Legal thuggery directed at Steve Novella and Science-Based Medicine

If there’s one characteristic of supporters of dubious medicine, it’s that they detest criticism. Whereas your average skeptic might not like criticism—sensitivity to criticism being a human trait and all—science- and evidence-based criticism tends to drive dubious medical practitioners (and, I might add, promoters of various other forms of woo) into paroxysms of anger. Not infrequently, because they can’t refute such criticisms with science and evidence, they respond by lashing out, by going on the attack. That lashing out can take many forms, from simply writing abusive posts about their critics, with or without the intent to poison their critics’ Google reputation, to, in the case of pseudonymous bloggers, “outing” their critics in order to try to silence them. Sometimes they will try to make trouble for their critics by harassing them at work, complaining to their bosses, or generally doing what they can to make their critics pay for criticizing them. Sometimes they will make legal threats. I have experienced all of these things from my critics, including antivaccinationists and supporters of Stanislaw Burzynski, such that my Google reputation is in tatters, and my bosses tend to roll their eyes and sigh when another complaint comes in from an antivaccinationist or Burzynski supporter.

Sometimes, in not rare enough cases, such people will go so far as to actually sue their critics for libel or defamation. We’ve seen this happen before to defenders of science such as Brian Deer, who was sued by Andrew Wakefield; Simon Singh, who was sued by the British Chiropractic Association; and Ben Goldacre, who was sued by Matthias Rath. The lawsuits were all frivolous, of course, and the plaintiffs usually lose or back off, but frivolous lawsuits designed to silence can wear down even the most dedicated defender of science through expense, nuisance, and lost time. Worse, there is always the possibility of the skeptic losing and being on the hook for major dollars for damages, even when the case against the skeptic was weak. After all, the law is not perfect. Indeed, because British libel laws were so plaintiff-friendly, making it easy to sue scientists and bloggers criticizing pseudoscience, a movement sprang up to reform them—and, seemingly against all odds, ultimately succeeded. Unfortunately, even though the libel laws in the US are much more favorable toward the person being sued for libel than toward the plaintiff, thanks to the First Amendment, there are still defenders of science who are sued—like Brian Deer, for instance, who was sued in Texas by Andrew Wakefield—for defending science.

Unfortunately, one of those people is a friend of mine, Steve Novella, who this morning announced that he and a certain blog that I’ve been known to frequent, if you know what I mean, are being sued for having criticized a man named Dr. Edward Tobinick. This lawsuit, IMHO, is cut from the same cloth as the lawsuits against Brian Deer, Ben Goldacre, and Simon Singh. (The online documents regarding the lawsuit can be found here.) Oddly enough, Tobinick isn’t suing over what I would have thought (defamation or libel), which is what practitioners like Dr. Tobinick usually sue over, but rather appears to be using a legal tactic I have never heard of. Specifically, he’s suing under the Lanham Act and claiming that Steve Novella was using false advertising to attack him in order to promote his own Yale Neurology practice. I’ll let Steve tell the tale from here on out:

An interesting wrinkle of this suit is that Tobinick is claiming that my blog post is an “advertisement.” This is a legal maneuver as the threshold for forcing someone to remove an advertisement is much lower than the threshold for suppressing their free speech. I can only assume that he and his attorneys are not bothered by the fact that blog posts on SBM are blatantly not advertisements.

In the case of the Enbrel article he had to make the absurd claim that the post (which does not mention my own practice) was an advertisement for my neurology practice at Yale, designed to attack a “competitor.” He would have us believe that Yale neurology in Connecticut is concerned about a clinic in California and Florida. To see how desperate the claim is, he argued that because I use Botox, which can be used to treat symptoms following stroke, that his treatments represent a competitor. However, I don’t use Botox to treat stroke patients. I mostly use it to treat migraines, as I am a headache specialist.

Perhaps he feels that my 18 year career promoting science, critical thinking, and science-based medicine is just a cover so I can occasionally attack distant tangential “competitors.”

Not being a lawyer, for the life of me I can’t understand why his lawyers chose this strategy. Lawyers, feel free do educate me in the comments! Other than that, Tobinick has cast the usual wide net, suing Steve, the New England Skeptical Society (which owns and maintains the SBM blog), the Society for Science-Based Medicine (which does not own SBM but on whose board of directors Steve sits), as well as Yale (yes, Yale). Suffice to say that Tobinick appears to be roping into his lawsuit anyone and any entity even remotely related to Steve and his criticism of his treatments.

So what, exactly, is Tobinick doing in his clinic that attracted Steve’s attention over a year ago? Basically, he’s using a drug called Enbrel (etanercept), an injectable fusion protein in which the receptor for a cytokine protein called tumor necrosis factor (TNF) is attached to the constant end of the IgG1 antibody. It’s a drug that inhibits the activity of TNF, whose normal function is to promote inflammation, which makes etanercept an immunosuppressant. That’s why it’s used to treat inflammatory and autoimmune diseases, such as rheumatoid, juvenile rheumatoid and psoriatic arthritis, plaque psoriasis and ankylosing spondylitis.

Tobinick, it turns out, is injecting Enbrel near the spine (perispinal) off label to treat a number of conditions, including Alzheimer’s disease. (Again, Again, Steve has the details.) From my perusal, Tobinick’s website for his Institute for Neurologic Recovery is lean on convincing research but includes, of course, heart warming testimonials of near miraculous cures for a variety of conditions. Moreover, Dr. Tobinick is not a neurologist, and, as Steve has pointed out, he has not produced any compelling clinical trial evidence for his proposed treatment:

The only way to really know if the treatment itself is having any neurological benefit is with careful double-blind placebo controlled clinical trials. Tobinick, however, has not produced such evidence. He has a long list of publications – all case series, observational studies, pilot studies, case reports, and reviews. I could not find a single double-blind placebo controlled trial establishing the efficacy of his treatment for any of the conditions I listed above.

At best Tobinick’s treatment should be considered experimental. I think the plausibility of the effects he is claiming is extremely low. It’s possible that and anti-TNF effect may be of some use, but given the type of evidence we have it is likely we are seeing mostly (if not completely) placebo effects.

This is the scientific criticism that Dr. Tobinick cannot abide. In my opinion, it is legitimate criticism, and he cannot answer it other than with a lawsuit. Certainly, he appears unable to me to answer them with basic science and clinical trials—same as it ever was for practitioners such as he. I’ll give you updates as I learn them. In the meantime, Steve has, admirably, decided to fight, and I admire him for that. After all, if all it took were a legal threat to get SBM to take down a post that offended someone like Dr. Tobinick, SBM would open itself to all manner of attempts to silence it using legal thuggery.