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Ignorance is no defense for Dr. Jay

April 22nd, 2009 · 8 Comments · Serious overreach

It was bad enough when the Michigan Law Review published Dr. Jay Gordon’s “expert opinion” that parents could not be sued for damages if their unvaccinated child infected someone else. And although his star turn as legal scholar was marred by his own factual errors, and up-staged by case law, our Pediatrician to the Stars has returned for a sequel.

Yes, Attorney Gordon is back, this time on Huffington Post, where he accuses a pro-vaccine doctor of committing “ethics and HIPAA violations so egregious that the Medical Board must take him to task.”

Gordon is outraged by an April 20 Los Angeles Times column by Dr. Rahul Parikh, a Walnut Creek pediatrician, who wrote:

It wasn’t my first lesson about the importance of vaccines. That had happened a year earlier, when I was an intern at Cedars-Sinai Medical Center, half a world away. One night, we admitted a 9-month-old girl who was having trouble breathing. She arrived with her parents — Mom in tears and Dad tense with worry. Her parents were movie stars from a Hollywood borough who, unlike that mother from a Bollywood slum, needed nothing. In a way, they had chosen “nothing” for their daughter from the time she was born — refusing all vaccines for her.

“Too much information!” cries Gordon, who claims that Parikh exposed the patient’s identity in violation of HIPPA regulations which guard patient privacy:

Dr. Parikh is a well-published medical author and blogger and he speaks of a patient he saw as an intern in the year 2000 at Cedars-Sinai Medical Center. (His bio on many sites lets you know that year.) He identifies the parents, their unique profession and their child’s age and illness. This family can be identified by anyone who can use Google.

They have given me permission to respond to the LA Times article.

What he has done is illegal and unethical and violates the family’s and child’s privacy.

He had no noble goals and very little educational intent. He just wants to scare parents and is willing to break the rules and violate medical confidentiality to do it.

He even identifies me in his story: “We stuck more needles into her tiny veins, and her doctor performed a spinal tap to make sure she didn’t have bacterial meningitis.” He knows that I’m the only private attending pediatrician who comes to Cedars to do spinal taps.

It doesn’t take a Philadelphia lawyer to know that Gordon gave more clues to the identity of the movie star couple than did Parikh. He even outed himself as the mysterious midnight spinal tapper, providing yet another clue. “Movie star” may be a unique job title in fly over country, but certainly not in LA, where you can’t swing a dead cat without whacking one upside the head.

For HIPPA privacy to be breached, patient health information must either identify the individual or disclose information which provides a reasonable basis to identify the individual. Identifying the parents of the patient as movie stars from Hollywood is not even close to meeting this test.

Parikh did not identify Gordon as an attending physician, either by specialty or name.  Even if he did, no patient privacy laws would have been broken because in this case it is no more possible to identify the patient through a physician than by identifying the treating hospital.

So while no HIPPA violations occurred, our Legal Assistant to the Stars does have legitimate concerns over California’s defamation laws, which define libel per se as:

“a libel which is defamatory of the plaintiff without the necessity of explanatory matter, such as an inducement, innuendo or other extrinsic fact, is said to be libel on its face.   As the court stated in Bates v. Campbell, if the statements have “the natural tendency to injure a person’s reputation” it is libel per se. Bates v. Campbell, (1931) 213 Cal. 438, 441;  Adams v. Cameron, (1915) 27 Cal. App. 625 (1915) (libel per se was found where a train passenger wrote letters stating that the conductor was intoxicated and was loud and vulgar because of his intoxicated state); Slaughter v. Friedman, (1982) 32 Cal. 3d 149.

A plaintiff suing for libel per se does not need to prove damages. Parikh’s lawyers need only argue that Gordon’s statements clearly attack their client’s professional reputation and imply that Parikh violated the ethics and laws which govern the way physicians work. Let’s look at Gordon’s accusations again:

“(Parikh) commits ethics and HIPAA violations so egregious that the Medical Board must take him to task” and “What he has done is illegal and unethical and violates the family’s and child’s privacy.” Tough words coming from Gordon. Tougher still to prove them true.

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8 responses so far ↓

  • 1 Jay Gordon, MD, FAAP // Apr 22, 2009 at 9:42 pm

    Good points. I’ve removed the nastier comments in the HuffPo piece. The Internet lends itself to false bravado and unpleasant ad hominem attacks [please see above :-) ] and I have to work on not being part of that problem.

    I stand by my original unhappiness at the inaccurate proclamation of whooping cough and I still think that vaccines can cause autism. (Just thought I’d toss in that last part for you.)

    Best Regards,

    Jay

  • 2 Kathleen Seidel // Apr 23, 2009 at 6:16 am

    The references to mythical HIPAA violations are still there, both in the article and in the keywords at the head of it.

    Dr. Gordon, since you’re checking ANB, and since you apparently don’t make a practice of responding to comments on your Huffington Post articles, let me put this question to you again: Did you actually read all 600+ pages of the MMR test case decisions? It’s clear you disagree with the conclusions, but I can’t see for the life of me how anyone could read them all and still come away with the impression that the Special Masters engaged in a “whitewash.”

  • 3 Kathleen Seidel // Apr 23, 2009 at 6:34 am

    Oh, I almost forgot to share my amusement at the vision of swinging a dead cat in LA. Taylor Negron (“You don’t want carpet, you want an area rug!”) could make some good comic hay out of that one.

  • 4 Chris // Apr 23, 2009 at 9:12 am

    Dr. Gordon said “I still think that vaccines can cause autism.”

    Even though all the evidence shows no relationship. Wow… way to not keep up with the medical literature! You are definitely the type of primary care provider to avoid.

  • 5 Chuck // Apr 23, 2009 at 10:47 am

    Most primary care providers should be avoided when it comes to treating ASD and individuals should be able to recuperate medical expense for vaccine preventable illness from the original point of contact even if the point of contact was vaccinated and the sickened individual was not.

  • 6 Autism Blog - Dr Jay Gordon, HIPAA violation? Really? « Left Brain/Right Brain // Apr 23, 2009 at 11:56 am

    […] I see Autism News Beat has covered this also. In the comments Dr Gordon appears and […]

  • 7 FreeSpeaker // Apr 23, 2009 at 1:39 pm

    Let’s recap:

    Dr. Jay said vaccines contain ether and anti-freeze, and was proven wrong.

    Dr. Jay said that you cannot sue a person who fails to vaccinate and you get sick because of that, and was proven wrong.

    Dr. Jay says that Dr. Parikh violated HIPAA, and is shown to be wrong, but does not withdraw the statement.

    Why would anyone listen to anything that Dr. Jay has to say?

  • 8 Prometheus // Apr 27, 2009 at 9:42 am

    I find it difficult to believe that “Dr. Jay” is the “…only private attending pediatrician who comes to Cedars to do spinal taps.”

    According to Cedars Sinai, they have over 2000 attending physicians. I’m sure that at least a few would come to the hospital to do a lumbar puncture (what doctors call “spinal taps”) on a private patient. Heck, I’d expect my pediatrician to do that and I’m not a movie star!

    “Dr. Jay” has repeatedly shown that he relies on his “gut feelings” rather than the facts and data – this is simply another example of this.

    Prometheus

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