition for that day. Panel discussion ensued, discussing the value of one exhibit, a patent (not a peer-reviewed study). Dr. Jones' attorney stated that he was introducing the documents in order to refute claims of past witnesses against Dr. Jones [not to prove anything regarding chronic Lyme disease].

One document was admitted; one was not.

The mother of the children testified by phone, from Nevada (see synopsis of Day 5 regarding her initial testimony)

R, the mother, testified that even following the visitation schedule, Mr. S was often not there with the children, but playing golf out of state. In addition, she refuted his testimony that there was no court action pending. She stated that there was a court appearance scheduled for June 14th, to determine Mr. S's arrears regarding child support. In addition, the mother testified that Mr. S is required to be carrying medical insurance for the children, and does not have a plan in place.

R stated that Mr. S had testified on tape that he had bitten the children, but the charges were dropped because the police said there was not enough "hard core evidence", indicating that the fact of the biting, itself was not in dispute. Regarding illnesses, the mother testified that her son had had headaches almost on a daily basis, and symptoms of petit mal seizures. The doctors were concerned about genetics, and asked to test both parents. The mother agreed to the testing, but the father refused, saying "No, you're not testing me for anything. You're a quack," storming out of the doctor's office.

Regarding home schooling, the mother stated that she'd introduced the subject to Mr. S when their son had been doing nothing but sharpening pencils in the school office for 3 years, observing that the school was not educating their son. Mr. S refused to consider the idea.

Asked by Attorney Pollock how the children were doing now, the mother discussed their progress. Both are doing very well.

The mother reiterated that Lyme disease was suggested by the doctor that was treating her Lyme, a doctor in Florida, who suspected that the children might have been born with Lyme. That is what led her to seek out Dr. Jones.

This completed R's testimony.

Pollock asked for the opportunity to file a brief, rather than going directly to closing arguments. The request was denied by the panel.

The hearing proceeded, with closing arguments.

The health department attorney stated that there were two broad categories of allegations. One was a set of allegations with reference to the 2 children, because Dr. Jones treated them for Lyme, with the question as to whether he was following any standard of care. In addition, the question arose regarding Dr. Jones prescribing antibiotics for a cough on the phone to the mother, and made recommendations to the school regarding a school program.

The health department attorney's closing arguments attempted to discount or dismiss the testimony of Drs. Phillips and Fallon, despite the fact that these experts had had considerable documentation to back up their testimony, as well as significant clinical and research experience. Many who had been to the hearings would also question the attorney's interpretation of Dr. Shea's testimony. Many of the points that were made focused on what was not in their testimony, rather than what was there. The attorney stated: "The issue is when you have none of the objective signs, and a constellation of symptoms that can be caused by a number of diseases, you cannot confirm a diagnosis, based on a negative test. Also, can you confirm it based on a positive test, when it shows exposure?" He further stated, "Dr. Jones submitted evidence from a laboratory that is most likely to find a positive test," implying that that might mean there are problems with that lab, rather than questioning the accuracy of the labs that had less of an expertise in laboratory testing for Lyme disease.

Attorney Elliott Pollock, representing Dr. Jones, then proceeded with his closing arguments. First, he noted that the state has the burden of proof, and that they need to prove their charges by a preponderance of evidence. Attorney Pollock proceeded to state what, in his view, the case was about, reminding the panel that it is "about a very distinguished physician's career -- very distinguished and effective career," addressing this disease. He further stated that it was about "a non-custodial father -- attempting to use the Connecticut system when the Nevada system did not help him to obtain custody of his children...even to the point of accusing his former spouse of mental illness." In addition, Pollock pointed out that, in a previous case in Connecticut against a physician who is known for treating chronic Lyme disease, it was established that there is no one standard of care, and that in recent years, it has been shown that Lyme disease is even more complex, with no single standard of care. In his eloquent closing, he made it clear that it was not in the power of the health department to dictate diagnosis and treatment of Lyme disease to physicians.

Regarding specifics allegations, Pollock noted that in her testimony, there was no question as to R.s ability to monitor side effects from medications in her children (see Synopsis of Day 5). She maintained contact with Dr. Jones, there were no adverse reactions, and the children got well. He further noted that, regarding the question of the children's exposure in Lyme-endemic areas, a lack of knowledge of Lyme has led to an under-reporting by physicians, influencing the statistics available in Nevada and Oklahoma. Pollock said, "How can we expect them to report cases that they don't know how to diagnose?" In regard to the health department's claim that the case is not about Lyme, Pollock said, "If the case is not about Lyme disease, why did Dr. Shapiro come forward to testify, since he said over and over again that unless there are objective signs, it's not Lyme disease?" Also, regarding charges, Pollock noted that, unlike most of the cases the Board hears, there was no allegation that the children were harmed by Dr. Jones. Testimony, in fact, indicated that their health was much improved. Pollock also noted that Dr. Jones did not diagnose Lyme over the phone, and spent 2 hours in his office with each of the children, before making a diagnosis.

Pollock noted: "This is a very important case, from the point of view of health care regulation. Going back to the 19th century, physicians have been derided -- later proved right." He stated that it is important that decisions regarding treatment "can not emerge out of disciplinary proceedings." Pollock reiterated the importance of physicians being able to make decisions based on their own clinical experience, stating, "It would be absolutely offensive for a doctor with Dr. Jones experience not to [be permitted to] rely on his clinical data."

Day 9 of the hearing ended. When the panel completes deliberation, they will issue their recommendations, and a date will be scheduled for them to present those recommendations to the full medical board. This will, in all likelihood, take several months.

Sandy Berenbaum, LCSW, BCD
Family Connections Center for Counseling
Brewster, New York
(845) 259-9838

Hearing Summaries