DR. JONES' HEARING SYNOPSIS
(DAY NINE)
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