Investigations Science

When Does an Error Become a Lie? The Case of the Missing Decimal Point

Imani Gandy

This is a story about Dr. John Thorp and a Missing Decimal Point, an odd mystery that raises questions about when an error becomes a lie, and when—in the context of court proceedings—a lie becomes perjury.

This is a story about the Case of the Missing Decimal Point, an odd mystery that, on my reading, exemplifies the problem with the bogus “science” that underpins the majority of anti-choice legislation. It’s a case that raises questions about when an error becomes a lie, and when—in the context of court proceedings—a lie becomes perjury.

Meet our protagonist, a certain Dr. John Thorp, professor of obstetrics and gynecology at the University of North Carolina-Chapel Hill School of Medicine; deputy director of UNC’s Center of Women’s Health Research; member of the editorial boards of the Obstetric and Gynecological Survey and the British Journal of Obstetrics and Gynecology; and a member of the American Congress of Obstetricians and Gynecologists for more than 20 years.

And also, serial butcher of the facts when it comes to the safety of abortion care in the United States.

Thorp is important because he’s one of a small handful of peripheral doctors and scientists trotted out by lawmakers who are hell-bent on destroying the constitutional right to choose whether to carry a pregnancy to term. States have paid thousands of dollars to Thorp and his ilk for their “evidence” in legislative hearings and court cases. Like climate change denialists, these “experts” turn up to contradict the overwhelming scientific consensus about abortion, creating the false impression of medical debate.

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Now, to this pesky Missing Decimal Point.

In multiple court cases, Thorp has presented an expert report that claims the complication rate from abortion is between 2 and 10 percent. The cases have all involved admitting privileges laws—laws that require abortion providers to be authorized by local hospitals to admit patients to their emergency rooms. These laws make zero sense for the following reason: they’re unnecessary because the staff at the emergency rooms admit patients to the emergency rooms. Admitting privileges for abortion providers are wholly redundant. They also reflect the antiquated “country-doctor” model of medicine under which a physician who performs the initial procedure would consistently provide care for any complications that may arise afterwards. It’s a model that does not reflect twenty-first century medicine as it relates to low-risk procedures like abortion: EMTs transport patients to the closest available emergency room usually without concern for whether the doctor who performed the procedure is authorized to admit patients to that particular hospital.

Undeterred by reason or reality, anti-choice lawmakers have consistently claimed that these laws are necessary due to false claims about the danger of abortions. Thorp has been one of the only witnesses willing to give evidence to support those claims. Specifically, he has claimed that the high complication rate justifies the admitting privileges requirements.

In connection with Planned Parenthood of Wisconsin, Inc. v. Van Hollen, the lawsuit challenging Wisconsin’s admitting privileges law, Thorp supplied an expert report stating that the abortion complication rate range is somewhere between 2 and 10 percent, but could not point to a single study to back up his assertion.

This claim was contested by an expert for plaintiffs, Dr. Douglas Laube, as well as a neutral court-appointed expert, Dr. Serdar Bulun. They each reviewed several studies, none of which found a complication rate greater than 1.9 percent for both first- and second-trimester abortions.

To underline how important this is, Thorp provided a range, not an average. And his range began at a higher number than the very highest complication rate found by the other experts. To put this in perspective, the Guttmacher Institute—recognized as an authority on abortion statistics—says the complication rate in first-trimester abortions (92 percent of abortions are performed during the first trimester) is closer to 0.05 percent, a minuscule risk.

During the colloquy with the court, a formal on-the-record conversation that District Court Judge William Conley convened in an attempt to reach a consensus between Thorp, Laube, and Bulun about abortion complication rates, Thorp repeated his claim that the abortion complication rate is 2 to 10 percent. He did not waiver from this claim.

When pressed at trial, however—a mere two and a half hours after the colloquy with the court—Carrie Flaxman, an attorney for Planned Parenthood, dragged the truth out of him.

“I want to turn back to your estimate of 2 to 10 percent complication rate, which you’ve now said in the courtroom for the first time is 0.2% to 10%; is thatam I getting that right?” Flaxman asked Thorp.

“Yes ma’am,” Thorp responded. “That thing misses a decimal.”

“You have a number of expert reports from other cases. They all miss a decimal, don’t they, sir?”

“They’re consistently missed [sic] the decimal,” Thorp replied.

That was Thorp’s scientifically rigorous explanation for his wildly inaccurate complication rate range: “That thing misses a decimal.” In other words, he inflated complication rates by a factor of ten and then continued repeating erroneous data.

That exchange led to a blistering opinion from Judge Conley.

“The court has several concerns with Dr. Thorp’s credibility,” Judge Conley wrote. “In light of the deep flaws in his analysis and his testimony, which often came off more as advocacy than expert opinion, the court finds little to credit Dr. Thorp’s opinions of the relative risks of abortion to child birth or comparable invasive procedures,” wrote Judge Conley.

Ouch.

Judge Conley went on to cast doubt over Thorp’s testimony in other cases, where states had also relied on his “expert” testimony to support bogus laws.

TIMELINE OF EVENTS

September 2013: Thorp submits an expert report in the Alabama lawsuit claiming that the abortion complication rate is between 2 and 10 percent.

November 2013: Thorp gives a deposition in the Alabama lawsuit and discovers the missing decimal point. He would later testify during the Alabama trial that he discovered the error at this time.

March 2014: Thorp submits an expert report in the Wisconsin lawsuit containing the incorrect percentage points.

April 2014: Thorp also submits to the court in Alabama a declaration containing the incorrect 2 to 10 percent abortion complication rate.

May 2014:  In Wisconsin, Judge Conley holds a colloquy between plaintiff and defense experts at 8:00 a.m. on May 29 in an attempt to reach a consensus regarding abortion complication rates. During that colloquy, Thorp repeats the incorrect abortion complication rate.

May 2014: At 10:30 a.m.—an hour and a half after the colloquy with the court began, during which Thorp did not waiver from his claim that the abortion complication rate is 2 to 10 percent—Thorp takes the stand. During cross-examination, Thorp testifies that the 2 to 10 percent abortion complication rate is incorrect and that the correct rate is 0.2 to 10 percent.

July 2014: During the Alabama trial, Thorp testifies that he discovered the error with his complication rate—the missing decimal point—in November 2013.

“Dr. Thorp has not only been retained in a number of cases to provide testimony supporting abortion regulations, including similar challenges to admitting privileges requirements [in Alabama and Texas], but has also submitted amicus curiae briefs on his own behalf to the U.S. Supreme Court in support of abortion-related regulations.” (Emphasis in original.)

“His extensive involvement in lawsuits supporting abortion regulations calls into question his ability to separate personal beliefs from the medical science surrounding these regulations,” Judge Conley continued.

Shorter Conley: Thorp’s evidence is wrong, and he’s a biased witness. Pretty hard for an expert witness to recover from those blows. Indeed, Thorp seems to have become a liability for the state of Wisconsin.

It could have been worse, though.

As devastating as Judge Conley’s opinion is to Thorp’s credibility, he refrained from making any statements about Thorp’s honesty. He certainly could have, however, because on more than one occasion during the course of the Wisconsin lawsuit, Thorp submitted documents and offered to the court testimony containing false information.

And as we all know, knowingly submitting false information in a court has a special name. It’s called perjury, and it’s a crime. To be clear, we can’t know Thorp’s state of mind when he made these incorrect claims in Wisconsin in 2014. We asked him, via email, whether he could account for submitting erroneous information, but he didn’t reply.

Did Thorp make a simple mistake? After all, it would be very easy to type “2” instead of “0.2.” Or was there something more nefarious at play? If it were a simple mistake, why did Thorp continue to submit the erroneous information to more than one court after he was made aware of the mistake? More importantly, why did Thorp stick to the inflated complication rate when Judge Conley questioned him during the colloquy with the court?

Even the most cursory review of Thorp’s testimony raises serious ethical questions about the Case of the Missing Decimal Point.

Had Thorp been made aware of his mistake during the Wisconsin trial, and then made every effort to correct the misinformation, it would be easy to chalk up the Case of the Missing Decimal Point to human error.

But that’s not what happened.

In a phone interview with Rewire, Eric J. Segall, a professor at Georgia State University College of Law, who specializes in constitutional law, says Thorp’s repeated “errors” give the impression that there may be more at play than simple mistakes.

“If your facts are correct, it appears he misled the court in a kind of way that should get him into trouble. I think that’s pretty clear,” Segall said.

In fact, Thorp knew his previous testimony of an inaccurate complication rate was a gross exaggeration several months before he took the stand in May 2014 to advocate for Wisconsin’s admitting privileges law.

In November 2013, Thorp gave a deposition in connection with Planned Parenthood Southeast, Inc. v. Strange, the lawsuit challenging Alabama’s admitting privileges law. It was during that deposition that one of the attorneys for Planned Parenthood—the same attorney, Carrie Flaxman, who would question him at trial in Wisconsin—pointed out the error to Thorp. (He would later testify during the Alabama trial that he knew about the error in November 2013.)

Five months after Thorp knew about the error, he nevertheless submitted to the Alabama court a declaration signed under penalty of perjury which contained the same falsehoods.

That’s either mighty forgetful, monstrously careless, or worse.

This led Myron Thompson, the District Court judge who struck down the Alabama law as unconstitutional in a whopping 172-page order, to write a supplemental opinion in which he discussed at length the admissibility of certain expert opinions, including Thorp’s. In that supplemental opinion, Judge Thompson wrote that “Thorp displayed a disturbing apathy toward the accuracy of his testimony.”

“In his expert report, [Thorp] opined that the low-end estimate of the complication rate was two percent, based on an article that he had written with the same claim. In fact, the range supported by his article is 0.2%,” Judge Thompson wrote. “Although he was confronted with the error during his November 2013 deposition, he submitted a declaration to the court in April 2014 that again claimed the two percent figure.”

Ultimately, Judge Thompson would discredit Thorp’s testimony on complication rates entirely. “Other choices that [Thorp] made in developing his estimates seem to be driven more by a bias against abortion and a desire to inflate complication rates than by a true desire to reach an accurate estimate of the dangerousness of abortion procedures.” (Emphasis added.)

And months after Judge Thompson discredited Thorp, Judge Conley would follow suit, writing there were “multiple errors in Dr. Thorp’s citations to studies that purportedly supported this range, and his methodology in compiling these statistics lacked analytical rigor.”

This point cannot be understated: Thorp submitted documents containing erroneous information to the court in Alabama. After being confronted about it in November 2013, Thorp continued to submit documents containing the same erroneous information, not just to the court in Alabama, but also to the court in Wisconsin.

Furthermore, when Thorp had an opportunity to clarify his error during the colloquy between experts and Judge Conley in the Wisconsin lawsuit, he did not do so.

Given the facts, the solution to the Case of the Missing Decimal Point seems fairly obvious.

Thorp has proven that he is either too incompetent to serve as an expert witness in these admitting privileges law cases, or worse—that he is purposefully misleading the court.

Yet, as we have seen with Vincent Rue—who continues to be paid thousands of dollars by states looking to defend abortion restrictions even though, as Kathryn Kolbert writes in Slate, he was thoroughly discredited in the trial court phase of Planned Parenthood v. Casey in 1992—states looking to restrict abortion access have no qualms about hiring experts of dubious trustworthiness.

As such, despite Thorp’s questionable behavior in the Alabama and Wisconsin lawsuits, there’s no guarantee that the next state to litigate the constitutionality of an admitting privilege law won’t call upon Thorp and pay him thousands of dollars to offer his “expert” opinion about abortion complication rates. And there’s also no guarantee that Thorp won’t continue submitting erroneous information to courts in an attempt to, as Judge Thompson aptly put it, “inflate complication rates.”

That states are wasting thousands of taxpayer dollars litigating laws like these and hiring discredited consultants and experts, like those found in Rewire’s gallery of False Witnesses, illustrates the indefensible nature of admitting privileges laws.

Professor Segall agrees. “These laws are so unrelated to anything resembling a legitimate medical interest that the state has to continue to rely on data that its own star witness should have known wasn’t accurate.”

“This is one more piece of evidence that the state’s data is wrong and that states should stop defending these laws,” Segall said.

As more of these admitting privileges laws wend their way through the courts, it’s important to realize that many of the so-called experts upon whom anti-choicers rely traffic in agenda-driven science and are not trustworthy. (It’s no surprise that Thorp is featured in the False Witnesses gallery.)

If Thorp had made one mistake, it would likely not be noteworthy. Everyone makes mistakes. Certainly no one, even the most reputable expert in a given field, is immune to the occasional error. But at what point does an error become a lie? And when courts are involved, at what point does a lie become perjury?

And at what point should taxpayers hold their state attorneys general accountable for paying thousands of dollars to an “expert” who has supplied misinformation to and been discredited by more than one court?

In the curious case of John Thorp and the Missing Decimal Point, these questions demand answers.

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