(Feb. 10) The Supreme Court should grant the review of an appeals court decision that could block millions of surgery patients from needed relief, all based on the testimony of “experts” who themselves conducted no experiments, epidemiological studies, or lab work.

The background of the lawsuit at issue is bizarre. It involves a patient-warming system, called the Bair Hugger, which for more than three decades has been the industry standard for keeping people comfortable during surgeries. The suit against the Bair Hugger was filed — get this — by the very doctor who invented it.

Inventor Scott Augustine lost his rights to the Bair Hugger when he was convicted of Medicare fraud. So he invented a new competing warming device called the Hot Dog. He suddenly began spurring lawsuits claiming that the Bair Hugger, his own creation, caused infections by blowing airborne bacteria into hip- and knee-surgery areas even though the warming device is used only on the upper body, not on the body parts being operated on.

The Food and Drug Administration has repeatedly dismissed Augustine’s claims and reaffirmed that the Bair Hugger is not only safe but “demonstrated to result in less bleeding, faster recovery times, and decreased risk of infection for patients [emphasis added].” Every major independent study has found such systems safe, including one by 400 physicians from 52 countries reaching a “strong consensus” that “no studies” show they increased surgical-site infections. A German court even forbade Augustine from repeating what it called false claims against the Bair Hugger.

And so Augustine himself sponsored a series of bogus “studies” purporting to show otherwise. Based partly on those efforts and on an engineer’s computer simulation, three “medical experts” would testify that the Bair Hugger was unsafe.

Of course, most of us aren’t scientists. We aren’t well versed in adjudging who is or isn’t a valid medical “expert.” That’s why the Supreme Court in 1993 laid down what is known as the Daubert standard…. [The remainder of this column is at this link.]


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