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Yes, negligence would be that something else. Theranos had a duty of care to the patients and they very blatantly breached that duty. Fraud deals with purely

Yes, negligence would be that something else. Theranos had a duty of care to the patients and they very blatantly breached that duty. Fraud deals with purely financial loss, while negligence deals with harm which is much wider in scope.

necovek 5y ago
I am neither American nor a native English speaker, but I always thought fraud was mostly a deliberate action, and negligence was mostly resulting out of either lack of action or accidental consequences of an action. So if a company deliberately and knowingly markets a "sepsis-test" that puts out completely random results and leads to people getting their limbs amputated (bear with me, I know the example is terrible), they can only be held responsible for "negligence" by those patients? Or would patients only be able to claim financial loss due to fraudulent loss of work ability and such? There was similar reporting of those prenatal genetic tests a few days ago (they have led to unnecessary pregnancy abortions due to incorrect results), and I wonder what corrective action we can do to ensure these things don't happen?
- toyg 5y ago
  Negligence is not an absolute concept, there is a scale going from accidental to willful - which is where it borders on fraud. The legal definitions around these terms are complex, because the difference between gross negligence, willful misconduct, and outright fraud, can often be philosophical more than practical. In your example, I reckon that the random tests would be considered willfully negligent.
- Someone 5y ago
  I’m not a lawyer, but the Wikipedia part I quoted gives me the impression that, in US law or maybe the specific state this case was in, “fraud” is legally defined “depriving somebody of any money or property”. Again assuming Wikipedia (https://en.wikipedia.org/wiki/Negligence#Procedure_in_the_United_States https://en.wikipedia.org/wiki/Negligence#Procedure_in_the_Un...) has this right, negligence requires injury (“The United States generally recognizes four elements to a negligence action: duty, breach, proximate causation and injury. A plaintiff who makes a negligence claim must prove all four elements of negligence in order to win his or her case” “Injury” may have a wider meaning in US law than elsewhere, though. Wikipedia gives me https://en.wikipedia.org/wiki/Personal_injury https://en.wikipedia.org/wiki/Personal_injury, which says “Personal injury is a legal term for an injury to the body, mind or emotions, as opposed to an injury to property”, so properties can be injured, too, and https://dictionary.law.com/Default.aspx?selected=1646 https://dictionary.law.com/Default.aspx?selected=1646 sort-of shows that’s a synonym for “property damage”.
Nasrudith 5y ago
Yeah negligence is a better fit. Their process sucked unacceptably and they knew it but they didn't set out to lie with test results or never performed them. I think they might have contracted out tests to real labs which could be fraud but that would be both harder to link to Holmes and potentially defensible. Imagine an alternate world with a Nega-Theranos which actually had machines which worked but were say five percentage points less accurate. Say Nega-Theranos used some patient samples with enough blood that way to check their accuracy in comparison. Technically not the machines they advertised but still done in patient interests. We don't have a NegaTheranos and there were biophysical and statistical constraints which made the concept flawed from the start (not all blood sources are identical in the person and statistical limitations) . The smart thing to do was not try that method from the start. The ethical thing would be to tell the board and let them decide if they should dissolve the venture or try to pivot to another approach or task. It would be stupidly harder to try to identify the contents of blood non-invasively but actually possible. There are already several insulin only blood scanners in trial or development by multiple companies.
- dragonwriter 5y ago
  > Their process sucked unacceptably and they knew it but they didn't set out to lie with test results They lied about what test they were doing, and people paid them based on that lie. While the jury here may be correct that that wasn't federal wire fraud by Holmes personally, it absolutely was a fraud by Theranos.
  - starfallg 5y ago
    On the other hand Theranos and by extension Holmes had a duty to the patients which they clearly breached. It's definitely more clear cut in terms of negligence.
dragonwriter 5y ago
> Fraud deals with purely financial loss False. Fraud deals with any time in which something of value (not just something financial) is obtained under false pretenses, and (where civil damages or criminal restitution is sought/awarded for it) can address all compensable harms resulting from the misrepresentation, not just loss that was financial in character (the restitution will be financial, of course, but that's also true of negligence.)
- starfallg 5y ago
  Loss of property or of value is still monetary loss, which is financial. The fact is that for fraud, you much prove that something of value has been lost.

necovek 5y ago

I am neither American nor a native English speaker, but I always thought fraud was mostly a deliberate action, and negligence was mostly resulting out of either lack of action or accidental consequences of an action. So if a company deliberately and knowingly markets a "sepsis-test" that puts out completely random results and leads to people getting their limbs amputated (bear with me, I know the example is terrible), they can only be held responsible for "negligence" by those patients? Or would patients only be able to claim financial loss due to fraudulent loss of work ability and such? There was similar reporting of those prenatal genetic tests a few days ago (they have led to unnecessary pregnancy abortions due to incorrect results), and I wonder what corrective action we can do to ensure these things don't happen?

toyg 5y ago
Negligence is not an absolute concept, there is a scale going from accidental to willful - which is where it borders on fraud. The legal definitions around these terms are complex, because the difference between gross negligence, willful misconduct, and outright fraud, can often be philosophical more than practical. In your example, I reckon that the random tests would be considered willfully negligent.
Someone 5y ago
I’m not a lawyer, but the Wikipedia part I quoted gives me the impression that, in US law or maybe the specific state this case was in, “fraud” is legally defined “depriving somebody of any money or property”. Again assuming Wikipedia (https://en.wikipedia.org/wiki/Negligence#Procedure_in_the_United_States https://en.wikipedia.org/wiki/Negligence#Procedure_in_the_Un...) has this right, negligence requires injury (“The United States generally recognizes four elements to a negligence action: duty, breach, proximate causation and injury. A plaintiff who makes a negligence claim must prove all four elements of negligence in order to win his or her case” “Injury” may have a wider meaning in US law than elsewhere, though. Wikipedia gives me https://en.wikipedia.org/wiki/Personal_injury https://en.wikipedia.org/wiki/Personal_injury, which says “Personal injury is a legal term for an injury to the body, mind or emotions, as opposed to an injury to property”, so properties can be injured, too, and https://dictionary.law.com/Default.aspx?selected=1646 https://dictionary.law.com/Default.aspx?selected=1646 sort-of shows that’s a synonym for “property damage”.

Nasrudith 5y ago

Yeah negligence is a better fit. Their process sucked unacceptably and they knew it but they didn't set out to lie with test results or never performed them. I think they might have contracted out tests to real labs which could be fraud but that would be both harder to link to Holmes and potentially defensible. Imagine an alternate world with a Nega-Theranos which actually had machines which worked but were say five percentage points less accurate. Say Nega-Theranos used some patient samples with enough blood that way to check their accuracy in comparison. Technically not the machines they advertised but still done in patient interests. We don't have a NegaTheranos and there were biophysical and statistical constraints which made the concept flawed from the start (not all blood sources are identical in the person and statistical limitations) . The smart thing to do was not try that method from the start. The ethical thing would be to tell the board and let them decide if they should dissolve the venture or try to pivot to another approach or task. It would be stupidly harder to try to identify the contents of blood non-invasively but actually possible. There are already several insulin only blood scanners in trial or development by multiple companies.

dragonwriter 5y ago
> Their process sucked unacceptably and they knew it but they didn't set out to lie with test results They lied about what test they were doing, and people paid them based on that lie. While the jury here may be correct that that wasn't federal wire fraud by Holmes personally, it absolutely was a fraud by Theranos.
- starfallg 5y ago
  On the other hand Theranos and by extension Holmes had a duty to the patients which they clearly breached. It's definitely more clear cut in terms of negligence.

dragonwriter 5y ago

> Fraud deals with purely financial loss False. Fraud deals with any time in which something of value (not just something financial) is obtained under false pretenses, and (where civil damages or criminal restitution is sought/awarded for it) can address all compensable harms resulting from the misrepresentation, not just loss that was financial in character (the restitution will be financial, of course, but that's also true of negligence.)

starfallg 5y ago
Loss of property or of value is still monetary loss, which is financial. The fact is that for fraud, you much prove that something of value has been lost.