News from May, 2009

Several years ago, plaintiff lawyers specializing in asbestosis litigation began to run out of clients. It didn't take long for them to discover a new particulate lung disease, silicosis, to pin on manufacturers of grinding and sandblasting equipment, auto and machine shops, and a host of other deep pocket entities. The problem was: How to find plaintiffs with the condition?
So they set up mobile screen units in the parking lots of Walmarts, Home Depots and other heavily trafficked places and erected signs offering free chest x-rays to anyone who ever did grinding, sandblasting or anything else that might result in aerosolization of silica. A clerk in these units took a brief employment history, after which a screening chest x-ray was obtained. People subjected to this process were then told that they would soon be receiving information about their test results.
Sure enough, many such individuals eventually got letters from one of several law firms informing them they had silicosis and were entitled to a cash settlement, even though they had no symptoms of any lung disease at the time. The law firms, moreover, generously offered to represent the victims of this serious disease and take care of all the details.
Altogether, around 10,000 such silicosis cases appeared in federal courts across the land, mostly in the Deep South, centered on Mississippi, Louisiana and Texas. These personal injury claims were filed against the large companies like 3M that manufactured grinding wheels, sandpaper and related products.
Through accident or design, the cases were consolidated by the federal judiciary into the Corpus Christi courtroom of U.S. District Judge Janice Graham Jack, a Clinton appointee who at one time represented Planned Parenthood of Texas. Judge Jack, a former nurse married to a cardiologist, must have realized something was amiss when just seven doctors diagnosed all 10,000 cases of silicosis. Moreover, legal filings by defense attorneys revealed that thousands of the silicosis plaintiffs were previously involved in asbestosis litigation, thereby claiming to be suffering from both conditions. The world's medical literature, however, contained but a single confirmed case of combined asbestosis and silicosis, occurring in a Chinese worker who spent years sandblasting asbestos from old buildings without wearing a respirator or mask.
The plaintiffs' lawyers resisted efforts by the defense to depose the so-called "diagnosing doctors," the handful of radiologists and occupational medicine physicians who confirmed the disease in so many people.
Judge Jack, in one of the most remarkable events in American jurisprudence, ruled in favor of the defense, allowing the depositions to go forward. Furthermore, she ordered that the depositions be held in her courtroom, so she could  rule immediately on any objections. By scheduling the depositions in her own courtroom, Judge Jack functioned more like a French prosecutorial magistrate  (who questions witnesses and defendants) than a neutral American judge. Moreover, federal jurists, unlike most other judges, often question witnesses in an effort to get to the truth.
What Judge Jack learned during these depositions will be the subject of my next blog.
The consequences of her inquisition and ruling for the seven diagnosing doctors will be analyzed in the blog after that.

I'll complete the series with the lessons orthopaedic surgeons can learn from In Re: Silica Multi-District Litigation.

      In my last blog, I provided background information about how 10,000 claims for compensation of "victims" of silicosis suddenly flooded America's state and federal courts. I also mentioned that thousands of the silicosis plaintiffs were also involved in asbestosis litigation, even though but a single case of combined silicosis and asbestosis existed in the medical literature.        The first doctor deposed was George H. Martindale, a radiologist from Mobile,Alabama. He diagnosed 3,617 plaintiffs with silicosis, employing the identical phraseology in every report: "On the basis of the medical history review, which is inclusive of a significant occupational exposure to silica dust, physical exam and the chest radiograph, the diagnosis of silicosis is established within a reasonable degree of medical certainty."        When deposed, Dr. Martindale backed down rapidly, contending that he did not diagnose any plaintiff with silicosis. In fact, he testified that he did not even know the criteria for the condition. During the deposition, Dr. Martindale withdrew every diagnosis of silicosis he had made!        Dr. Martindale admitted he was paid by N&M, the company with the x-rays trailers. That entity, in turn, raked in $750 for each person diagnosed with silicosis that signed up with the law firm behind the scheme.

       The plaintiffs' lawyers acted shocked, shocked, after Dr. Martindale "flipped." One told Judge Jack, "It caught us by great surprise." Moreover, they contended that the defense attorneys somehow "got to" Dr. Martindale, flipping him.         Judge Jack responded to this challenge: She ordered that defense lawyers steer clear of the diagnosing doctors and, in a remarkable move, ordered all future doctor depositions to be conducted in her courtroom.        Dr. Kevin Cooper, a general practitioner, was one of the doctors who sat in the parking lot x-ray trailers, asked a couple of questions of each potential plaintiff from a form provided by N&M and listened to the their chests. He testified that it was "easy work" because his role was exceedingly limited "compared to what I do in my normal practice." He stated: "not having to make a call about anything whatsoever, not having to make a diagnosis, write a prescription, do anything like that, that's easy work."        Dr. Glynn Hilburn, a general surgeon, did the same, lured by a fee of $5,000 per day.        In spite of the fact that Drs Cooper and Hilburn were diagnosing doctors, "Both doctors [in their depositions] emphasized that they did not diagnose any of the plaintiffs with silicosis. Indeed, both doctors testified that they had never diagnosed anyone with silicosis" according to Judge Jack.        At the epicenter of this medical-legal cesspool stood Dr. Ray Harron, a radiologist. In 1995, at the age of 63, Dr. Harron testified that he "kind of gave up real medicine and [he has] just been doing this pneumoconiosis work." From 1995 until 2005 (when the silicosis litigation blew up in his face), Dr. Harron has worked exclusively for plaintiffs' lawyers, reading chest x-ray films and diagnosing asbestosis and silicosis for use in litigation. In fact, all of Dr. Harron's work was arranged by N&M, the trailer company. In many cases, Dr. Harron provided the two-minute trailer examinations, and in others, he just read the films. However, in every one of the approximately 6,350 reports (2,600 of which were diagnosing reports and the remainder were x-ray reports) from Dr. Harron, he admitted that he failed to write, read, or personally sign the actual report. Dr. Harron described his conclusions this way: "it's a legal standard and not a real diagnosis."        When, on occasion, Dr. Ray Harron wasn't available for exams, his son, radiologist Andrew Harron, stepped in, following essentially the same protocol as his father. He thereby proved that, when it comes to medical ethics, the apple doesn't fall far from the tree.         It appears that Judge Jack was most disappointed with Dr. Barry Levy, author of a widely used occupational medicine textbook. He diagnosed 1,389 plaintiffs with silicosis. As Judge Jack put it: "For the past 18 years, Dr. Levy has not been a treating physician, but instead earns his income through consulting in litigation on behalf of plaintiffs. His standard billing rate is $600 per hour, and he has the option of charging $900 per hour for weekend and after hours work...Dr. Levy billed approximately $34,000 simply to prepare for his testimony" in her courtroom.        Dr. Levy, working in Massachusetts, never examined any plaintiffs. He was asked during deposition if he might have been practicing medicine in Mississippi without a license. He testified "...I was not practicing medicine, that I was providing diagnostic information in the context of medical/legal consultation."        Relying on the so-called physical examinations performed in the trailers and x-ray interpretations by others, Dr. Levy "diagnosed" silicosis in 1,239 plaintiffs in 72 hours, devoting less than four minutes to each evaluation. In his textbook, however, Dr. Levy wrote that it takes about 90 minutes to obtain a detailed silica dust exposure and medical history from a patient evaluated for silicosis. Such thoroughness was necessary, Dr. Levy stated in his book, because so many pulmonary conditions share radiographic features with silicosis.        Judge Jack, however, concluded that: "...it is clear that Dr. Levy had an agenda: diagnose

silicosis and nothing else."        The other diagnosing doctors provided equally damning testimony. In my next blog, I'll review some of Judge Jack's findings, and the impact her ruling had on the litigation and on America's business community. 

In my previous two blogs, I described the circumstances leading to mass tort litigation involving 10,000 claims of silicosis, diagnosed by a handful of doctors who examined prospective patients in X-ray machine trailers parked near K-Marts. Each of the diagnosing doctors backed down and withdrew their diagnoses after being grilled during depositions.

U.S. District Judge Janis G. Jack, after hearing the diagnosing doctors' testimonies, disqualified them from participating in the litigation, essentially quashing the lawsuits. Her In re: Silica Products Liability Litigation, Order No. 29 is so full of insights about the dangers of medical-legal corruption of the judicial process, that I've simply quoted her opinion at length below.

Judge Jack wrote: "...In the majority of cases, these diagnoses are more the creation of lawyers than of doctors. Conversely, virtually all of the challenged diagnosing doctors seemed to be under the impression they were practicing law rather than medicine. They referred to the Plaintiffs as "clients" rather than "patients", and they utilized shockingly relaxed standards of diagnosing that they would never have employed on themselves, their families or their patients in their clinical practices....

"And, finally, despite diagnosing a serious and completely preventable disease at unprecedented rates, not a single doctor even bothered to lift a telephone and notify any governmental agency, union, employer, hospital or even media outlet, all of whom conceivably could have taken steps to ensure recognition of currently-undiagnosed silicosis cases and to prevent future cases from developing.

"One can imagine the outcry that would have resulted had these doctors kept silent after diagnosing thousands of new cases of avian flu or mad-cow disease. Had these doctors been acting as doctors--and had they genuinely believed their diagnoses were legitimate - they would have taken this simple and humane step. Instead, these diagnoses were about litigation rather than health care. And yet this statement, while true, overestimates the motives of the people who engineered them. The word "litigation" implies (or should imply) the search for truth and the quest for justice. But it is apparent that truth and justice had very little to do with these diagnoses - otherwise more effort would have been devoted to ensuring they were accurate. Instead, these diagnoses were driven by neither health nor justice: they were manufactured for money. [Emphasis added]

"The record does not reveal who originally devised this scheme, but it is clear that the lawyers, doctors and screening companies were all willing participants....

"This explosion in the number of silicosis claims...suggest perhaps the worst industrial disaster in recorded world history. ...Moreover, given the sheer volume of claims - each supported by a silicosis diagnosis from a physician - one would expect the CDC or NIOSH to be involved, examining and responding to this enormous epidemic. One would expect local health departments and physician groups to be mobilized. ...But none of these things have happened. There has been no response from OSHA, the CDC, NIOSH or the American Medical Association to this sudden, unprecedented onslaught of silicosis cases....

"In short, this appears to be a phantom epidemic, unnoticed by everyone other than those enmeshed in the legal system: the defendants, who have already spent millions of dollars defending these suits; the plaintiffs, who have been told that they are suffering from an incurable, irreversible and potentially fatal disease; and the courts, who must determine whether they are being faced with the effects of an industrial disaster of unprecedented proportion - or something else entirely....

"Limited judicial resources are consumed weeding out meritless claims, costing the judiciary, costing other litigants whose suits are delayed, and ultimately costing the public, who pays for a judicial system that is supposed to move with some degree of speed and efficiency. Defendant companies pay significant costs litigating meritless claims. And what harms these companies also harms the companies' shareholders, current employees, and ability to create jobs in the future. And, potentially, every meritless claim that is settled takes money away from Plaintiffs whose claims have merit."

This is the final blog in my Silicosis Epidemic series. Here I'll touch on the remarkable consequences of Judge Jack's ruling on the bogus medical reports "confirming" the diagnosis of Silicosis in patients that did not have the disease.

Judge Jack's ruling had immediate and widespread fallout. The diagnosing doctors soon became targets of state and federal inquiries. Several lost their licenses to practice medicine. Their reports in asbestosis litigation were disallowed by increasingly skeptical judges throughout the land, as were those of other equally putrid practitioners.

The U.S. Congress, struggling with legislation to augment the Asbestosis Trust Fund, hauled the diagnosing doctors in for testimony. They all hid behind Fifth Amendment protection from self-incrimination and clammed up tight. Subsequent judicial opinions and state legislation ended the need for additional monies for the Trust Fund, as the number of asbestosis claims plummeted, although not soon enough to prevent 85 companies from going bankrupt.

Plaintiff attorneys complained that Judge Jack's opinion so spooked radiologists federally qualified to read pneumoconiosis cases that none could be found to support the claims of those truly injured by aerial particulate exposure.

So what does Judge Jack's Order No. 29 have to do with orthopaedic surgery, a profession usually unstained by mass tort attorneys? As a former health care professional, Judge Jack shined a light on the oft-neglected impact bogus diagnoses have on persons so informed. Here's how she put it: "In the case of the Plaintiffs who are healthy, at least some of them can be expected to have taken their diagnoses seriously. They can be expected to have reported the diagnoses when applying for health insurance and life insurance, potentially resulting in higher premiums or even the denial of coverage altogether. They can be expected to report the diagnoses to their employers and to the Social Security Administration. And they can be expected to report the diagnoses of this incurable disease to their families and friends. These people have been told that they have a life-threatening condition... But it should not be forgotten that a misdiagnosis potentially imposes an emotional cost on the Plaintiff and the Plaintiff's family that no court can calculate."

Misdiagnoses for medical-legal purposes occur in orthopedics as well. Workers injured on the job, plaintiffs in personal injury lawsuits, and persons filing for disability benefits often interact with orthopedic surgeons on referral from a lawyer. In many cases, soft tissue injuries that don't show up on imaging studies cause the symptoms. To boost a claim's value, or provide some justification for protracted treatment or surgical intervention, a treating practitioner may describe normal age-related findings on diagnostic testing as pathologic processes causing the symptoms.

Patients, hearing that they have "three crushed discs" usually believe what they've been told. As with a false silicosis diagnosis, patients tell their family and friends the bad news. They are required to include such diagnoses on insurance application forms. Moreover, even when the patient recovers from the symptoms, the diagnoses stay alive as long as the evaluation's record is stored. Years later, if a person sustains a serious compensable injury, the pay-out may be reduced by the existence of an earlier bogus diagnosis.

The process of transforming normal findings into pathologic entities is called "medicalization." It's an all too common phenomenon in American society and around the world. Often times, a marketing ploy stands behind the phenomenon. Bad breath was turned into "halitosis" by a marketing guru working for Listerine mouthwash. Shyness has morphed into Social Anxiety Disorder, requiring medication benevolently provided by companies heavily funding psychiatrists who promoted the transformation. Meanwhile, their colleagues drug ants-in-the-pants boys into compliant lassitude based on one of several diagnoses.

The Code of Ethics of the American Academy of Orthopaedic Surgeons contains the following two sentences in section V ("Professional Relationships"), paragraph C: "Orthopedic surgeons are frequently called upon to provide expert medical testimony in courts of law. In providing testimony, the orthopedic surgeon should exercise extreme caution to ensure that the testimony provided is nonpartisan, scientifically correct, and clinically accurate."

I recommend that orthopaedic resident education must begin to emphasize the adverse impact exaggerated diagnoses have on patients. While I realize that practitioners evaluating and treating claimants on behalf of lawyers may sincerely believe that they are helping those patients by increasing a claim's monetary value, orthopedic surgeons in this position must understand that, aside from the heavy societal cost attendant to such amplification, it is the patient who suffers the most when exaggerated diagnoses are proffered.