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679 F. 2d 341 - Fitzgerald v. C Manning M D
679 F2d 341 Fitzgerald v. C Manning M D
Russell T. FITZGERALD, Appellant,
Preston C. MANNING, Jr., M. D., Appellee.
Fourth Circuit.
Argued Jan. 8, 1982.
Decided May 20, 1982.
T. David Thelen, Lovingston, Va. (Eggleston & Thelen, Lovingston, Va., Gordon W. Poindexter, Jr., Cooley, Poindexter, Burns & Marks, Waynesboro, Va., on brief), for appellant.
James G. Welsh, Staunton, Va. (Timberlake, Smith, Thomas & Moses, P. C., Staunton, Va., on brief), for appellee.
Before RUSSELL, HALL and MURNAGHAN, Circuit Judges.
DONALD RUSSELL, Circuit Judge:
This is a medical malpractice action. At the conclusion of the plaintiff's case, the defendant moved for a directed verdict. The District Court granted the motion and judgment for the defendant was duly entered. From that judgment, the plaintiff has appealed. We affirm.
The plaintiff's illness, with its consequent hospitalization and treatment resulting in this action, began with nausea as he was working on the second shift at the Westinghouse plant in Verona, Virginia, on August 17, 1972. Because of the nausea he went to the restroom. There he began to vomit "something black." He assumed at the time that he had merely regurgitated the hamburger, along with some beer, which he had had shortly before. Later, between ten and ten-thirty o'clock that night, he became ill again and "this time it was pure red blood" that he vomited. He reported his condition to his supervisor and requested permission to leave. Though given such permission, he remained at the plant until the shift change. At that time, he joined his fellow employee who was riding with him, and was proceeding through the parking lot to his car. He began vomiting blood profusely and almost constantly before reaching the car. His companion refused to allow him to go home in that condition and they went instead to King's Daughters' Hospital in Staunton. He arrived at the hospital at about one o'clock on the morning of August 18. The plaintiff had no regular physician and the hospital called the defendant who responded almost immediately and who remained continuously in attendance on the plaintiff for almost twenty hours steady.
After the plaintiff was admitted, and before the defendant had arrived at the hospital, a nurse had accumulated in a basin the blood the plaintiff had vomited after his arrival. When the defendant reached the hospital, he noted the basin of blood and inquired of the nurse on duty how long the plaintiff had been vomiting. When told, he directed that a blood sample be instantly taken and ordered blood for immediate transfusions, administered regularly over a four-hour period. The defendant also ordered that the plaintiff's blood pressure, respiration and pulse be noted each half-hour, that his urine output be followed, that his bleeding be monitored systematically, in the hope that bleeding might be stanched by normal remedies, and that an antacid be given him through a nasal tube each hour.
By early morning of August 18, the flow of blood from the plaintiff's mouth had not moderated. The defendant had already attempted without success to pump out the plaintiff's stomach. Dr. Pittman, an experienced internist with a specialization in gastroenterology, whose assistance the defendant had secured, attempted to arrest the blood flow by applying ice water lavage (or rinsing of the stomach) or, as the plaintiff described it, by "freezing" the stomach. Antispasmodic medication had also been prescribed. When none of these actions reduced substantially the flow of blood, the defendant made a provisional diagnosis of "probable acute bleeding, duodenal or gastric ulcer, some tumor, such as Leiomyoma, possible, alcoholic gastritis, doubtful," and concluded that there was "no alternative to operating (in order) to go in and see what was causing (the bleeding)." He accordingly advised the defendant that it appeared likely he had an ulcer and that an exploratory operation was necessary. After the defendant explained the operation to the plaintiff, the latter agreed to the operation and signed a written waiver to that effect.
The operation itself, performed during the morning of August 18 under a general anesthetic, was "designed primarily (for) exploratory" purposes. When the plaintiff's abdomen was opened in the course of this "exploratory" operation and the stomach was examined, a large clotting of blood was observed in the upper part of the stomach. The defendant removed these blood clots and, in the course of so doing, discovered a few superficial stomach lacerations which he sutured. These lacerations he determined could not have caused the bleeding. "(I)t was apparent" at this point in the examination, "that a good bit of the bleeding was coming from the esophagus." The defendant requested Dr. Pittman's advice on the use of esophagoscopy (inspection of the esophagus through a lighted tube through which bleeding sites can be visualized) and the use of a Senstaken-Blakemore tube. Dr. Pittman recommended against esophagoscopy until the incision was enlarged. His advice was accepted by the defendant.
While Dr. Pittman was "scrubbing" preliminary to assisting the defendant in an examination of the plaintiff's esophageal area, the defendant, in an effort to stop the flow of blood, attempted without success to insert a Senstaken-Blakemore tube (a device containing two balloons which, when inflated, permits pressure to be applied to the walls of the esophagus or stomach, or both, in order to stop bleeding from small lacerations or bleeding sites on the walls of these parts of the bowel) in plaintiff's abdomen. When Dr. Pittman was in position to assist the defendant during the examination of the esophageal area, the defendant proceeded to enlarge the excision, and opened the lower stomach. Using an esophagoscope, both Dr. Manning and Dr. Pittman checked the esophageal area. They found no lesion or bleeding sites. The defendant then placed the Senstaken tube in the esophagus, inflated it properly and closed the esophagus.
Anxious that he had done everything he could under the circumstances to alleviate the plaintiff's condition, the defendant at this point telephoned Dr. Harry Wellons, a thoracic cardiovascular surgeon at the University of Virginia Hospital at the University of Virginia in Charlottesville, for any "suggestions he might have for management (of plaintiff's case) in case of further bleeding." As the defendant recalled it, Dr. Wellons had "no specific" suggestions "except that we should esophagoscope the patient before carrying out any exploration if the patient bled again ... (and) that we make a tube gastrostomy (that is an opening in the stomach through which we put a tube leading to the outside) to check more easily on any recurrent bleeding and to allow any nasogastric tube to be removed after a day or two." Dr. Wellons, in his testimony said that "(t)he only specific recommendation that (he could) recall (giving the defendant was) the performance of the gastrostomy." The suggestion of Dr. Wellons for the use of a tube gastrostomy was immediately followed.
After the operation on August 18, the defendant followed closely the plaintiff's condition. By August 21, the Senstaken tube had been removed but not the chest tube for drainage. The defendant was preparing to take a short vacation, which had been long planned. Before doing so, he reviewed carefully the plaintiff's condition. No evidence of further bleeding was observed at the time, the "(c)hest (of the plaintiff) was essentially clear," the plaintiff's "(p)rogress (appeared) satisfactory" and there was, in the opinion of the defendant, no "reason to suspect that (the) plaintiff's esophagus might not be intact." The defendant's opinion was confirmed by the nurse's notes, which characterized the plaintiff's condition as "good", though he complained of "being thirsty" and the "(t)ubes (were) bothering him." The defendant concluded under these circumstances and without any evidence of a fistula, that it was advisable to provide the plaintiff with some nourishment. He accordingly directed that the patient be permitted to have "clear liquids with milk." The defendant, in addition, gave orders for the irrigation with sterile saline solution regularly of the gastrostomy tube. After giving these orders at about midday of August 21, the defendant departed for his planned vacation, leaving the patient in the care of his partner, Dr. Todd, an older and more experienced surgeon.
Dr. Todd visited the plaintiff once in the afternoon and a second time in the early evening of August 21. He ordered an x-ray of the patient to be taken the next morning (August 22). At 7:30 on the morning of August 22, Dr. Todd visited the patient again. He noted on this occasion a significant increase during the night in the drainage through the chest tube. He concluded from this that there had developed "a leak through the wound in the esophagus, which was draining to the outside" and, on that basis, ordered all mouth feeding discontinued. The reason for such order was to prevent any leakage of food from the esophagus into the pleural cavity through the cavity. Dr. Todd further ordered that antibiotics be administered in order to overcome any possible infection that might develop. From this point on, the plaintiff's condition remained under constant observation by both Dr. Todd and Dr. Pittman until August 28. By the 26th or 27th it was thought that an infection of the lung had developed and additional antibiotics were ordered.
On August 28, the defendant returned. He became concerned when he visited the plaintiff that the latter's condition might be adversely affected by malnutrition. He hesitated to use intravenous feeding at the time because of the difficulty of hyperalimentation with all the chest drainages and the continued openings in the plaintiff's chest and abdomen. He determined under the circumstances to permit gastostomy feeding. He explained that it was important to feed the plaintiff since "one of the main ways in which people get over infections and heal fistulas, despite the continuing infection, is to have adequate nourishment." At the same time, he ordered an x-ray, which indicated that there was continued leakage. Grape juice was substituted in the feeding in order to confirm this indication of continued leakage. A constant x-ray was made and plaintiff was given albumin. Other x-rays were taken in a continuing effort to localize empyema (infection), but without success.
During all this period the defendant, Dr. Todd and Dr. Pittman were repeatedly seeing the plaintiff and joining in prescribing a steady procession of treatment. The chest tube used for drainage was regularly irrigated and the plaintiff's dressing was systematically changed either by the nurses or by the defendant himself. Finally, on September 15 with plaintiff's condition appearing to deteriorate, the defendant requested and Dr. Wellons agreed to accept the plaintiff at the University Hospital in Charlottesville. The first thing that Dr. Wellons did, after the plaintiff's arrival at the University hospital, was to make sure the "fistula was not (still) present." He did this "by use of a dye marker," in much the same manner as the defendant had earlier used grape juice for the same purpose. He followed this test up with "a barium swallow," used in the same way. Neither confirmed "the presence of a fistula at that time." Chest tube replacements were made, a regimen of antibiotics was begun and feeding by mouth begun. During this time, the University hospital's treatment "was quite similar" to that which the record indicated had been followed at King's Daughters' Hospital, though, as Dr. Wellons explained, "one would have to realize that some of the elements were different, in that we (meaning Dr. Wellons and his associates) knew shortly after his admission that he did not have a fistula, so that would allow different options as far as alimentation, et cetera, but in terms of treatment of the chest, the empyema, it was simply a matter of other attempts to establish drainage and leading up to the operation."
When it became evident that "satisfactory drainage of the chest" was not being achieved, an exploratory chest operation was performed on September 29, two weeks after the plaintiff's admission to the University Hospital. This was, in Dr. Wellons' words, "an extremely difficult operation," in the course of which "many areas of pus (infection) that were not being drained by the tubes that we had put in" were discovered. These "areas of pus" or infection "had severely damaged the lower lobe of the lung," necessitating the removal of such lower lobe. As a "secondary effect of the accumulation of blood after the operation in the space," the chest became infected, winding up "with an empyema, or infection in the pleural space, which required, before his discharge on his first admission to the University (hospital), open drainage of this space." He was discharged from the hospital on November 2 with drainage tubes in his chest space.
On March 7, the plaintiff was readmitted to University hospital because he "was showing some signs of continued infection, pulmonary infection." The chest was opened. The remainder of the left lung was found to be "pretty much destroyed by infection" and was removed. Later, the customary Claggett's procedure (a process of sterilizing against infection the space created by the removal of the lung), used whenever a lung is removed, was performed. At the time of trial, this procedure has been repeated some four times but Dr. Wellons expressed encouragement that it had been "seven months now without any, apparently without any (further) problems." Subsequent to the Claggett's operation, the plaintiff filed this malpractice suit.
A prima facie case of medical malpractice such as the plaintiff asserted "must normally consist of evidence which (1) establishes the applicable standard of care, (2) demonstrates that this standard has been violated, and (3) develops a causal relationship between the violation and the harm complained of." Kosberg v. Washington Hospital Center, Inc., 394 F.2d 947, 949 (D.C.Cir.1968); Luna v. Nering, 426 F.2d 95, 98 (5th Cir. 1970); Rogers v. Okin, 478 F.Supp. 1342, 1384 (D.Mass.1979). What is such standard of care, whether it has been violated, and whether such violation is the proximate cause of plaintiff's injury-in short, the substantive elements of a medical malpractice suit-are all questions to be determined by state law in a diversity action, Hoyle v. Southern Bell Tel. & Tel. Co., 474 F.Supp. 1350, 1356 (W.D.N.C.1979), aff'd 631 F.2d 728 (4th Cir. 1980); Union Live Stock Sales v. Baltimore & O. R. Co., 409 F.Supp. 50, 53-54 (N.D.W.Va.1976, Merhige, J., by designation). On the other hand, whether there is sufficient evidence to create a jury issue of those essential substantive elements of the action, as defined by state law, is controlled by federal rules, Bryan v. Merrill Lynch, Pierce, Fenner & Smith, 565 F.2d 276, 281 (4th Cir. 1977); Wratchford & S. J. Groves & Sons Company, 405 F.2d 1061, 1066 (4th Cir. 1969); Owens v. International Paper Co., 528 F.2d 606, 609 (5th Cir. 1976).1
Since this action arose prior to July 1, 1976, the applicable standard of care required under Virginia law was that recognized prior to the enactment of § 8.01-581.20, Virginia Code (1981 Supp.), Noll v. Rahal, 219 Va. 795, 250 S.E.2d 741, 746 (1979), Maxwell v. McCaffrey, 219 Va. 909, 252 S.E.2d 342, 345 (1979).2 Under that rule, a physician or surgeon was required to "exhibit only that degree of skill and diligence employed by the ordinary, prudent practitioner in his field and community, or in similar communities, at the time." Reed v. Church, 175 Va. 284, 8 S.E.2d 285, 288 (1940); Maxwell v. McCaffrey, supra, 252 S.E.2d at 345; Easterling v. Walton, 208 Va. 214, 156 S.E.2d 787, 790 (1967).3 And such standard of care is to be established by expert testimony. Nor is this standard violated "because an expert disagrees with a defendant as to what is the best or better approach in treating a patient. Medicine is an inexact science and eminently qualified physicians may differ as to what constitutes a preferable course of treatment. Such differences as to preference do not amount to malpractice. To constitute malpractice, the proffered expert must testify clearly that there has been a departure from acceptable medical standards," as followed by "ordinary, prudent practitioners in (the defendant's) field and community, or in similar communities." Rogers v. Okin, supra, 478 F.Supp. at 1385; Reed v. Church, supra, 8 S.E.2d at 288.
In order to establish a standard of medical care as well as a violation of such standard, expert testimony is required.4 In order to qualify as an expert competent to provide such testimony, the witness must show familiarity with the "degree of skill and care" employed by the ordinary, prudent practitioner in the relevant field and community. Maxwell v. McCaffrey, supra, 252 S.E.2d at 345; Noll v. Rahal, supra, 250 S.E.2d at 744-45; Little v. Cross, 217 Va. 71, 225 S.E.2d 387, 390 (1976); Bly v. Rhoads, 216 Va. 645, 222 S.E.2d 783, 788-89 (1976); Murphy v. Dyer, 409 F.2d 747, 749 (10th Cir. 1969). And this requirement has been strictly applied in Virginia. In Bly v. Rhoads, supra, 222 S.E.2d at 788-89, the expert was a recognized authority on the national standards relevant to the particular medical area involved but his want of familiarity with practice of medicine in Prince William County, where the action arose, disqualified him as an expert witness. In Little v. Cross, supra, 225 S.E.2d at 389, the expert witness practiced internal medicine in Washington and taught that subject at Howard University College of Medicine. He was disqualified in a medical malpractice suit arising in Norfolk because "his knowledge of the professional standards required of ear specialists in Norfolk in 1968" was not sufficient. Id. at 390. In Noll v. Rahal, supra, 250 S.E.2d 741, the Court refused to consider "the medical communities of Richmond-Henrico and Fairfax County" as "similar" within this rule of standard of care without specific evidence of such similarity. Id. at 744, n.2. Nor are these Virginia cases unusual in their strict application of the locality rule. Thus, in Murphy v. Dyer, supra, 409 F.2d at 749, the witness was "a renowned anesthesiologist," who had "written texts on the art, science and practice of anesthesiology" which were "the standard texts in (that) speciality in medical schools." But, in determining his qualification to testify as an expert on the standard of care to be observed by an anesthesiologist practicing in Colorado Springs, Colorado, the question was "not whether he was a renowned expert but whether, as such, he was familiar with the standards of practice and particularly the techniques employed in Colorado Springs or similar communities." Applying that test, the district court disqualified him as an expert witness because of a lack of familiarity with local standards. That ruling was affirmed on appeal. In essence, then, the standard of due care by a defendant in a medical malpractice case under Virginia law, as applicable to this case which arose before July 1, 1976, is the one followed by an "ordinary, prudent practitioner" in the same field and community, or similar community, as the defendant, as necessarily established by expert testimony. Only if the practice or procedure followed by the defendant in the particular situation departed from that customary practice, as established by competent expert testimony, is the defendant to be charged with a violation of the required standard of care, i.e., negligence.
Assuming that a plaintiff has established a prima facie case of a departure by the defendant in his treatment of the plaintiff from that followed "by the ordinary, prudent practitioner in his field and community, or similar communities," the plaintiff must next satisfy by his proof the causation requirement. While there are two tests adopted by the courts for determining causation in this connection,5 it seems agreed by both plaintiff and defendant that the rule in Virginia is the one generally characterized as the "but for" rule as accurately stated in Wells v. Whitaker, 207 Va. 616, 151 S.E.2d 422, 428 (1966), and recently reiterated in Coleman v. Blankenship Oil Corp., 221 Va. 124, 267 S.E.2d 143, 147 (1980),
"The proximate cause of an event is that act or omission which, in natural and continuous sequence, unbroken by an efficient intervening cause, produces that event, and without which that event would not have occurred."
This rule as to proximate cause
"encompasses two elements (1) cause in fact, and (2) foreseeability .... Both elements must be present .... Cause in fact as an element of proximate cause means that the negligent act or omission was a substantial factor in bringing about the injury and without which no harm would have been incurred .... Foreseeability is satisfied by showing that the actor as a person of ordinary intelligence should have anticipated the danger to others by his negligent act ...."
Speer v. United States, 512 F.Supp. 670, 678 (N.D.Tex.1981).
But the plaintiff argues-and this is actually the heart of his appeal-that the "but for" rule, while normally controlling, is subject to an exception in "one situation: where two causes concur to bring about an event and either alone would have been sufficient to bring about an identical result." This exception, pressed by the plaintiff, finds its basis in a footnote in Wells, 151 S.E.2d at 428, n. 1, which, in turn, relies on Prosser, Torts, 243 (3d ed. 1964). However, as Prosser at 245 pointedly observed, the plaintiff under this exception "must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a substantial factor in bringing about the result. A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant (Italics added)"6 And there are many examples of the application of this rule in medical malpractice cases, that, where there are a number of possible causes for a plaintiff's disability, the physician's negligence will be regarded as the proximate cause only if the evidence is that it is "more likely" or "probable" that his negligence was such cause than the other possible causes. Illustrative of these examples is Dick v. Lewis, 506 F.Supp. 799, 805 (D.N.D.1980), aff'd 636 F.2d 1168 (8th Cir. 1981).
In Dick, the question in issue was whether the failure of the defendant physician to perform a caesarean section was a proximate cause of the plaintiff's cerebral palsy. In dismissing plaintiff's complaint, the Court said:
"It has not been shown by a fair preponderance of the evidence that Steven's cerebral palsy would not have occurred if a caesarean section had been performed. Nor has it been shown that failing to perform a caesarean section was a substantial factor in bringing about Steven's condition. In establishing proximate cause, the plaintiff must adduce evidence that shows plaintiff's theory of causation is reasonably probable, not merely possible, and more probable than any other theory based thereon. ... In light of the factual findings of the court, plaintiff has failed to meet this burden. Speculation and conjecture are not sufficient to establish causation.... (Emphasis added)."
In Bryant v. Rankin, 468 F.2d 510, 515 (8th Cir. 1972), another medical malpractice action in which causation was the issue, the Court said:
"(T)he issue of proximate cause is ordinarily for the jury where there is substantial evidence of a defendant's negligence.... But the evidence adduced by the plaintiff must show that 'plaintiff's theory is reasonably probable, not merely possible, and more probable than any other theory based thereon. It is not necessary that the proof be conclusive or exclude every other suggested or possible cause.' "
Again in Walstad v. University of Minnesota Hospitals, 442 F.2d 634, 639 (8th Cir. 1971), which was also a medical malpractice suit, the Court said:
"The plaintiffs of course also have the burden of proof on the issue of the fact of causation and must introduce evidence which affords a reasonable basis for one to conclude that it is more likely than not that defendant's conduct was a substantial factor in bringing about the result. 'In negligence cases and especially in malpractice cases, proof of causal connection must be something more than consistent with the plaintiff's theory of how the claimed injury was caused.' ... Proof of causation cannot rest on conjecture and the mere possibility of such causation is not enough to sustain the plaintiff's burden of proof .... Furthermore, when the causal relation issue is not one within the common knowledge of laymen, causation of fact cannot be determined without expert testimony."
The Virginia decisions are in line with these decisions. Thus, in Dishman v. Pitts, 202 Va. 548, 118 S.E.2d 509, 512 (1961), a medical malpractice case, the Court said "that in order for the plaintiff to prevail the evidence must show something more than that the injuries complained of may have resulted from one of two causes, for one of which the defendant is responsible and for the other of which he is not." In Hunter v. Burroughs, supra, 96 S.E. at 369, the Court used almost verbatim the language from Prosser, quoted supra, holding that, where there are several causes of an injury in a medical malpractice case, one of which may have been the negligence of the defendant, submission of the cause to the jury on causation is proper only if there is evidence that the injury "was more probably due to lack of skill or negligence of the defendant" than to other causes. See also to the same effect, Lane v. Hampton, 197 Va. 46, 87 S.E.2d 803, 805 (1955).
The reason for this requirement in a medical malpractice suit that the physician's action must be shown to be more likely than not to have been a proximate cause of the plaintiff's injury was stated in Karp v. Cooley, 349 F.Supp. 827, 839 and n. 1 (S.D.Tex.), aff'd, 493 F.2d 408, rehearing en banc denied, 496 F.2d 878, cert. denied, 419 U.S. 845, 95 S.Ct. 79, 42 L.Ed.2d 73 (1979):
"In determining proximate cause, the proof must be beyond a showing of possibility that the injuries arose from the defendant's negligence or lack of skill, since a jury may not speculate as to the cause of the injury."Just as negligence or violation of the standard of care must ordinarily rest on expert opinion evidence, so proof of causation-that is that the defendant's negligence was "more likely" or "more probably" the cause of the plaintiff's injury-requires expert testimony.7 The reason for such requirement was stated in 61 Am.Juris.2d § 348, p. 509-10:
"Inasmuch as the causes of the injuries ordinarily involved in malpractice actions are determinable only in the light of scientific knowledge, it has been recognized that expert testimony is usually necessary to support the conclusion as to causation."8
The only exception to this requirement of expert testimony is the unusual case "where the negligence and harmful results are sufficiently obvious as to lie within common knowledge," 61 Am.Juris.2d, § 350, at p. 513, or where the resolution of the issue of negligence and causation "would not extend the jury beyond the range of ordinary lay knowledge and experience," Washington Hospital Center v. Butler, 384 F.2d 331, 336 (D.C.Cir.1967). It is plain that this case under review, described by one of the expert witnesses as one presenting a medical condition of "notorious difficulty," is not one within "the range of ordinary lay knowledge and experience" and accordingly depended necessarily for its establishment on expert testimony relating both to standard of care and causation.
Moreover, in order to qualify on causation, the opinion testimony of the medical expert may not be stated in general terms but must be stated in terms of a "reasonable degree of medical certainty." Crawford v. Quarterman, 210 Va. 598, 172 S.E.2d 739, 744 (1970); Lindsey v. The Clinic for Women, 40 N.C.App. 456, 253 S.E.2d 304, 311 (1979). Only if the opinion evidence on causation, as offered by the plaintiff, rises to the level of a "reasonable degree of medical certainty" that it was more likely that the defendant's negligence was the cause than any other cause, is there sufficient evidence on causation to permit jury submission of causation. The basis for requiring such specificity in the opinion of the expert witness in a medical malpractice suit was clearly put in an often cited case, McMahon v. Young, 442 Pa. 484, 276 A.2d 534, 535 (1971):
" ' * * * (T)he expert has to testify, not that the condition of claimant might have, or even probably did, come from the accident, but that in his professional opinion the result in question came from the cause alleged. A less direct expression of opinion falls below the required standard of proof and does not constitute legally competent evidence (citing cases).' (Quoting from Menarde v. Philadelphia Trans. Co., 376 Pa. 497, 103 A.2d 681 (1954) ).
"The issue is not merely one of semantics. There is a logical reason for the rule. The opinion of a medical expert is evidence. If the fact finder chooses to believe it, he can find as fact what the expert gave as an opinion. For a fact finder to award damages for a particular condition to a plaintiff it must find as a fact that that condition was legally caused by the defendant's conduct. Here, the only evidence offered was that it was 'probably' caused, and that is not enough. Perhaps in the world of medicine nothing is absolutely certain. Nevertheless, doctors must make decisions in their own profession every day based on their own expert opinions. Physicians must understand that it is the intent of our law that if the plaintiff's medical expert cannot form an opinion with sufficient certainty so as to make a medical judgment, there is nothing on the record with which a jury can make a decision with sufficient certainty so as to make a legal judgment."9
And the plaintiff in this case seems to have recognized that, for the medical opinion of his expert witness to meet the legal requirements for admissibility on causation, that opinion had to be couched, as Lindsey puts it, in terms of a "reasonable degree of medical certainty" that it was more likely than not that the defendant's action was the cause of plaintiff's injury. This is plain from the form in which plaintiff's counsel phrased his hypothetical questions on causation as directed by him to his expert witness, Dr. McGuire. In all of these questions, counsel requested the expert's opinion, expressed "with a reasonable degree of medical certainty" on whether it was "more likely than not" that it was the defendant's action which "caused the plaintiff's lung infection." It would appear, therefore, that the authorities establish, and the plaintiff accepts, the rule that only if the opinion evidence on causation, as offered by the plaintiff, rises to the level of a "reasonable degree of medical certainty" that it was more likely that the defendant's negligence was the cause than any other cause, is there sufficient evidence on causation to permit jury submission on causation.
The plaintiff in this case has proffered expert testimony, which he contends established both a violation of the appropriate standard of care on the part of the defendant in his treatment of the plaintiff and that such violation was the proximate cause of his loss of a lung. Other than the defendant himself, who was examined as an adverse party, the plaintiff proffered but two medical witnesses on these points. The first of these was Dr. Wellons whose testimony was primarily directed towards establishing his own treatment of the plaintiff after the latter's transfer to the University Hospital. There is nothing in his testimony which would support a claim of negligence or of causation in connection with the defendant's treatment of the plaintiff. The other medical witness was Dr. McGuire, the head of surgery at the Medical College in Richmond. It is on his testimony and his testimony alone that the plaintiff chose to rely to establish the several elements of his cause of action.
Unlike Dr. Wellons, Dr. McGuire had not seen the plaintiff during his sickness and he rested his conclusions on a review of the hospital records made on the eve of the trial itself and on hearing the defendant's testimony at trial. He began his testimony by characterizing the plaintiff's case as one presenting "a unique (medical) situation," one which he (the witness) had not experienced "directly or through the people to whom (he) delegate(d) surgery or through what (he had) read," and one "which arises once or twice in a lifetime with bad luck," and one with respect to which the answers as to correct procedure are not to be derived from "what textbooks say should be done." He went on to add that he had "never seen a case identical to this: (he had) never read of a case identical to it, so there (was) basically no precedent," "no published rules for such a situation." In repeating this thought, he said that "there was no precedent to this case, because all the rules were off and there was nothing to govern management except assessing the risks and values and options and taking the best-the least risks," recognizing that "(a)ll (the options) are very high-risk operations," and "at this point are poor." In short, then, the defendant, in the opinion of Dr. McGuire, was not confronted in his treatment of the plaintiff with a normal surgical operation but with a "unique case" of "notorious difficulty"10 which a reasonably competent surgeon would not have likely seen or read of before this patient came under his care and in the treatment of which the surgeon would have to improvise his actions as best he could.
The witness first addressed the standard of care followed by the defendant in his treatment of the plaintiff. In so doing he said that his testimony both with respect to standards of care and of causation was based on "a national standard of orthodoxy" though, after some questioning by the district judge, he testified he was familiar "with the standard of care, the learning skill and care possessed and practiced in the hospital, ... in Winchester (Va.)," which he regarded as "similar to (the hospital in) Staunton." He expressed the opinion that the operation performed by the defendant on the 18th and the use of the Senstaken-Blakemore tube "met the expectations of the good practice of general surgery." He then identified three areas where the defendant's actions did not in his opinion accord with the appropriate standard of care. The first related to the defendant's authorization of "liquids" administered by mouth to the plaintiff on August 21, four days after "esophageal surgery." The witness testified such action departed from the rule to be followed in connection with mouth feeding after esophageal surgery, which was:
"The rule says, or advice as published theories-I can't-The most conservative practice is the one that we employ at the Medical College of Virginia of not allowing the patient to have anything by mouth for the first ten days following the operation, and then feeding of contrast material, radio-paque material in the X-ray Department, to demonstrate the integrity of the esophageal wound before feeding the patient. That's probably the ultimate in conservatism. (Italics added)."
The witness added that there was a middle ground suggested in the American College of Surgeons' Handbook on Post-Operative Care, which apparently suggested that mouth feeding might be permitted on the "sixth day" after such operation. When pressed, however, by the district judge to respond more positively, the witness first said, "I don't want to be arbitrary about it (i.e., when to authorize mouth feeding) because the variety of-There's a range-." Expressing further dissatisfaction with the witness' response, the district judge pointedly inquired of the witness: "... what would be generally considered to be good practice in Staunton or a similar community in 1972 (in this regard)?" To this positive question, the witness responded: "I would say the best practice in Staunton would be what we do at the Medical College," a practice which he had earlier identified as "the ultimate in conservatism. (Italics added)."
It is, to say the least, doubtful that such testimony was sufficient to make a jury issue of whether the authorization of mouth feeding of "liquids" on August 21 was a violation of the standard of care as fixed by Virginia law. At no point did the witness testify to either the "customary" or "normal" procedure followed by a practitioner of surgery in a hospital such as that in Staunton or a similar community. His test, by which he would find negligence, involved what he himself declared to be the "most conservative" procedure, as followed at his hospital, not the procedure ordinarily followed in hospitals similar to the Staunton hospital. Cf., Rogers v. Okin, supra, 478 F.Supp. at 1385. The plaintiff, however, seems to have passed over this point and to have concentrated on his causation position. We shall, therefore, assume without actually deciding that the witness' testimony was sufficient to have made a jury issue of whether the mouth feeding on the 21st was a departure from the acceptable standard of care followed "by the ordinary, prudent practitioner in (the defendant's) field and community, or in similar communities, at the time."
The witness raised an objection, also, to feeding later on the 28th through a gastrostomy tube, suggesting that this was another departure from the standard of care required. However, the witness was unwilling to testify that such a procedure would be likely to be understood as improper by a surgeon practicing in Staunton. When asked by plaintiff's counsel, "(w)ould a surgeon in 1972, an average surgeon exercising the standard of care that we have used earlier, be expected to know that gastrostomy tube feedings might wind up in the chest cavity through an esophago-pleural fistula?" The witness answered:
"That's really difficult for me to answer, because the circumstance arises-again, answering in terms of Staunton-the circumstance arises once or twice in a lifetime at most with bad luck. I'd add that it's published that it does; it is taught that it does, but to read those publications and to relearn it is very infrequent."
After this answer, plaintiff's counsel inquired of the witness if he had made "a review of the literature available generally to physicians and surgeons in community care hospitals in 1972 regarding management of the esophago-pleural fistula," and the witness replied, "(n)ot a thorough review." At this point, the plaintiff's counsel abandoned any further interrogation of the witness on gastrostomy tube feeding, apparently assuming that the witness was not in a position to testify that, under the circumstances of this case, gastrostomy tube feeding would have been recognized as a departure from the standard of care to be charged against a surgeon practicing at Staunton.
There was, also, some discussion by the witness of what he described as "inadequate drainage." It was the witness' opinion that "drainage from the pleural space is difficult" and, to be effective, "the drain has to be fairly close to the fistula." He gave the opinion that the drainage was, "ineffective" in this case but he was indefinite on the basis for such opinion. It seems that, "in retrospect and review," he reached his opinion because of the "passification" of plaintiff's chest. But without indulging in retrospection, the witness conceded that "the adequacy of drainage" could have been determined accurately by the X-rays in the case. The witness, however, had not examined the X-rays nor had plaintiff's counsel asked him to review the X-rays. In addition, at no time in his testimony in connection with drainage was the witness interrogated on the proper standard of care to be expected of a surgeon in Staunton in connection with the "difficult" problem of drainage in this case. The nearest plaintiff's counsel came to this was in response to this question:
"What could have been done by a surgeon exercising ordinary and reasonable skill, care and diligence to prevent the drainage at the point where it was discovered that not only food was coming out through the fistula and thence through the drainage tube, but also that there was some bloody material coming through the drainage tube?"11
The witness never answered the direct question addressed to him but responded that "the patient should (have been) reoperated on, the chest opened and the esophagus sutured and the tube replaced close to the closure but not on it." This answer obviously was not related to the adequacy of the drainage per se. Nor for that matter was the question couched in the proper form to elicit an answer conforming to the Virginia standard of care in effect at the time this action originated or was tried.
The final claim of a factual violation of the surgeon's duty of care in this case relates to the defendant's failure to reoperate on August 22 when renewed bleeding was discovered in the drainage.12 Dr. McGuire testified that it was "generally advocated" that a reoperation in such a case should be tried. Defendant's counsel, however, inquired what was the likelihood of success in such a reoperation. The witness was restrained in his reply; he contented himself with declaring merely that there was "a possibility" of success. His actual answer was:
"Well, there's a possibility that it can be closed and it is generally advocated that an attempt be made to close it, excepting the fact that a certain proportion, probably roughly half, will releak with a smaller leak than they had the first time.
"Q. So there's a high possibility of it releaking. There's also a high possibility that the tissue is just not sensitive to hold sutures?
"A. That's correct."
This answer plainly was not sufficient to establish that a surgeon of ordinary skill and prudence, practicing in Staunton, would have followed any such practice, which the witness says is "generally advocated" in cases already characterized by the witness as "unique" and without "precedent." For that matter there was no evidence that any surgeon in the Staunton area had ever encountered a medical problem such as that presented by plaintiff. Actually, the witness himself never testified that he had confronted such a problem. It is difficult to see how this evidence established a standard of care applicable to this case under Reed v. Church, supra, 8 S.E.2d 288.
Such was the evidence of negligence by which the plaintiff sought to satisfy his burden of showing that, in this unusual and unique medical situation, in which the surgeon, in his actions was without any precedent as a guide and was forced to improvise as best he could among a number of treatment options all of which involved high risks and none of which assured success, the defendant had not met the standard of care as mandated under Virginia law. However, as we have said, the real focus on the argument in this court as it was in the district court was not on the issue of negligence but on the presence or absence of sufficient evidence of causation, as defined by Virginia law, to require submission of the cause to the jury, and we proceed to that issue, assuming without deciding, that there was sufficient evidence of negligence on the part of the defendant.
As we have said, the plaintiff sought to establish causation through the testimony of Dr. McGuire. Only if that testimony provides evidence sufficient to make the issue of causation one for jury submission can the plaintiff complain of the district court's ruling. In an effort to meet that requirement, the plaintiff addressed a number of hypothetical questions to the witness, which, together, covered all of plaintiff's claims of negligence on the part of the defendant pressed by the plaintiff at trial. These answers to the hypothetical questions constitute the entire substantive evidence of causation and, unless they measure up to the required standard, there was not sufficient evidence of causation and the direction of verdict for the defendant on that ground was proper.
With reference to negligence in permitting mouth feeding on August 21, as a basis for a finding of causation, the plaintiff directed this question to the witness:
"Based upon your expertise, as well as your knowledge of this case, can you state that it is more likely than not that the food coming through the fistula, with accompanying bacteria contamination, caused the plaintiff's lung infection?"
The witness' initial answer was:
"No, because there is the, you know-The fistula alone without food is the cause of infection or cause of empyema, which can go into bronchopleural fistulas. It could have happened without the-if he hadn't been fed. I think the likelihood was greater as a result of feeding, but by increasing the likelihood, I can't say that was the cause. The food can't be the cause, because it just increased the likelihood."
He went on to amplify this answer:
"I think the lung infection is caused by the fistula and that saliva that's gathered here is whatever happens to be in the esophagus. The fistula is caused by the physical properties of the esophagus and the balloon combined. The feeding may have caused it to be manifested a little sooner, may have spread it a little wider, but the contribution of feeding was not the major contribution. The whole outcome may have developed as it did with no feeding. So I can't say that the feeding was-The feeding probably made it manifest earlier, may have made the space larger, disseminated the infection in the lung, pleural cavity, maybe a little bit farther, or could have occurred with saliva gastric juices, and so forth."
The witness was, also, examined by the District Judge with reference to the alleged error in failing to reoperate or to change the drainage oftener as a basis for a finding of causation. The question addressed to the witness on this aspect of the case was:
"Suppose he (i.e., the defendant) had operated again and suppose that he had changed the drain back, can you state with a reasonable degree of medical certainty that this infection would not have occurred in the lung anyway?"
To that question, Dr. McGuire answered:
"I cannot say it with certainty that it would not have occurred."
When the District Judge requested the witness to elaborate on this answer, Dr. McGuire testified:
"Well, I can put it in terms of positives instead of some negatives. I could say that the infection might have occurred in the lung; he might have had an emphyema, a bronchopleural cutaneous fistula even had he been managed ideally according to the best surgical dictums of re-operation and replacement of drains; he still might have developed the pleural space infection and the infection of the lung subsequent, sir."
Finally, the plaintiff's counsel turned to the improper drainage claims and asked the witness this question:
"If optimum drainage had been put in at the time of the operation, that is, as close as possible to the location of a potential fistula, (could he) state with a reasonable degree of medical certainty that the infection could have been managed by antibiotic regimen and nothing by mouth until a fistula, if any were going to develop, had healed spontaneously?"
His answer was:
"No, not with a reasonable degree of certainty."
He went on to add, "(i)t might have been." This answer apparently did not satisfy counsel and, after repeating the witness' answer, he rephrased the question:
"Are you stating with a reasonable degree of medical certainty, the lung infection would-if developed, would have been manageable and is not threatening alone?"
The witness' answer was:
"No, not with a reasonable degree of certainty that it-I-You know, if you put the (drainage) tube in right at the time of an operation just perfectly as close as you can but not touching; assuming you're going to get a breakdown, hoping that the breakdown will spill right out of the esophagus, into the mouth of the tube and out to the chest wall, twenty to thirty percent chance it'll work."13
It is perfectly clear from this summarization of the pertinent expert testimony of Dr. McGuire that the latter at no time gave an opinion that, based upon reasonable medical certainty, the plaintiff's injury would not have resulted "but for" those actions of the defendant which Dr. McGuire faulted, nor could it be said that he ever testified that "without (the defendant's challenged actions) that (infection of the plaintiff) would not have occurred," or that it was "more likely" that the infection was caused by the defendant's alleged negligence than by other causes for which the defendant was not responsible.14 Yet, without such evidence, it would have been necessary, in order for the jury to find causation on the basis of the record, to have proceeded upon pure "speculation and guess work" without any supporting testimony establishing causation under the standard fixed by the Virginia law. The District Judge correctly perceived this and directed a verdict in favor of the defendant. We find no error in such ruling and accordingly affirm the judgment in favor of the defendant.
The Court in Owens pithily stated the principle thus:
"What they (the plaintiffs) needed to prove to make a jury case is, of course, to be measured by (state) substantive law. Whether they proved such a case is a matter of federal procedural law .... (Italics in opinion)"
Since the trial of this case Virginia law has by statute changed the definition of standard of care in medical malpractice suits to provide that such standard "shall be that degree of skill and diligence practiced by a reasonably prudent practitioner in the field of practice or specialty in this Commonwealth; ... provided, however, that the standard of care in the locality or in similar localities in which the alleged act or omission occurred shall be applied if any party shall prove by a preponderance of the evidence that the health care service and health care facilities available in the locality and the customary practices in such locality or similar localities give rise to a standard of care which is more appropriate than a statewide standard...." § 8.01-581.20, Code of Virginia (1980 Amend.)
In Easterling the Court said:
"A physician or dentist is not an insurer of a cure, and an unfavorable result may be attributable to a cause for which he was not responsible and may happen notwithstanding the exercise of a very high degree of care and skill. As a general rule, all that the law demands is that a physician or dentist exercise that degree of skill, care, knowledge and attention ordinarily possessed and exercised by members of the profession in his community under like circumstances; and as to those matters involving professional skill and attention, unskillfulness and negligence must be shown by the testimony of those learned in the profession." (p. 790)
Easterling v. Walton, supra, 156 S.E.2d at 790; Hunter v. Burroughs, 123 Va. 113, 96 S.E. 360, 369 (1918); Speer v. United States, 512 F.Supp. 670, 675 (N.D.Tex.1981); Rogers v. Okin, supra, 478 F.Supp. at 1384; 61 Am.Juris.2d § 348, pp. 509-10
The standard statement of the rule is the language of Judge (later Chief Justice) Taft in Ewing v. Goode, 78 F. 442, 444 (C.C.Ohio 1897), a medical malpractice action involving the application of the scintilla rule in determining sufficiency of evidence:
"... when a case concerns the highly specialized art ... with respect to which a layman can have no knowledge at all, the court and jury must be dependent on expert evidence. There can be no other guide, and, where want of skill or attention is not thus shown by expert evidence applied to the facts, there is no evidence of it proper to be submitted to the jury. Again, when the burden of proof is on the plaintiff to show that the injury was negligently caused by defendant, it is not enough to show that the injury, together with the expert opinion that it might have occurred from negligence and many other causes. (Emphasis added)"
In Dick v. Lewis, 506 F.Supp. 799, the Court said:
"Courts have generally applied one or both of two tests in determining whether factual causation exists. Under the 'but for' or 'sine qua non' rule, the defendant's conduct is not a cause of the event if the event would have occurred without it.... The other test for determining causation in fact is the 'substantial factor' rule. Under it, the defendant's conduct is a cause of the event if it was a material element and a substantial factor in bringing it about."
See, also, Ewing v. Goode, supra, 78 F. at 444
Hegger v. Green, 646 F.2d 22, 29 (2d Cir. 1981); Speer v. United States, 512 F.Supp. at 675; Rogers v. Okin, 478 F.Supp. at 1385; Taber v. Riordan, 83 Ill.App.3d 900, 38 Ill.Dec. 745, 403 N.E.2d 1349, 1353 (1980); Carson v. Maurer, 120 N.H. 925, 424 A.2d 825, 832 (1980); 61 Am.Juris.2d, § 348, pp. 509-10
See, also, Annotation, "Proximate Cause-Malpractice Actions," 13 A.L.R. 11 at 31
In this case, the Court referred to the fact that the expert witness, a physician testifying on causation of plaintiff's injury, used at various times this language:
"(the automobile accident) is consistent with that sort of injury";
"There is probably a cause and effect relationship," and
"My opinion is there is an arthritis which is consistent with traumatic arthritis."
The Court found none of these phrases sufficient to support submission of causation to the jury, and in so doing employed the quoted language. (p. 535)
Cf., Sponaugle v. Pre-Term, Inc., 411 A.2d 366, 368 (D.C.App.1980), in which the plaintiff in a medical malpractice case objected to the use by the trial judge of the term "a reasonable medical certainty," contending that the correct term in this context was "a reasonable medical probability." The Court found no reason to resolve the issue since under either definition the result would have been the same. The Court did say, however:
"In a medical malpractice case, where legal and factual causation are major issues, there may well be a sound basis for the requirement that expert medical testimony be given in terms of 'reasonable medical certainty.' However, in some situations, such as where factual causation is indirect or the doctrine of res ipsa loquitur applies, that standard might be unduly restrictive."
The case under review is like Sponaugle in that, under either term, whether "certainty" or "probability" is used, the result would be the same, as we later point out.
This was Dr. Wellon's description of the medical problem presented by plaintiff's conditions
The question seemingly refers to plaintiff's condition when Dr. Todd examined him on the morning of August 22
Parenthetically, it should be noted that the defendant was not present when this condition developed. At that time, he had turned the case over for the time being to Dr. Todd. The defendant does not appear to rely on this fact, and we merely note it without ascribing any particular relevance to it in view of the defendant's failure to press the point
During his cross-examination of Dr. Wellons on this aspect of the case, counsel for the defendant inquired whether, in his deposition taken prior to trial, the witness had testified that "once a fistula had developed" in the esophagus, "it would be foolhardy to attempt to close it surgically." Before the witness could answer, the District Judge interrupted to suggest that such evidence was immaterial. Counsel for the defendant did not pursue the subject with the witness nor did he offer the deposition in evidence. There, however, did not appear to be any dispute over the testimony as it appeared in the deposition.
The "twenty to thirty per cent chance," of no infection occurring in any event means that the chances of infection in the plaintiff's case under ideal conditions, including no feeding by mouth or gastrostomy tube, are seventy to eighty per cent
The chances that the infection would have occurred without any negligent conduct on the part of the defendant were given by Dr. McGuire as 70 to 80 per cent; the likelihood that the defendant's negligence could have caused it did not rise beyond 15 to 25 per cent in the witness' opinion. That does not meet the test for causation. How, under those assumptions, could it be said that the infection was "more likely" or "more probably" due to some action of the defendant than any other except by pure speculation and conjecture? Neither under the state nor federal rule does such proof suffice to make causation a jury issue. That was early declared by Judge Taft in Ewing, supra, 78 F. at 444, in language quoted and approved by the Virginia court in the leading case of Hunter v. Burroughs, supra, 96 S.E. at 369, where Judge Taft was determining the sufficiency of the evidence under the scintilla rule


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Philosophy Publishing and Europe's New Open Access Requirement
. September 12, 2018 at 10:19 am 13
Last week, eleven national funding agencies in Europe, along with the European Commission and the European Research Council, announced the creation of "cOALition S," which set forth what is being called "Plan S," an initiative requiring that any academic publications, including books, resulting from research they fund "be published in compliant Open Access Journals or on compliant Open Access Platforms."
At the end of this post I ask about the implications of Plan S for academic philosophy, but first let's get some details on the table.
In a preamble to the plan, the funders state:
Publication paywalls are withholding a substantial amount of research results from a large fraction of the scientific community and from society as a whole. This constitutes an absolute anomaly, which hinders the scientific enterprise in its very foundations and hampers its uptake by society…
We recognise that researchers need to be given a maximum of freedom to choose the proper venue for publishing their results and that in some jurisdictions this freedom may be covered by a legal or constitutional protection. However, our collective duty of care is for the science system as a whole, and researchers must realise that they are doing a gross disservice to the institution of science if they continue to report their outcomes in publications that will be locked behind paywalls.
We also understand that researchers may be driven to do so by a misdirected reward system which puts emphasis on the wrong indicators (e.g. journal impact factor). We therefore commit to fundamentally revise the incentive and reward system of science, using the San Francisco Declaration on Research Assessment (DORA) as a starting point.
The deadline for authors and publishers to comply with Plan S is January 1, 2020 for articles "but it is understood that the timeline to achieve Open Access for monographs and books may be longer." More European funding agencies are expected to sign on in the coming months.
Plan S does not allow publishers to satisfy its requirements by making research open access months after their initial publication; research must be OA upon publication. And, as Science Magazine reports, the plan "won't allow publication in so-called hybrid journals, which charge subscriptions but also make individual papers OA for an extra fee."
Here are some other elements of the plan:
Authors retain copyright of their publication with no restrictions. All publications must be published under an open license, preferably the Creative Commons Attribution Licence CC BY. In all cases, the license applied should fulfil the requirements defined by the Berlin Declaration;
Where applicable, Open Access publication fees are covered by the Funders or universities, not by individual researchers; it is acknowledged that all scientists should be able to publish their work Open Access even if their institutions have limited means;
When Open Access publication fees are applied, their funding is standardised and capped (across Europe);
The 'hybrid' model of publishing is not compliant with the above principles;
The Funders will monitor compliance and sanction non-compliance.
What are the implications of Plan S for academic philosophy?
There are a number of questions here. For example: How will Plan S affect where philosophers choose to study and work? How will it affect where they publish? How will it affect the perception of existing journals and existing presses? Will existing "prestige" journals switch to open access? Will we see the creation of more open access philosophy journals? Will we see the creation of reputable open access book publishers? How will Plan S change the funding landscape? How will it affect research and publishing outside of Europe?
Discussion welcome.
(Thanks to Anco Peeters for the suggestion to post about this.)
Categories Publishing
Tags academicjournalsopen accessphilosophypublishing
It seems to me the most radical aspect of this is the alleged ban on publishing in hybrid journals.
Is there some obvious reasons why publishers won't get around this by splitting reputable journals into a closed-access and an open-access one? So eg Philosophical Studies becomes Philosophical Studies A and Philosophical Studies Open.Report
Jon Light
I had something submitted before this rolled out, which wasn't accepted until accepted after. Then I got an offer of publication, along with a $1500 bill. Not sure if that's a win or a loss. Pretty sure I wouldn't have submitted there if I knew, but wasn't really keen to change courses at that stage.
The other weird feature of that is I had a co-author who actually had the relevant funding, so "we" had to pay the bill, somehow. And it didn't really seem fair to throw it at him–even though he offered–because I'd ultimately benefit from the open access, too. So we split it, which was fine because I had funding, too–albeit from a source not beholden to this stricture. But it does raise interesting issues about co-authorship, when only *some* of the authors are on the hook.
But, aside from that, I don't really see a problem with funding bodies giving us money then saying some of that money needs to go to open access. Obviously we'll just budget that moving forward, so it's not like it's "our" money anyway. Given the relative scales of what the publications are as against what the grants are likely to be, it's also not a super cumbersome line-item (e.g., 1%-3% of total budget, according to the back of my envelope).Report
Michael Kremer
Reply to Jon Light
Jon Light, I don't know where you're located, but in the US, apart from a very few extremely unusual grants, there is no funding for philosophers which covers anything but a part of one's salary for a year's research leave.
I think this is a massive problem. The Europeans are setting up a system that American philosophers can't take part in unless they want to use their own salaries to pay the fees.
Further, if journals were to stop charging libraries for access, there is little likelihood that Universities would turn the savings into some sort of fund for scholars to pay publication fees from.
Not to mention the effect on scholars who are not employed by a University.Report
Reply to Michael Kremer
I'm at an R1 American school. There's a lot more than "a very few extremely unusual grants" available. And it's just false that "there is no funding…which covers anything but a part of one's salary for a year's research leave." My grants do all sorts of things, from course releases to summer funding to graduate student support to whatever else; you can line item about anything you feel like on some of these. There is less available in, say, history of philosophy than other more applied grants (e.g., if you're restricted to NEH), but your post (respectfully) just says a bunch of false things about the funding landscape.Report
Anco
Why would American universities not do this? Would they not want their researchers to publish?Report
Lisa Shapiro
In Canada, several years ago, SSHRC instituted an open access requirement for all articles derived from grant-supported research. It was determined that individuals can satisfy this requirement by depositing their articles in institutional repositories. So university libraries have created databases to contain these articles. The issue is that many journals do not allow for this, so it has been deemed acceptable to post the penultimate MS drafts. The SSHRC support to journals and publications grant stream is now requiring journals to be open access. This has transition costs for some journals, which is currently being negotiated.Report
Philosopher in UK
Reply to Lisa Shapiro
We have something similar in the UK. I wonder if this work-around (sensible as it is from an individual and a university level) kind of takes the teeth out of the open access requirement, and turns it for the most part into a big bureaucratic waste of time and money? I would bet that not a lot of people are finding and reading articles through the institutional repositories. (Though maybe some people find articles on journal websites and then go to the repository to get a free MS word copy.) Anyway, if this kind of thing is the likely institutional response to OA requirements from funding bodies, it might start to seem like the whole effort from the funding bodies (noble though its motivations are) could end up being just another a costly bureaucratic boondoggle… At least that's my worry. Though, who knows, maybe the empirical facts show otherwise!Report
Society can't understand or engage with 99% of academic writing. So, I don't get this concern at all. I don't see how paywalls are withholding research results from the scientific community, as Universities pay to access journals, or at least 99% of the journals that matter. Maybe I'm just ignorant, but the reasons given strike me as nonsense. I suspect what's really going on is that they're working to transfer publication costs to academics. Instead of the Universities being required to pay for journals and books, the academics will be hit with massive publication fees. Beginning of the end folks!Report
Reply to Postdoc
"Society can't understand or engage with 99% of academic writing."
First, the proposal explicitly includes researchers at universities which cannot afford the hefty subscription fees to academic journals. I imagine that there are many such institutions in poorer countries around the world and likely even in richer countries where different universities receive very different levels of funding. Making, for example, medical and social science research available to such institutions would potentially have a large and immediate positive impact.
Second, I think you overestimate the amount of individuals who cannot understand or engage with academic writing. To take philosophy as an example: many papers, like, say, on ethics and political philosophy, can be read by people who finished secondary school and received some form of tertiary education, even if other papers, like on mathematical logic, are too technical. I would be surprised if the same doesn't hold for many papers in the humanities.
"I suspect what's really going on is that they're working to transfer publication costs to academics."
Why would those funding bodies want to transfer costs to academics? Can you give any reason for this? Those funding bodies, which by the way in Europe are largely run by academic researchers themselves, want people to publish. It seems more likely to me that the fees that libraries pay for subscriptions now, will be transferred to funds to allow researchers to publish accepted papers. Or that research proposal will have to include a proposed budget for publications.
"Beginning of the end folks!"
Sure, because every change heralds the apocalypse. It makes me wonder if you're paid by a publishing agency.Report
Addrellim
Reply to Anco
I find it odd to read defences of Plan S on behalf of researchers at poor universities, because one thing the proposal clearly does is to impose on those universities a large new cost: "the OA article processing charges (APC) are to be capped, and paid by funders and universities instead of scientists from their research budgets" (https://forbetterscience.com/2018/09/11/response-to-plan-s-from-academic-researchers-unethical-too-risky/).
Right now a philosopher at a poor institution can get their work published for free. Under this proposal, as far as I can tell, they'd need to scare up some funding in order for that to happen.Report
Leorence
In the olden days, many of a journal's subscriptions were to individuals: professors and graduate students who decided that it was important to them to read what was published in that journal. These decisions reflected their knowledge of the discipline. These people in the discipline drove the market directly, through their subscription decisions.
In more recent years the number of individual subscribers has plunged, probably due to the ease with which anyone affiliated with a university can read almost any article published in any journal, instantly. (In this light I too find the worry about access almost comically overblown.)
But the disciplinarians still drive the market, through their clickings and downloadings. Indirectly though, because there is a new intermediary, the librarians, who look at this usage data to help them decide what to pay for.
Now, whose decisions drive the market under an entirely OA system? Neither individuals nor libraries will pay for subscriptions; all content will be freely available without a subscription. Instead it is the researchers who will pay, with their OA fees. But who gives them the money to do that? The funding bodies.
In this light it is noteworthy that it is apparently funding bodies pressing this proposal (and not, say, learned societies). The worry, vivid to anyone with experience of bureaucracies, is that the OA scheme effectively makes the funding bodies the market drivers: the ones whose decisions determine which journals thrive and which wither. Whether this will be the result depends a lot on details of implementation. E.g. the funding bodies might decide, as part of their campaign against prestige differences among journals, to "count" (in future applications to them) all journal publications the same. This will create a race to the bottom, with new journals arising basically to harvest the OA fees.
The proposal is long on high-minded rhetoric and very troublingly short on consideration of what the results would be if it were implemented.Report
Reply to Leorence
> In more recent years the number of individual subscribers has plunged, probably due to the ease with which anyone affiliated with a university can read almost any article published in any journal, instantly. (In this light I too find the worry about access almost comically overblown.)
I can't help but think this is a bit myopic. Even setting aside those not affiliated with universities, it ignores the huge number of very poor universities that can't afford to subscribe to many well-known journals.Report
"The worry, vivid to anyone with experience of bureaucracies, is that the OA scheme effectively makes the funding bodies the market drivers: the ones whose decisions determine which journals thrive and which wither."
While the (governmental) funding bodies manage the funds, it is the scientists that they enlist to judge research proposals who decide which proposals receive funding. Furthermore, applications are not forced to publish in a specific journal: the only requirement is that their research is published in an open access one.Report


text:
1 A Hard Day's Night 03/27/2005 27 13
1 The First Cut is the Deepest 04/03/2005 31 15
1 Winning a Battle, Losing the War 04/10/2005 19 9
1 No Man's Land 04/17/2005 20 4
1 Shake Your Groove Thing 04/24/2005 18
1 If Tomorrow Never Comes 05/01/2005 17
1 The Self-Destruct Button 05/08/2005 12
1 Save Me 05/15/2005 18
1 Who's Zoomin' Who? 05/22/2005 16
2 Raindrops Keep Falling on My Head 09/25/2005 10
2 Enough Is Enough 10/02/2005 17
2 Make Me Lose Control 10/09/2005 10
2 Deny, Deny, Deny 10/16/2005 16
2 Bring the Pain 10/23/2005 16
2 Into You Like a Train 10/30/2005 18
2 Something to Talk About 11/06/2005 19
2 Let It Be 11/13/2005 16
2 Thanks for the Memories 11/20/2005 15
2 Much Too Much 11/27/2005 12
2 Owner of a Lonely Heart 12/04/2005 15
2 Grandma Got Run Over by a Reindeer 12/11/2005 16
Straight to the Heart 01/08/2006 8
2 Begin the Begin 01/15/2006 14
2 Tell Me Sweet Little Lies 01/22/2006 12
2 Break on Through 01/29/2006 21
2 It's the End of the World 02/05/2006 14
2 As We Know It 02/12/2006 13
2 Yesterday 02/19/2006 16
2 What Have I Done to Deserve This? 02/26/2006 16
2 Band-Aid Covers the Bullet Hole 03/12/2006 14
2 Superstition 03/19/2006 16
2 The Name of the Game 04/02/2006 15
Under Pressure 04/23/2006 8
2 Blues for Sister Someone 04/30/2006 14
2 Damage Case 05/07/2006 18
2 17 Seconds 05/14/2006 20
2 Deterioration of the Fight or Flight Response 05/15/2006 15
Complications of the Heart 09/21/2006 10
I Am a Tree 09/28/2006
3 Sometimes a Fantasy 10/05/2006 16
3 What I Am 10/12/2006 16
3 Oh, the Guilt 10/19/2006 19
3 Let the Angels Commit 11/02/2006 17
3 Where the Boys Are 11/09/2006 15
3 Staring at the Sun 11/16/2006 17
3 From a Whisper to a Scream 11/23/2006 14
3 Don't Stand So Close to Me 11/30/2006 20
3 Six Days: Part 1 01/11/2007 18
3 Great Expectations 01/25/2007 13
3 Wishin' and Hopin' 02/01/2007 14
3 Walk on Water 02/08/2007 18
3 Drowning on Dry Land 02/15/2007 19
3 Some Kind of Miracle 02/22/2007 21
3 Scars and Souvenirs 03/15/2007 15
3 My Favorite Mistake 03/22/2007 15
Every Moment Counts 04/12/2007 10
3 Time After Time 04/19/2007 20
3 Desire 04/26/2007 16
3 The Other Side of This Life: Part 1 05/03/2007 28
3 Testing 1-2-3 05/10/2007 17
3 Didn't We Almost Have It All? 05/17/2007 19
4 A Change Is Gonna Come 09/27/2007 16
4 Love/Addiction 10/04/2007 16
4 Let the Truth Sting 10/11/2007 20
4 The Heart of the Matter 10/18/2007 20
4 Haunt You Every Day 10/25/2007 19
4 Kung Fu Fighting 11/01/2007 17
4 Physical Attraction... Chemical Reaction 11/08/2007 16
4 Forever Young 11/15/2007 19
4 Crash Into Me: Part 1 11/22/2007 19
4 Lay Your Hands on Me 01/10/2008 14
4 Where the Wild Things Are 04/24/2008 13
4 Piece of My Heart 05/01/2008 16
4 The Becoming 05/08/2008 15
4 Losing My Mind 05/15/2008 16
Freedom 05/22/2008 18
Dream a Little Dream of Me 09/25/2008 19
5 Here Comes the Flood 10/09/2008 17
5 Brave New World 10/16/2008 19 1
5 There's No 'I' in Team 10/23/2008 18
5 Life During Wartime 10/30/2008 20
5 Rise Up 11/06/2008 16
5 These Ties That Bind 11/13/2008 16
5 In the Midnight Hour 11/20/2008 15
5 All by Myself 12/04/2008 18
5 Wish You Were Here 01/08/2009 30 18
5 Sympathy for the Devil 01/15/2009 30 19
5 Stairway to Heaven 01/22/2009 31 24
5 Beat Your Heart Out 02/05/2009 18
5 Before and After 02/12/2009 18
5 An Honest Mistake 02/19/2009 17
5 I Will Follow You Into the Dark 03/12/2009 15
5 Stand by Me 03/19/2009 13
5 Elevator Love Letter 03/26/2009 16
5 Sweet Surrender 04/23/2009 21
No Good at Saying Sorry 04/30/2009
5 What a Difference a Day Makes 05/07/2009 15
Here's to the Future 05/14/2009
6 Good Mourning 09/24/2009 17
6 I Always Feel Like Somebody's Watchin' Me 10/01/2009 16
6 Tainted Obligation 10/08/2009 18
6 Invasion 10/15/2009 24
6 I Saw What I Saw 10/22/2009 20
6 Give Peace a Chance 10/29/2009 18 1
6 Invest in Love 11/05/2009 17
6 New History 11/12/2009 17
6 Holidaze 11/19/2009 18
6 Blink 01/14/2010 19
6 I Like You So Much Better When You're Naked 01/21/2010 15
6 State of Love and Trust 02/04/2010 18
6 Valentine's Day Massacre 02/11/2010 15
6 The Time Warp 02/18/2010 18
6 Perfect Little Accident 03/04/2010 17
6 Push 03/11/2010 17
6 Suicide Is Painless 03/25/2010 19
6 Sympathy for the Parents 04/01/2010 16
6 Hook, Line and Sinner 04/29/2010 15
6 How Insensitive 05/06/2010 17
6 Shiny Happy People 05/13/2010 17
6 Sanctuary 05/20/2010 17
7 With You I'm Born Again 09/23/2010 18
7 Shock to the System 09/30/2010 16
7 Superfreak 10/07/2010 15
7 Can't Fight Biology 10/14/2010 20 3
7 Almost Grown 10/21/2010 15
7 These Arms of Mine 10/28/2010 15 1
7 That's Me Trying 11/04/2010 16
7 Something's Gotta Give 11/11/2010 17
7 Slow Night, So Long 11/18/2010 16
7 Adrift and at Peace 12/02/2010 17
7 Disarm 01/06/2011 20
7 Start Me Up 01/13/2011 16
7 Don't Deceive Me (Please Don't Go) 02/03/2011 15
7 P.Y.T. (Pretty Young Thing) 02/10/2011 18
7 Golden Hour 02/17/2011 21
7 Not Responsible 02/24/2011 18
7 This Is How We Do It 03/24/2011 19
7 Song Beneath the Song 03/31/2011 14
7 It's a Long Way Back 04/28/2011 17
7 White Wedding 05/05/2011 19
7 I Will Survive 05/12/2011 15
7 Unaccompanied Minor 05/19/2011 17
8 Free Falling 09/22/2011 11
8 Take the Lead 09/29/2011
8 What Is It About Men 10/06/2011
8 Love, Loss and Legacy 10/13/2011 26 1
8 Poker Face 10/20/2011
8 Put Me in, Coach 10/27/2011
8 Heart-Shaped Box 11/03/2011
8 Dark Was the Night 11/10/2011
8 Suddenly 01/05/2012
8 This Magic Moment 01/12/2012
8 Hope for the Hopeless 01/19/2012
8 If/Then 02/02/2012
8 All You Need Is Love 02/09/2012
8 Have You Seen Me Lately? 02/16/2012
8 If Only You Were Lonely 02/23/2012
8 One Step Too Far 03/15/2012
8 The Lion Sleeps Tonight 04/05/2012
8 Support System 04/12/2012
8 The Girl with No Name 04/19/2012
8 Moment of Truth 04/26/2012
8 Let the Bad Times Roll 05/03/2012
8 Migration 05/10/2012
8 Flight 05/17/2012 9:00 pm ABC USA
9 Going Going Gone 09/27/2012
9 Remember the Time 10/04/2012
9 Love the One You're With 10/18/2012
9 I Saw Her Standing There 10/25/2012
9 Beautiful Doom 11/08/2012
9 Second Opinion 11/15/2012
9 I Was Made for Lovin' You 11/29/2012
9 Love Turns You Upside Down 12/06/2012
9 Run, Baby, Run 12/13/2012
9 Things We Said Today 01/10/2013
9 The End Is the Beginning Is the End 01/17/2013
9 Walking on a Dream 01/24/2013
9 Bad Blood 01/31/2013
9 The Face of Change 02/07/2013
9 Hard Bargain 02/14/2013
9 This Is Why We Fight 02/21/2013
9 Transplant Wasteland 03/14/2013
9 Idle Hands 03/21/2013
9 Can't Fight This Feeling 03/28/2013
9 She's Killing Me 04/04/2013
9 Sleeping Monster 04/25/2013
9 Do You Believe in Magic 05/02/2013
9 Readiness Is All 05/09/2013
9 Perfect Storm 05/16/2013
10 Seal Our Fate 09/26/2013 9:00 pm ABC USA 12
10 Everybody's Crying Mercy 10/03/2013
10 Puttin' on the Ritz 10/10/2013
10 I Bet It Stung 10/17/2013
10 Map of You 10/24/2013
10 Thriller 10/31/2013
10 Two Against One 11/07/2013
10 Sorry Seems to Be the Hardest Word 11/14/2013
10 Somebody That I Used to Know 11/21/2013
10 Man on the Moon 12/05/2013
10 Get Up, Stand Up 12/12/2013
10 Take It Back 02/27/2014
10 You've Got to Hide Your Love Away 03/06/2014
10 Throwing It All Away 03/13/2014
10 We Gotta Get Out of This Place 03/20/2014
10 Do You Know? 03/27/2014
10 You Be Illin' 04/03/2014
10 I'm Winning 04/10/2014
10 Go It Alone 04/17/2014
10 Change of Heart 04/24/2014
10 We Are Never Ever Getting Back Together 05/01/2014
10 Everything I Try to Do, Nothing Seems to Turn Out Right 05/08/2014
10 Fear (of the Unknown) 05/15/2014
11 I Must Have Lost It on the Wind 09/25/2014
11 Puzzle with a Piece Missing 10/02/2014
11 Got to Be Real 10/09/2014
11 Only Mama Knows 10/16/2014
11 Bend & Break 10/23/2014
11 Don't Let's Start 11/06/2014
11 Could We Start Again, Please? 11/13/2014
11 Risk 11/20/2014
11 Where Do We Go From Here? 01/29/2015
11 The Bed's Too Big Without You 02/05/2015
11 All I Could Do Was Cry 02/12/2015
11 The Great Pretender 02/19/2015
11 Staring at the End 02/26/2015
11 The Distance 03/05/2015
11 I Feel the Earth Move 03/12/2015
11 Don't Dream It's Over 03/19/2015
11 With or Without You 03/26/2015
11 When I Grow Up 04/02/2015
11 Crazy Love 04/09/2015
11 One Flight Down 04/16/2015
11 How to Save a Life 04/23/2015
11 She's Leaving Home 04/30/2015
11 Time Stops 05/07/2015
11 You're My Home 05/14/2015
12 Sledgehammer 09/24/2015
12 Walking Tall 10/01/2015
12 I Choose You 10/08/2015
12 Old Time Rock and Roll 10/15/2015
12 Guess Who's Coming to Dinner 10/22/2015
12 The Me Nobody Knows 11/05/2015
12 Something Against You 11/12/2015
12 Things We Lost in the Fire 11/19/2015
12 The Sound of Silence 02/11/2016
12 All I Want Is You 02/18/2016
12 Unbreak My Heart 02/25/2016
12 My Next Life 03/03/2016
12 All Eyez on Me 03/10/2016
12 Odd Man Out 03/17/2016
12 I Am Not Waiting Anymore 03/24/2016
12 When It Hurts So Bad 03/31/2016
12 I Wear the Face 04/07/2016
12 There's a Fine, Fine Line 04/14/2016
12 Trigger Happy 04/21/2016
12 You're Gonna Need Someone on Your Side 04/28/2016
12 Mama Tried 05/05/2016
12 At Last 05/12/2016
12 Family Affair 05/19/2016
13 Undo 09/22/2016
13 Catastrophe and the Cure 09/29/2016
13 I Ain't No Miracle Worker 10/06/2016
13 Falling Slowly 10/13/2016
13 Both Sides Now 10/20/2016
13 Roar 10/27/2016 8:00 pm ABC USA
13 Why Try to Change Me Now 11/03/2016
13 The Room Where It Happens 11/10/2016
13 You Haven't Done Nothin' 11/17/2016
13 Episode #13.10 01/01/2017
13 You Can Look (But You'd Better Not Touch) 01/26/2017
13 Jukebox Hero 02/02/2017
13 None of Your Business 02/09/2017
13 It Only Gets Much Worse 02/16/2017
13 Back Where You Belong 02/23/2017
13 Civil War 03/09/2017
13 Who Is He (And What Is He to You)? 03/16/2017
13 'Till I Hear It from You 03/23/2017
13 Be Still, My Soul 03/30/2017
13 What's Inside 04/06/2017 8:00 pm ABC USA
13 In the Air Tonight 04/13/2017
14 Break Down the House 09/28/2017
14 Get Off on the Pain 09/28/2017
14 Go Big or Go Home 10/05/2017
14 Ain't That a Kick in the Head 10/12/2017
14 Danger Zone 10/26/2017
14 Come on Down to My Boat, Baby 11/02/2017
14 Who Lives, Who Dies, Who Tells Your Story 11/09/2017
14 Out of Nowhere 11/16/2017
14 1-800-799-7233 01/18/2018
14 Personal Jesus 01/25/2018
14 (Don't Fear) the Reaper 02/01/2018
14 Harder, Better, Faster, Stronger 02/08/2018
14 You Really Got a Hold on Me 03/01/2018
14 Games People Play 03/08/2018
14 Old Scars, Future Hearts 03/15/2018
14 Caught Somewhere in Time 03/22/2018
14 One Day Like This 03/29/2018
14 Hold Back The River 04/05/2018
14 Beautiful Dreamer 04/12/2018
14 Judgment Day 04/19/2018
14 Bad Reputation 04/26/2018
14 Fight For Your Mind 05/03/2018
14 Cold As Ice 05/10/2018
14 All of Me 05/17/2018
15 With a Wonder and a Wild Desire 09/27/2018
15 Broken Together 09/27/2018
15 Gut Feeling 10/04/2018
15 Momma Knows Best 10/11/2018
15 Everyday Angel 10/25/2018
15 Flowers Grow Out Of My Grave 11/01/2018 8:00 pm ABC USA
15 Anybody Have a Map? 11/08/2018 8:00 pm ABC USA
15 Blowin' in the Wind 11/15/2018 8:00 pm ABC USA
15 Shelter From the Storm 01/17/2019 8:00 pm ABC USA
15 Help, I'm Alive 01/24/2019
15 The Winner Takes It All 01/31/2019
15 Girlfriend in a Coma 02/07/2019
15 I Walk The Line 02/14/2019
15 I Want a New Drug 02/21/2019
15 We Didn't Start the Fire 02/28/2019
15 Blood and Water 03/07/2019
15 And Dream of Sheep 03/14/2019
15 Add It Up 03/21/2019
15 Silent All These Years 03/28/2019
15 The Whole Package 04/04/2019
15 Good Shepherd 04/11/2019
15 Head Over High Heels 04/18/2019
15 What I Did For Love 05/02/2019
15 Drawn to the Blood 05/09/2019
15 Jump Into the Fog 05/16/2019 8:00 pm ABC USA
16 Nothing Left to Cling To 09/26/2019
16 Back in the Saddle 10/03/2019
16 Reunited 10/10/2019
16 It's Raining Men 10/17/2019
16 Breathe Again 10/24/2019
16 Whistlin' Past the Graveyard 10/31/2019
16 Papa Don't Preach 11/07/2019
16 My Shot 11/14/2019
16 Let's All Go to the Bar 11/21/2019
16 Help Me Through the Night 01/23/2020
16 A Hard Pill to Swallow 01/30/2020
16 The Last Supper 02/06/2020
16 Save the Last Dance for Me 02/13/2020
16 A Diagnosis 02/20/2020
16 Snowblind 02/27/2020
16 Leave a Light On 03/05/2020
16 Life on Mars? 03/12/2020
16 Give a Little Bit 03/19/2020
16 Love of My Life 03/26/2020
16 Sing It Again 04/02/2020
16 Put on a Happy Face 04/09/2020
17 All Tomorrow's Parties 11/12/2020
17 The Center Won't Hold 11/12/2020
17 My Happy Ending 11/19/2020


FROM CURVEBALL TO THE GERASIMOV DOCTRINE: A WARNING OF STRATEGIC GROUPTHINK?
03 Jun FROM CURVEBALL TO THE GERASIMOV DOCTRINE: A WARNING OF STRATEGIC GROUPTHINK?
Hybrid warfare, disinformation campaigns and election meddling have been the keywords used to describe the foreign policy strategy of Russia of the last few years. They have been discussed at length in literature, books, and even at the highest ranks of western militaries and governments. And for the initiated, these concepts all relate back to the all-encompassing Russian strategy of chaos, better known as the 'Gerasimov Doctrine' after an article by the Russian Chief of the General Staff, General Valery Gerasimov. To understand this Doctrine has been the holy grail of understanding Russian grand strategy and it has had a major impact on Western strategic thinking about Russia. However, the doctrine explained by General Gerasimov wasn't about Russia, it was about the West. And due to an interpretation error, the work became evidence of a non-existing Russian doctrine with huge effect.  Like Curveball in the early 2000's, this single source gained a life of its own and became a catalyst of major strategic groupthink which is the death of any effective strategic thoughts and solutions.
This pattern of groupthink illustrated here above also applies to the readiness with which the West has accepted the Gerasimov Doctrine. The interpretation of the doctrine hasn't led to an invasion of a sovereign nation, but it functions as the intellectual legitimacy of Western strategic thinking about the Russian threat. The Gerasimov Doctrine came to be known in the West after the publication of a translated article which explained the stages of the permanent conflict.  In the article Gerasimov explains the change of warfare and the use of non-military means of achieving political and strategic goals and the blurring lines between war and peace. Such as the infiltration of the media and civil society, and the use of economic and humanitarian tools to impact a country from the inside.
As it turned out the article did not describe Russia's approach to foreign relations, but it was Gerasimov's analysis on how the U.S. and NATO ignited the Arab Spring and spread their global influence. As such, the original article on the Gerasimov doctrine wasn't really about the Russian grand strategy, but it was a Russian conspiracy theory about the West. Which then was taken out of context and soon spread through academia and to military strategists.  After all, knowing the opponent's grand strategy is the holy grail in understanding the opponent's actions. And in the chaos of the little-green-man annexation of Crimea and the ensuing war in Eastern Ukraine this doctrine provided an acceptable context and understanding for the actions of the Russian government and – let's be honest – a far more appealing explanation than the actions being a combination of opportunism and fear of eastward expansion of the western sphere of influence. It also provided a logic for Russian attempts to influence elections, but this also isn't something new. Electoral influence campaigns were already primary tools of both the KGB and CIA during the Cold War, and it's logical that they have been extended to include the new forms of media.  While all worrying, they aren't evidence of the Gerasimov Doctrine being a real thing.
When the actions of Russia are put into to the context of a 'Gerasimov Doctrine', Russia appears much more dangerous and willing to use its violent and non-violent means to achieve its goals. And it is this fear of aggressive Russian activities and meddling that have as much of a negative effect on the increasing hostile relation between Russia and the West, as the actions taken by both sides over the last few years show. Furthermore the doctrine also created a false sense of security by providing a fake understanding of Russian aggression for policymakers in the west. But does this mean Russia doesn't have a multidimensional approach and willingness to pursue active (non-) violent conflict, and that Russia doesn't have a grand strategy? We don't know. Russia is a nuclear power with global ambitions and has a very capable military and diplomatic service. But like the case of Curveball, it shows that a small piece of faulty information can make its way into mainstream strategy with real world consequences. As such, the old intelligence wisdom remains true. 'One source is no source' and those involved with strategic thinking must remain vigilant about easy explanations originating from a single source and accepting easy explanations.
 Janis, I. (1972) Victims of groupthink: A Psychological Study of Foreign-Policy Decisions and Fiascos. Boston: Houghton Milfin.


If you install Cisco Jabber on your computer you may noticed that the presence in Outlook provided by Skype For Bussiness (former Lync) is gone.
This occurs because of the installation from Cisco Jabber. But there is a way to fix that.
1.) Download my Registry-File: https://secure.aebian.org/skype-presence or use the source below.
2.) Reg-File: Double Click on it. Source-Code: Create your own reg-file or add the entries manually.
3.) Check that your settings [File --> Options --> People] match the screen below.
Thats it. After saving everything restart Outlook and Lync and you see the Presence again.


text:
import copy
import time

import pyvision as pv

def face_from_eyes(eye1, eye2):
    '''
    Given eye coordinates estimate the face rectangle
    Assumes the face is reasonably horizontal.
    '''
    truth_rect = pv.BoundingRect(eye1, eye2)
    truth_rect.w = 3.0 * truth_rect.w
    truth_rect.h = truth_rect.w
    truth_rect.x = truth_rect.x - 0.33 * truth_rect.w
    truth_rect.y = truth_rect.y - 0.4 * truth_rect.w
    return truth_rect

def is_success(truth_rect, detected_rect, threshhold=0.25):
    '''
    This code takes a truth rect and a detected rect and determines
    if the detection is a success or a failure. The default behavior
    is true if the intersection of the two rects is has 50% of the
    area of the larger rectangle.
    '''

    if overlap_score(truth_rect, detected_rect) < threshhold:
        return False
    return True

def overlap_score(truth_rect, detected_rect):
    '''
    This code takes a truth rect and a detected rect and determines
    if the detection is a success or a failure. The default behavior
    is true if the intersection of the two rects is has 50% of the
    area of the larger rectangle.
    '''
    same = truth_rect.intersect(detected_rect)
    max_area = max(truth_rect.area(), detected_rect.area())
    if same == None:
        return 0.0
    return same.area()/max_area

#############################################################################
class FaceDetectionTest:
    def __init__(self,name=None,threshold=0.25):
        '''
        Create a face detection test.

        INPUTS:
        @param name: Label for the test.
        @param threshold: The fraction of joint area that counts as success.
        '''
        self.name = name
        self.threshold=threshold
        self.sample_id = 1

        self.table = pv.Table()
        self.summary_table = pv.Table()

        # Cumulative statistic
        self.images = 0
        self.positives = 0
        self.successes = 0
        self.negatives = 0
        self.pixels = 0

        # Summary statistics
        self.pos_rate = 0.0
        self.pos_bounds = (0.0,0.0)
        self.neg_rate = 0.0

        self.image_time = None
        self.total_time = None
        self.start_time = time.time()
        self.end_time = None

    def addSample(self, truth_rects, detected_rects, im=None, annotate=False):
        '''
        Adds a sample to face detection test.

        @param truth_rects:    truth for an image.
        @param detected_rects: output of the detector
        @param im:             the image or filename to assciate with the sample.
        @param annotate:       add diagnostic annotations to the images.
        '''
        self.images += 1
        name = None
        detected_rects = copy.copy(detected_rects)

        if isinstance(im,pv.Image):
            name = im.filename
            if self.pixels != None:
                self.pixels += im.asPIL().size[0] * im.asPIL().size[1]
        elif isinstance(im,str):
            name = im
            self.pixels = None
        else:
            name = "%d"%self.sample_id
            self.pixels = None

        table = self.table

        for i in range(len(truth_rects)):
            truth = truth_rects[i]
            self.positives += 1
            success = False
            best_overlap = 0.0
            best_detection = None

            for j in range(len(detected_rects)):
                detected = detected_rects[j]
                overlap = overlap_score(truth,detected)
                if overlap >= self.threshold and overlap > best_overlap:
                    success = True
                    best_overlap = overlap
                    best_detection = j

            table.setData(self.sample_id,'id',self.sample_id)
            table.setData(self.sample_id,'name',name)
            table.setData(self.sample_id,'truth_rect',str(truth))
            if best_detection != None:
                table.setData(self.sample_id,'detection_rect',str(detected_rects[best_detection]))
            else:
                table.setData(self.sample_id,'detection_rect',None)
            table.setData(self.sample_id,'success',success)
            table.setData(self.sample_id,'overlap',best_overlap)
            self.sample_id+=1

            if success:
                self.successes += 1
            if annotate and isinstance(im,pv.Image):
                if success:
                    im.annotateEllipse(truth,color='green')
                else:
                    im.annotateEllipse(truth,color='red')

            # Remove the best detection if success
            if best_detection != None:
                del detected_rects[best_detection]

        if annotate:
            for each in detected_rects:
                im.annotateRect(each,color='red')

        self.negatives += len(detected_rects)

        self.end_time = time.time()
        self.total_time = self.end_time - self.start_time
        self.image_time = self.total_time/float(self.images)
        # Update summary statistics
        if self.positives > 0:
            self.pos_rate = float(self.successes)/self.positives
            self.pos_bounds = pv.cibinom(self.positives,self.successes,alpha=0.05)
        if self.pixels != None:
            self.neg_rate = float(self.negatives)/float(1.0e-6*self.pixels)

        self.createSummary()

    def createSummary(self):
        '''
        Summary of a test as a table.
        '''
        self.summary_table.setElement('PosRate','Value',self.pos_rate)
        self.summary_table.setElement('Lower95','Value',self.pos_bounds[0])
        self.summary_table.setElement('Upper95','Value',self.pos_bounds[1])
        self.summary_table.setElement('NegRate','Value',self.neg_rate)
        self.summary_table.setElement('NegCount','Value',self.negatives)
        self.summary_table.setElement('ImageCount','Value',self.images)
        self.summary_table.setElement('TotalTime','Value',self.total_time)
        self.summary_table.setElement('TimePerImage','Value',self.image_time)

    def __str__(self):
        ''' One line summary of the test '''
        return "FaceDetectionTest(name:%s,PosRate:%f,PosBounds:%s,NegRate:%f,Neg:%d,Im:%d)"%(self.name,self.pos_rate,self.pos_bounds,self.neg_rate,self.negatives,self.images)

#############################################################################
def summarizeDetectionTests(tests):
    '''
    Create a summary table for a list containing FaceDetectionTest objects.
    '''
    summary = pv.Table()
    summary.setColumnFormat('PosRate','%0.4f')
    summary.setColumnFormat('Lower95','%0.4f')
    summary.setColumnFormat('Upper95','%0.4f')
    summary.setColumnFormat('NegRate','%0.4f')
    summary.setColumnFormat('Time','%0.2f')
    for test in tests:
        summary.setElement(test.name,'PosRate',test.pos_rate)
        summary.setElement(test.name,'Lower95',test.pos_bounds[0])
        summary.setElement(test.name,'Upper95',test.pos_bounds[1])
        summary.setElement(test.name,'NegRate',test.neg_rate)
        summary.setElement(test.name,'Time',test.total_time)
    return summary

#TODO: Unit tests

redpajama_set_name: RedPajamaGithub


Video | Formats | Whatever you like.
It has been quite a while, but here back again the Song Of The Week. The perfect lazy Sunday song!
The sun is shining outside in Holland! Which made me think of this song instantly. It reminds me of the summer! This is a live version of the song at the beach in Barcelona. Enjoy!


Renewable Energy Production: Clean Electricity – A Science Reading Article – Disciplinary Literacy. This resource contains three complete readings in addition to an introduction to renewable energy. This bundling saves you 25%. The renewable sources include Solar, Hydroelectric, and Wind Energy Production.
This resource is suitable for high school students as well as strong middle-school students. Tackle literacy and science by having your students read and answer questions from a scientific article. Questions include knowledge (direct from the paper), thinking, connecting and open-ended varieties.
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