NEW ORLEANS (Legal Newsline) - A medical society’s recommendations for the treatment of Lyme disease aren’t facts subject to claims of misrepresentation, the Fifth Circuit Court of Appeals ruled, throwing out a long-running lawsuit by plaintiffs who claimed infectious disease doctors had been bribed by insurance companies to deny care for chronic Lyme.
The plaintiffs argued the 2006 Infectious Disease Society of America guidelines arbitrarily downplayed the existence of chronic Lyme and recommended against long-term treatment with antibiotics, which can have dangerous side effects. They acknowledged a long string of cases that have characterized medical-association guidelines as opinion, not fact, but said the IDSA guidelines had to be viewed in the context of doctors and insurers who took them to be the truth.
The Fifth Circuit wasn’t buying that argument.
“If anyone has taken the Guidelines out of context, it is plaintiffs,” the court said in a Nov. 16 decision. “The Guidelines do not become actionable factual representations merely because they disapprove of studies plaintiffs prefer.”
The IDSA published clinical practice guidelines for Lyme and other tick-borne diseases in its peer-reviewed journal, Clinical Infectious Diseases. Those guidelines expressed doubt about the existence of chronic Lyme disease and recommended against long-term antibiotic therapy, which is a lucrative if controversial practice by some physicians.
In 2017, the plaintiffs sued IDSA and seven of the 14 doctors who wrote the guidelines in federal court in Texas, along with six health insurance companies and an insurance trade association. They accused the insurance companies of paying the doctors “large consulting fees” to downplay chronic Lyme so that the insurers could deny coverage for the condition.
Blue Cross, Kaiser Permanente and other insurance companies settled on undisclosed terms in 2020 but IDSA fought on. A federal judge dismissed the case against IDSA, ruling the plaintiffs didn’t have any evidence the insurers paid doctors to deny the existence of chronic Lyme. The plaintiffs then amended their complaint, dropping the conspiracy claims but repeating the claim IDSA misrepresented the facts. The judge dismissed that claim as well last year and ordered the plaintiffs to pay IDSA $43,940 in costs.
The plaintiffs appealed to the Fifth Circuit, which also rejected their arguments.
On appeal, the plaintiffs said the IDSA misrepresented the truth when it said there is “no convincing biological evidence” for the existence of chronic Lyme and that long-term antibiotic therapy “has not proven to be useful and is not recommended.” “Not recommended” is a medical opinion, the court ruled, not a statement that can be challenged as fraudulent.
“Just because plaintiffs disagree with those opinions does not mean that IDSA is somehow liable because their doctors or insurance providers found the opinions persuasive,” the court said.
Other courts have rejected similar suits over peer-reviewed articles on First Amendment grounds, including a lawsuit accusing a medical journal of making false statements about the effectiveness of a treatment for premature infants and a anesthetic to control post-surgical pain.
The plaintiffs were represented by Rusty Hardin & Assoc., Shrader & Assoc. and Lance Lee. IDSA was represented by Pillsbury Winthrop.