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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.
