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Epi Wit & Wisdom Articles
Private Research Group Sees
Alarming Trend in New Legal Threats to Epidemiologists
Professional Liability Insurance
and/or Indemnification May Be Good Ideas
Believe it or not, some of your
colleagues are now suggesting that epidemiologists add professional
liability insurance to their insurance portfolios along with the more
commonly held life, health, automobile and homeowners insurance
policies. Why the concern? In a draft manuscript shared with the Epi
Monitor, George Carlo and Rebecca Steffens and their colleagues at the
Health and Environmental Sciences Group in Washington, DC have spotted
what they consider an early and alarming trend. As epidemiologists and
epidemiological research have become increasingly integral to tort
litigation, the authors report that epidemiologists have themselves
become targets of onerous subpoenas and lawsuits. “It’s a new ball
game,” Carlo told the Epi Monitor. “In the past, there were always
attacks but they took place within the arena of peer review. What’s
new is that opponents are now making the epidemiologists personally
liable. It is the ultimate intimidation. When a person’s professional
and personal livelihood are at stake, it impacts them and it’s not
business as usual. It will cost $200,000 - 300,000 to defend yourself.
Some will quit,” he said.
In support of his observations
about the changing climate for epidemiologists, Carlo pointed to the
plenary session on “The Battered Investigator Syndrome” held recently
at the American College of Epidemiology meeting in Boston. In that
session, investigators involved with breast implants, gulf war
syndrome, electromagnetic fields, and induced abortion and breast
cancer discussed the difficulties they faced in working in these
controversial areas. According to Dale Sandler, NIEHS epidemiologist
and a member of the program committee who attended the session, it
highlighted the difficulties of addressing research questions which
have advocates on both sides of an issue. Her sense is that these
problems are not really new, but that there are more lawyers involved
nowadays and people are more clever about the research being done.
Sometimes there are lawsuits filed on matters that are not the central
issue of the research, and these can have a derailing effect.
Epidemiolgists can be naive about these matters, according to Sandler,
because it is not part of their training for doing research. You have
to learn the hard way through experience. Sometimes the problem stems
from the lack of clarity about the exposures or the diseases or
syndromes being studied.
Other examples cited by Carlo
include two lawsuits which he has been involved with at a cost of
$700,000 to defend. One cost $100,000 simply to get it dismissed. In
his situation, the legal costs were borne by Wireless Technology
Research, a group he is affiliated with. However, he knows of another
suit in which the epidemiologist was sued personally for the way in
which he defined a cohort for his study. In that situation, his
employer reportedly refused to pay his defense costs. In another
situation, an epidemiologist who had already conducted research was
reportedly forced to discontinue doing research on this particular
topic because her employer considered the liability too high.
According to Carlo, when you get subpoenas it can take months to
prepare a deposition. This wastes a lot of time and money and keeps
you away from your regular work. Others are defining your priorities.
In the legal arena, the trend is to do whatever you need to do to win.
In the legal framework, that is fair game, according to Carlo.
Besides the professional
liability insurance, another safeguard suggested in the paper is the
inclusion of indemnification language in research contracts. “Such a
clause would ensure that the sponsor of the research is responsible
for the costs of litigation, including attorneys’ fees and any
potential liabilities or judgements,” according to the paper. Finally,
professional associations should become active in monitoring for
adverse trends and in organizing interventions at an early stage. “It
cannot be assumed that the field of epidemiology is above the
fray—where billions of dollars in claims, legal fees, and awards are
involved, all bets are off,” conclude the authors.
Published October 1997 v
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