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I'll always be shocked that she was guilty of deceiving investors and not patients. Investors made a large financial bet while patients engaged in a routine med

by s_dev 4y ago

I'll always be shocked that she was guilty of deceiving investors and not patients. Investors made a large financial bet while patients engaged in a routine medical procedure. To me it's obvious which group needs protection and which had a right to certain expectations.

jnk345u8dfg9hjk 4y ago
Investors are louder than patients
- haliskerbas 4y ago
  Where volume is proportional to net worth, as per usual.
  - birdyrooster 4y ago
    Free $peech
gjsman-1000 4y ago
See also vaccine manufacturers for an example about how it isn't about the patients. They are legally immune from prosecution under the PREP Act for anything that unintentionally goes wrong. You also can't sue the FDA for approving any drug under Emergency Use Authorization. As for the vaccine court created to handle payouts from harm, it has only paid out 29 times in the last decade. I might believe the vaccines are safe - but 29 payouts (<6% of all filed claims) in a decade seems way too low by any statistic. The proof of harm seems insurmountable. https://www.cnbc.com/2020/12/16/covid-vaccine-side-effects-compensation-lawsuit.html https://www.cnbc.com/2020/12/16/covid-vaccine-side-effects-c...
- thelopa 4y ago
  That statistic could equally be cited as evidence that vaccines are overwhelmingly safe but are plagued by widespread, unfounded belief that they cause harm. It certainly isn’t insurmountable proof that they cause harm. If you want to prove that vaccines cause harm you will need different data.
  - gjsman-1000 4y ago
    If you read the article, experts say that the statistic is rather due to the extremely high amount of red tape required to even file a claim (you basically need a lawyer). Plus, the idea of paying a niche lawyer for less than 6% chance of success is enough to make everyone give up, and not everyone can afford said lawyer because it is so complex. You also must provide a medical basis and explanation for how it happened (otherwise it's legally just a coincidence), which requires additional paperwork by doctors, hospitals, and so on. And last, all claims must be filed within 1 year of the vaccination, so if you develop something, say, 10 months later, you have only 2 months to figure out the mess and file the claim. If it took you 3 months to put the medical basis together - too late. Plus, it's just common sense. Even by the official statistic of Thrombosis happening in "4 cases per one million" according to the CDC (as one potential side effect), that would indicate we should have 896 cases at a minimum, let alone authorized payouts.
    - KingOfCoders 4y ago
      You lost me with "Plus, it's just common sense." https://www.logicallyfallacious.com/logicalfallacies/Appeal-to-Common-Sense https://www.logicallyfallacious.com/logicalfallacies/Appeal-...
    - thelopa 4y ago
      It seems like you can’t make up your mind whether you’re trying to prove the government is doing a bad thing or whether the vaccines are unsafe. For the sake of argumentation, let’s say that the 4 cases of thrombosis per million is accurate, and all 4 cases are very severe. In that case, yeah, we should probably see more court settlements in favor of patients, and the government is doing a bad thing. However, if only ~900 people in the whole country have a severe reaction to vaccines but they save millions of people annually by preventing deadly and debilitating diseases, then you’ve shot yourself in the foot! That statistic is strong evidence that vaccines are very safe and likely produce more good than harm!
    - HyperSane 4y ago
      Vaccines kill a few dozen people and harm a few hundred a year while saving literally millions of people from death and severe harm. They are one of the greatest advances in medicine.
- Overtonwindow 4y ago
  You're speaking really about the National Vaccine Injury Compensation Fund. If someone is harmed by a vaccine the maker is immune from suit, but they can apply to the NVIC, which has paid out to some. However the difference is that the NVIC uses tax dollars to pay those claims. The drug companies themselves are immune. In business terms it's a win, but not very much for the public.
  - gjsman-1000 4y ago
    Right. I'm not trying to make an anti-vaccine point or anything like that here. I'm simply saying that 29 payouts in a decade, even with ridiculously low odds of injury, is still way, way, way too low and it lacks justice. Showing it really isn't about patients - if you get hurt, you'll never be compensated, too bad. Just like Theranos. You got hurt - too bad.
    - shagmin 4y ago
      This seems like apples and oranges to me. Theranos was lying about having a working product and I don't think there were many patients actually hurt, since they still used other products that were already available to have the appearance of something working, but I digress. In the case of vaccines, there is a product that thousands or millions of people take, and some small minority of people have some anomalous reactions. If you are one person that has a serious reaction to a vaccine that millions of people have had just fine, should you be compensated? I can see if it affected a large percentage of people, but where to draw that line I don't know, but then it shouldn't have made it past enough red tape with the FDA to be so widely available.
  - dahdum 4y ago
    I believe it’s a win for the public, government mandates many of these vaccines and while they have extremely low risk, it’s still non-zero. The last thing we need is a bunch of spurious lawsuits finding sympathetic and uninformed jurors driving up the costs for everyone and scaring the public into refusing them. In the US we have plenty of that already.
  - vkou 4y ago
- nonameiguess 4y ago
  "Unintentionally" is doing a lot of work there. This is to incentivize pharma makers to create vaccines without having to worry about spurious lawsuits. If they commit some kind of outright fraud, selling substances that aren't what they say or fabricating research results, they're still liable. This isn't much different from the way medical malpractice works. You can't (successfully) sue a doctor who performed open heart surgery on your husband because he died afterward, in most cases, because it's a risky procedure and that risk is something you have to accept. But if they were drunk while performing the surgery, you can absolutely sue for that. In this specific case, though, there isn't necessarily this kind of informed consent. People can be legally mandated to get vaccines, so it would make no sense to hold the company providing the vaccines liable. The entity creating the mandate, in this case the government itself, should be the one liable, and they are. Your number doesn't mean a whole lot, either. The most dangerous vaccines are for things like malaria and anthrax that typically only military members get, and when they end up harmed, the VA pays them disability benefits. There are way more than 29 people getting VA disability because of events like this.
- P5fRxh5kUvp2th 4y ago
  For covid it makes sense due to the haste (whether you agree with said haste or not, you know it makes sense given said haste exists). I can't speak to other, more deliberate, vaccines, but I suspect it exists there as simply protection the companies negotiated for.
- bsder 4y ago
  You are 3x-10x more likely to die from an alcohol related incident than you are from any vaccine side effects. Especially for people under 50. Come back once I see anti-vaxxers levels of crusading against alcohol, and I might take you seriously.
teraflop 4y ago
I skimmed through some of the court documents at the time, and from what I recall, it wasn't a question of which group was more "deserving of protection". It came down to a legal argument about the specific elements of the charges that were brought. Holmes and Balwani were charged with wire fraud, which specifically requires defrauding another of money through a deceptive scheme. Even proving that Theranos deliberately lied to patients about the accuracy of test results doesn't quite meet this bar, because the patients weren't the ones paying and therefore weren't the victims of fraud.
- birdyrooster 4y ago
  But the health of their bodies and their expectation and reliance are considerable and have value in a court of law. The patient has a potential liability from the scheme and therefore very well could have been defrauded though perhaps not criminally so.
  - zeruch 4y ago
    "are considerable and have value in a court of law" What is that value and in which court? The point is the prosecutors went for what they could reasonably prosecute on, with evidence available.
    - Jensson 4y ago
      The point is that wire fraud is apparently a much more serious crime than fraudulent medical practice, otherwise the fraudulent medical practice would be much easier to sue for. The problem is the law, not the prosecutors.
      - marcus0x62 4y ago
        > The point is that wire fraud is apparently a much more serious crime than fraudulent medical practice, otherwise the fraudulent medical practice would be much easier to sue for. That does not follow, at all. The US Attorney's office cannot bring charges against violations of state law, and medicine is largely regulated by the individual states in the US. Additionally, the evidence in a particular case might make it easier to prove some charges than others. That's not a value judgement that one crime is "worse" than another. That's just reality. The Feds prosecuted Al Capone for tax evasion -- not because anybody thinks tax crimes are more serious than murder, but a) that's what they had jurisdiction over and b) it is what they could prove in court.
jjtheblunt 4y ago
I wonder if patients were not direct customers might be the technicality, whereas they had to go through Walgreens or similar, but I also haven't figured it out.
rs_rs_rs_rs_rs 4y ago
>I'll always be shocked that she was guilty of deceiving investors and not patients Deceiving patients implies the Theranos tech was being used in "production" and I don't think that was the case.
- gtk40 4y ago
  Does the Walgreens partnership not count because it was more of a public trial but not production?
- davidhariri 4y ago
  I think it was at Walgreen’s, no?
  - brian_herman 4y ago
    No, I think they had a contract but weren't performing tests yet.
- projektfu 4y ago
  They were running a handful of tests on their proprietary machines. They were also diluting blood samples and running them on off-the-shelf machines. (cf. WSJ, the Dropout podcast)
davidhariri 4y ago
Well said
throwawaymaths 4y ago
I don't recall any patients being hurt by their technology, since they took "real" blood draws and ran analyses on those. I presume those analyses were what made it into whatever lab report. So suppose they screwed up 2% of their cases because they weren't licensed to do this (or did they forward to qwest?) You would still have to find victims to make a damaged claim. The investor damages story seems more straightforward from a legal perspective, but IANAL.
- dilap 4y ago
  Weren't they using blood draws too small to give accurate results w/ the traditional equipment they were using?
  - throwawaymaths 4y ago
    Maybe I misremembered, but I thought they generally had a real draw that they were diluting from to run on their machine, that was also analyzed.
    - antonjs 4y ago
      That's one of the things they were doing, but the other machines they were using weren't designed or tested to use diluted samples. At least the sensitivity of the test would suffer, but really it's out of spec and so unknown.
  - danpalmer 4y ago
    From what I remember (from the book Bad Blood), most patient uses fell into one of two categories: either they were drawing a large draw, running on their machines and traditional machines to check correctness, and giving what they deemed correct from these (likely the traditional machine answer), or they were just outright running large samples on traditional machines with no attempt to do anything new. I think there were a few cases of patients getting the wrong results, maybe they were correcting later, but all in all it was not a huge issue for patients given how it was running in practice. This is not to excuse the practices in any way, but I do get why the focus in the trial was not on defrauding patients.
gumby 4y ago
That's an interesting observation. My guess is that the financial statute (wire fraud IIRC?) was easier to prosecute due to being somewhat quantitative and, being used a lot, easier to prosecute with lots of precedent, procedure, and judges with experience in such cases. While hurting patients (is it even "malpractice" when you're not a doctor?) through out and out fraud is probably much harder and probably has lower penalties since in many medical cases "fraud" is fuzzier. But IANAL -- this is just my reasoning about this interesting question as someone who's run companies in the life sciences.
- 1-more 4y ago
  > is it even "malpractice" when you're not a doctor? Also malpractice is a tort, not a crime. You can sue over it, but the state does not prosecute it. This came up in the case of Christopher "Dr. Death" Duntsch [0]. He ended up being prosecuted for "aggravated assault with a deadly weapon" but it was maybe the first(?) time that assault had been used for medical malpractice. [0] https://en.wikipedia.org/wiki/Christopher_Duntsch https://en.wikipedia.org/wiki/Christopher_Duntsch
  - gumby 4y ago
    Thanks! Upon reflection, I suppose it could be ordinary consumer fraud to promise one thing and provide another, but my understanding is they drew a cylinder of blood "for verifying the new technology" and then when the new thing didn't work (or wasn't even tried) they could send back the "reference" readings from ordinary instruments, therefore not actually defrauding (or harming) any patients.
beambot 4y ago
For many of these proceedings, the DOJ will pick whichever charges are the most likely for a jury to convict (i.e. simple & unambiguous crime) rather than the most harmful. Once the guilty/not-guilty determination is made, then a judge can (usually) apply discretion to take into account aggregate harm to all stakeholders during sentencing. For another prominent example: Al Capone's tax evasion.
paxys 4y ago
The medical malpractice part is the purview of the FDA, and they did gave her and Theranos plenty of light slaps on the wrist for their transgressions over the years. Things only really got serious when the Waltons, Rupert Murdoch, Betsy DeVos, Larry Elison & co. lost money and convinced the DoJ to get involved.
- adventured 4y ago
  > Things only really got serious when the Waltons, Rupert Murdoch, Betsy DeVos, Larry Elison & co. lost money and convinced the DoJ to get involved The DOJ got interested after Theranos attempted to defraud the US military, not because of a few rich investors losing money on a venture bet.
  - blaser-waffle 4y ago
    I'm sure General Mattis and Kissinger being involved didn't hurt either.
Kalium 4y ago
There was clear evidence that she had personally defrauded investors. The evidence for individual patients and personal culpability was much less direct. Prosecutors went with what they could easily prove.
- madrox 4y ago
  Indeed. In the end, tax evasion is what brought down Al Capone.
hn_throwaway_99 4y ago
This was a common refrain when the verdict was first announced, and I think it absolutely misses the point. Legal outcomes are about what you can prove. It was very clear that Holmes said "Our product can do x, y, z" to investors, and it's also totally clear she knew this to be false at the time, and it was material. The evidence that she, personally, was guilty of defrauding patients directly was always reaching in my opinion. I followed the trial closely, and were I on the jury I would have voted for the same outcome. The thing I really don't like about the line of reasoning is that it's essentially emotional at its heart: investors are rich and knew they were taking a risk, while patients are the ones who need protection. That may very well be true, but you don't get to just make up outcomes because one group is more powerful than another. The prosecution just failed to prove beyond a reasonable doubt that she was guilty of defrauding patients.
- ryanisnan 4y ago
  How is saying to investors "Our product can do x, y, z" to investors not ok, but saying it to say Walgreens (and thus customers) is ok?
- naasking 4y ago
  > That may very well be true, but you don't get to just make up outcomes because one group is more powerful than another. The prosecution just failed to prove beyond a reasonable doubt that she was guilty of defrauding patients. Arguably, court procedures and standards of evidence are also made up and prioritize certain powerful groups over others. Which isn't to say that we shouldn't have rules, I'm just not sure appealing to the rules invalidates a claim that the outcome was unjust.
  - origin_path 4y ago
    Which powerful groups do court rules and standard of evidence prioritize?
    - naasking 4y ago
      Those with finances and influence. Or do you think that public defenders and private attorneys yield comparable outcomes? As but one example.

by s_dev 4y ago

jnk345u8dfg9hjk 4y ago

Investors are louder than patients

haliskerbas 4y ago
Where volume is proportional to net worth, as per usual.
- birdyrooster 4y ago
  Free $peech

gjsman-1000 4y ago

See also vaccine manufacturers for an example about how it isn't about the patients. They are legally immune from prosecution under the PREP Act for anything that unintentionally goes wrong. You also can't sue the FDA for approving any drug under Emergency Use Authorization. As for the vaccine court created to handle payouts from harm, it has only paid out 29 times in the last decade. I might believe the vaccines are safe - but 29 payouts (<6% of all filed claims) in a decade seems way too low by any statistic. The proof of harm seems insurmountable. https://www.cnbc.com/2020/12/16/covid-vaccine-side-effects-compensation-lawsuit.html https://www.cnbc.com/2020/12/16/covid-vaccine-side-effects-c...

thelopa 4y ago
That statistic could equally be cited as evidence that vaccines are overwhelmingly safe but are plagued by widespread, unfounded belief that they cause harm. It certainly isn’t insurmountable proof that they cause harm. If you want to prove that vaccines cause harm you will need different data.
- gjsman-1000 4y ago
  If you read the article, experts say that the statistic is rather due to the extremely high amount of red tape required to even file a claim (you basically need a lawyer). Plus, the idea of paying a niche lawyer for less than 6% chance of success is enough to make everyone give up, and not everyone can afford said lawyer because it is so complex. You also must provide a medical basis and explanation for how it happened (otherwise it's legally just a coincidence), which requires additional paperwork by doctors, hospitals, and so on. And last, all claims must be filed within 1 year of the vaccination, so if you develop something, say, 10 months later, you have only 2 months to figure out the mess and file the claim. If it took you 3 months to put the medical basis together - too late. Plus, it's just common sense. Even by the official statistic of Thrombosis happening in "4 cases per one million" according to the CDC (as one potential side effect), that would indicate we should have 896 cases at a minimum, let alone authorized payouts.
  - KingOfCoders 4y ago
    You lost me with "Plus, it's just common sense." https://www.logicallyfallacious.com/logicalfallacies/Appeal-to-Common-Sense https://www.logicallyfallacious.com/logicalfallacies/Appeal-...
  - thelopa 4y ago
    It seems like you can’t make up your mind whether you’re trying to prove the government is doing a bad thing or whether the vaccines are unsafe. For the sake of argumentation, let’s say that the 4 cases of thrombosis per million is accurate, and all 4 cases are very severe. In that case, yeah, we should probably see more court settlements in favor of patients, and the government is doing a bad thing. However, if only ~900 people in the whole country have a severe reaction to vaccines but they save millions of people annually by preventing deadly and debilitating diseases, then you’ve shot yourself in the foot! That statistic is strong evidence that vaccines are very safe and likely produce more good than harm!
  - HyperSane 4y ago
    Vaccines kill a few dozen people and harm a few hundred a year while saving literally millions of people from death and severe harm. They are one of the greatest advances in medicine.
Overtonwindow 4y ago
You're speaking really about the National Vaccine Injury Compensation Fund. If someone is harmed by a vaccine the maker is immune from suit, but they can apply to the NVIC, which has paid out to some. However the difference is that the NVIC uses tax dollars to pay those claims. The drug companies themselves are immune. In business terms it's a win, but not very much for the public.
- gjsman-1000 4y ago
  Right. I'm not trying to make an anti-vaccine point or anything like that here. I'm simply saying that 29 payouts in a decade, even with ridiculously low odds of injury, is still way, way, way too low and it lacks justice. Showing it really isn't about patients - if you get hurt, you'll never be compensated, too bad. Just like Theranos. You got hurt - too bad.
  - shagmin 4y ago
    This seems like apples and oranges to me. Theranos was lying about having a working product and I don't think there were many patients actually hurt, since they still used other products that were already available to have the appearance of something working, but I digress. In the case of vaccines, there is a product that thousands or millions of people take, and some small minority of people have some anomalous reactions. If you are one person that has a serious reaction to a vaccine that millions of people have had just fine, should you be compensated? I can see if it affected a large percentage of people, but where to draw that line I don't know, but then it shouldn't have made it past enough red tape with the FDA to be so widely available.
- dahdum 4y ago
  I believe it’s a win for the public, government mandates many of these vaccines and while they have extremely low risk, it’s still non-zero. The last thing we need is a bunch of spurious lawsuits finding sympathetic and uninformed jurors driving up the costs for everyone and scaring the public into refusing them. In the US we have plenty of that already.
- vkou 4y ago
nonameiguess 4y ago
"Unintentionally" is doing a lot of work there. This is to incentivize pharma makers to create vaccines without having to worry about spurious lawsuits. If they commit some kind of outright fraud, selling substances that aren't what they say or fabricating research results, they're still liable. This isn't much different from the way medical malpractice works. You can't (successfully) sue a doctor who performed open heart surgery on your husband because he died afterward, in most cases, because it's a risky procedure and that risk is something you have to accept. But if they were drunk while performing the surgery, you can absolutely sue for that. In this specific case, though, there isn't necessarily this kind of informed consent. People can be legally mandated to get vaccines, so it would make no sense to hold the company providing the vaccines liable. The entity creating the mandate, in this case the government itself, should be the one liable, and they are. Your number doesn't mean a whole lot, either. The most dangerous vaccines are for things like malaria and anthrax that typically only military members get, and when they end up harmed, the VA pays them disability benefits. There are way more than 29 people getting VA disability because of events like this.
P5fRxh5kUvp2th 4y ago
For covid it makes sense due to the haste (whether you agree with said haste or not, you know it makes sense given said haste exists). I can't speak to other, more deliberate, vaccines, but I suspect it exists there as simply protection the companies negotiated for.
bsder 4y ago
You are 3x-10x more likely to die from an alcohol related incident than you are from any vaccine side effects. Especially for people under 50. Come back once I see anti-vaxxers levels of crusading against alcohol, and I might take you seriously.

teraflop 4y ago

I skimmed through some of the court documents at the time, and from what I recall, it wasn't a question of which group was more "deserving of protection". It came down to a legal argument about the specific elements of the charges that were brought. Holmes and Balwani were charged with wire fraud, which specifically requires defrauding another of money through a deceptive scheme. Even proving that Theranos deliberately lied to patients about the accuracy of test results doesn't quite meet this bar, because the patients weren't the ones paying and therefore weren't the victims of fraud.

birdyrooster 4y ago
But the health of their bodies and their expectation and reliance are considerable and have value in a court of law. The patient has a potential liability from the scheme and therefore very well could have been defrauded though perhaps not criminally so.
- zeruch 4y ago
  "are considerable and have value in a court of law" What is that value and in which court? The point is the prosecutors went for what they could reasonably prosecute on, with evidence available.
  - Jensson 4y ago
    The point is that wire fraud is apparently a much more serious crime than fraudulent medical practice, otherwise the fraudulent medical practice would be much easier to sue for. The problem is the law, not the prosecutors.
    - marcus0x62 4y ago
      > The point is that wire fraud is apparently a much more serious crime than fraudulent medical practice, otherwise the fraudulent medical practice would be much easier to sue for. That does not follow, at all. The US Attorney's office cannot bring charges against violations of state law, and medicine is largely regulated by the individual states in the US. Additionally, the evidence in a particular case might make it easier to prove some charges than others. That's not a value judgement that one crime is "worse" than another. That's just reality. The Feds prosecuted Al Capone for tax evasion -- not because anybody thinks tax crimes are more serious than murder, but a) that's what they had jurisdiction over and b) it is what they could prove in court.

jjtheblunt 4y ago

I wonder if patients were not direct customers might be the technicality, whereas they had to go through Walgreens or similar, but I also haven't figured it out.

rs_rs_rs_rs_rs 4y ago

>I'll always be shocked that she was guilty of deceiving investors and not patients Deceiving patients implies the Theranos tech was being used in "production" and I don't think that was the case.

gtk40 4y ago
Does the Walgreens partnership not count because it was more of a public trial but not production?
davidhariri 4y ago
I think it was at Walgreen’s, no?
- brian_herman 4y ago
  No, I think they had a contract but weren't performing tests yet.
projektfu 4y ago
They were running a handful of tests on their proprietary machines. They were also diluting blood samples and running them on off-the-shelf machines. (cf. WSJ, the Dropout podcast)

davidhariri 4y ago

Well said

throwawaymaths 4y ago

I don't recall any patients being hurt by their technology, since they took "real" blood draws and ran analyses on those. I presume those analyses were what made it into whatever lab report. So suppose they screwed up 2% of their cases because they weren't licensed to do this (or did they forward to qwest?) You would still have to find victims to make a damaged claim. The investor damages story seems more straightforward from a legal perspective, but IANAL.

dilap 4y ago
Weren't they using blood draws too small to give accurate results w/ the traditional equipment they were using?
- throwawaymaths 4y ago
  Maybe I misremembered, but I thought they generally had a real draw that they were diluting from to run on their machine, that was also analyzed.
  - antonjs 4y ago
    That's one of the things they were doing, but the other machines they were using weren't designed or tested to use diluted samples. At least the sensitivity of the test would suffer, but really it's out of spec and so unknown.
- danpalmer 4y ago
  From what I remember (from the book Bad Blood), most patient uses fell into one of two categories: either they were drawing a large draw, running on their machines and traditional machines to check correctness, and giving what they deemed correct from these (likely the traditional machine answer), or they were just outright running large samples on traditional machines with no attempt to do anything new. I think there were a few cases of patients getting the wrong results, maybe they were correcting later, but all in all it was not a huge issue for patients given how it was running in practice. This is not to excuse the practices in any way, but I do get why the focus in the trial was not on defrauding patients.

gumby 4y ago

That's an interesting observation. My guess is that the financial statute (wire fraud IIRC?) was easier to prosecute due to being somewhat quantitative and, being used a lot, easier to prosecute with lots of precedent, procedure, and judges with experience in such cases. While hurting patients (is it even "malpractice" when you're not a doctor?) through out and out fraud is probably much harder and probably has lower penalties since in many medical cases "fraud" is fuzzier. But IANAL -- this is just my reasoning about this interesting question as someone who's run companies in the life sciences.

1-more 4y ago
> is it even "malpractice" when you're not a doctor? Also malpractice is a tort, not a crime. You can sue over it, but the state does not prosecute it. This came up in the case of Christopher "Dr. Death" Duntsch [0]. He ended up being prosecuted for "aggravated assault with a deadly weapon" but it was maybe the first(?) time that assault had been used for medical malpractice. [0] https://en.wikipedia.org/wiki/Christopher_Duntsch https://en.wikipedia.org/wiki/Christopher_Duntsch
- gumby 4y ago
  Thanks! Upon reflection, I suppose it could be ordinary consumer fraud to promise one thing and provide another, but my understanding is they drew a cylinder of blood "for verifying the new technology" and then when the new thing didn't work (or wasn't even tried) they could send back the "reference" readings from ordinary instruments, therefore not actually defrauding (or harming) any patients.

beambot 4y ago

For many of these proceedings, the DOJ will pick whichever charges are the most likely for a jury to convict (i.e. simple & unambiguous crime) rather than the most harmful. Once the guilty/not-guilty determination is made, then a judge can (usually) apply discretion to take into account aggregate harm to all stakeholders during sentencing. For another prominent example: Al Capone's tax evasion.

paxys 4y ago

The medical malpractice part is the purview of the FDA, and they did gave her and Theranos plenty of light slaps on the wrist for their transgressions over the years. Things only really got serious when the Waltons, Rupert Murdoch, Betsy DeVos, Larry Elison & co. lost money and convinced the DoJ to get involved.

adventured 4y ago
> Things only really got serious when the Waltons, Rupert Murdoch, Betsy DeVos, Larry Elison & co. lost money and convinced the DoJ to get involved The DOJ got interested after Theranos attempted to defraud the US military, not because of a few rich investors losing money on a venture bet.
- blaser-waffle 4y ago
  I'm sure General Mattis and Kissinger being involved didn't hurt either.

Kalium 4y ago

There was clear evidence that she had personally defrauded investors. The evidence for individual patients and personal culpability was much less direct. Prosecutors went with what they could easily prove.

madrox 4y ago
Indeed. In the end, tax evasion is what brought down Al Capone.

hn_throwaway_99 4y ago

This was a common refrain when the verdict was first announced, and I think it absolutely misses the point. Legal outcomes are about what you can prove. It was very clear that Holmes said "Our product can do x, y, z" to investors, and it's also totally clear she knew this to be false at the time, and it was material. The evidence that she, personally, was guilty of defrauding patients directly was always reaching in my opinion. I followed the trial closely, and were I on the jury I would have voted for the same outcome. The thing I really don't like about the line of reasoning is that it's essentially emotional at its heart: investors are rich and knew they were taking a risk, while patients are the ones who need protection. That may very well be true, but you don't get to just make up outcomes because one group is more powerful than another. The prosecution just failed to prove beyond a reasonable doubt that she was guilty of defrauding patients.

ryanisnan 4y ago
How is saying to investors "Our product can do x, y, z" to investors not ok, but saying it to say Walgreens (and thus customers) is ok?
naasking 4y ago
> That may very well be true, but you don't get to just make up outcomes because one group is more powerful than another. The prosecution just failed to prove beyond a reasonable doubt that she was guilty of defrauding patients. Arguably, court procedures and standards of evidence are also made up and prioritize certain powerful groups over others. Which isn't to say that we shouldn't have rules, I'm just not sure appealing to the rules invalidates a claim that the outcome was unjust.
- origin_path 4y ago
  Which powerful groups do court rules and standard of evidence prioritize?
  - naasking 4y ago
    Those with finances and influence. Or do you think that public defenders and private attorneys yield comparable outcomes? As but one example.