I have long held that scientists, like many other professionals, should be subject to a sort of “product liability”, if they employ fraud, engage in some other misconduct or in some way fail to meet the standards to be reasonably expected.
If a scientist is to be considered “responsible” for his work then this must be mirrored by a corresponding “liability”. In my experience a lack of liability is always accompanied by the absence of responsibility.
The product that researchers and scientists produce is publications – mainly as papers published in scientific journals and as books. Scientific misconduct (whether plagiarism or faking data or inventing data or cherry picking data) leads occasionally to dismissals (but not always) and generally very little else. It seems to me that the concept of tort or “product liability” should be applicable to the work of scientists and researchers where their work is the result of faking data, fraud or other misconduct since it would be work that “had not been done in good faith”. Tort would apply because the ramifications of their misconduct would extend far beyond their employment contracts with their employers.
Now an AIDS scientist who faked his data is being charged with criminal offences.
Responding to a major case of research misconduct, federal prosecutors have taken the rare step of filing charges against a scientist after he admitted falsifying data that led to millions in grants and hopes of a breakthrough in AIDS vaccine research.
Investigators say former Iowa State University laboratory manager Dong-Pyou Han has confessed to spiking samples of rabbit blood with human antibodies to make an experimental HIV vaccine appear to have great promise. After years of work and millions in National Institutes of Health grants, another laboratory uncovered irregularities that suggested the results – once hailed as groundbreaking – were bogus.
Han was indicted last week on four counts of making false statements, each of which carries up to five years in prison. He was set to be arraigned Tuesday in Des Moines, but he didn’t show up due to an apparent paperwork mix-up. A prosecutor said Han will be given another chance to appear next week. …….
Experts said the fraud was extraordinary and that charges are rarely brought in such cases. The National Institutes of Health said it’s reviewing what impact the case has had on the research it funds.
…… Oransky, a journalist who also has a medical degree, said there have been only a handful of similar prosecutions in the last 30 years.
He said Han’s case was “particularly brazen” and noted that charges are rarely brought because the U.S. Office of Research Integrity, which investigates misconduct, doesn’t have prosecution authority, and most cases involve smaller amounts of money. ……
According to the indictment, Han’s misconduct caused colleagues to make false statements in a federal grant application and progress reports to NIH. The NIH paid out $5 million under that grant as of earlier this month. Iowa State has agreed to pay back NIH nearly $500,000 for the cost of Han’s salary.
Han’s misconduct dates to when he worked at Case Western Reserve University in Cleveland under Michael Cho, who was leading a team testing an experimental HIV vaccine on rabbits. Starting in 2008, Cho’s team received initial NIH funding for the work. Cho reported soon that his vaccine was causing rabbits to develop antibodies to HIV, which left NIH officials “flabbergasted,” according to a criminal complaint against Han. Cho’s team sent blood samples in 2009 to Duke University researchers, who verified the apparent positive impact on the vaccinated rabbits. The confirmation was seen as “a major breakthrough in HIV/AIDS vaccine research,” according to the complaint.
Iowa State recruited Cho in 2009, and with his team – including Han – he soon received a five-year NIH grant to continue the research. The team kept reporting progress. But in January 2013, a team at Harvard University found the promising results had been achieved with rabbit blood spiked with human antibodies.
An investigation by Iowa State pinpointed Han, after he was caught sending more spiked samples to Duke University. In a Sept. 30, 2013 confession letter, Han said he started the fraud in 2009 “because he wanted (results) to look better” and that he acted alone.
Individual researchers are unlikely to have the means to make restitution for all the financial waste they may have caused by their misconduct. Universities and Institutions have some possibility of being forced to repay grants obtained by fraud but are rarely asked to do so. Careers of other researchers could also have been compromised.
It should still be possible for someone damaged by scientific misconduct to make a civil case for damages even if criminal charges are not brought. But what that needs is that the output be considered “product” and that the scientist and his institution have then some “product liability”. That implies a duty of good faith and of application of some reasonable level of competence. Misconduct and even gross negligence on the part of the institution or the scientist could then give rise to a claim for damages. Even the journals, their editors and reviewers ought to have some responsibility and potential liability.
If every published paper carried some product liability, the rush to publish nonsense and lies may reduce even if the publications industry would not be pleased. But it would improve the quality of publications no end.
Retraction Watch covers the story and has a discussion about the criminalisation of scientific fraud.
The k2p blog 