2009/05/20
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.
