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THE UNITED STATES ASBESTOS SCREENING SCAM – ANALYSIS OF BOGUS MEDICAL REPORTS
Lawrence Martin, M.D.
"Light Grey"? (analagous to B-reader interpretation of "1/0"; $thousands in potential claims)
For the unscrupulous plaintiff-attorney-hired B-reader, every chest x-ray sent to him will be "light grey," i.e., a B-reader x-ray interpretation of "1/0".
The chest x-ray below is negative for asbestos disease, but is "off white," that is, not completely normal, since it is from an ex-smoker who has COPD (chronic obstructive pulmonary disease).
To the PAHP B-reader, the x-ray is not only interpreted as "1/0", but he adds that it is "consistent with asbestosis," because that's what the attorney is paying him for. And how can anyone disagree, when the interpretation is so subjective? In fact there are several ways to prove a chest x-ray was mis-interpreted for claim purposes, although each method is far more costly when compared to the cost of fabricating a single bogus report (see discussion below: How To Show The PAHP Reports Are Bogus).
THE REPORT IS NOT AUTHORED IN GOOD FAITH. These plaintiff-attorney-hired physicians are not stupid (far from it), and they obviously know
what is and is not a legitimate medical report. Thus they would never write a report on real patients that had the same language every time,
the same diagnosis every time, the same omission of key information every time.
For example, if EVERY time a physician evaluated a patient with cough he wrote:
"On the basis of [my review] the diagnosis is allergy to chicken feathers," and simply ignored all
evidence to the contrary (e.g., no documentation of exposure to chicken feathers, or the
x-ray presence of pneumonia, or the findings of sinusitis), he would quickly be marginalized by the medical community and labeled a quack or worse. And if it was learned that the physician was PAID to make that diagnosis (by some Allergy Treatment company, for example) and no other, he could well lose his medical license. But that is exactly the method employed in making asbestos diagnoses by plaintiff-attorney-hired physicians. The difference is, the workers are not their patients, and the reports are only for the attorneys to use in filing claims. Thus, the physicians feel it's OK to simply ignore all counter-vailing medical history, all extant x-ray reports by independent physicians, indeed any medical data that may shed doubt about their assumed diagnosis. They never provide a list of alternative diagnoses, something that is basic to honest physicians writing an honest medical report.
In truth, their reports are not "medical" at all, save for the initials after their name (MD or DO). They are instead boiler-plate, rubber-stamp documents designed solely for the purpose of filing claims and making money.
HOW TO SHOW THE PAHP REPORTS ARE BOGUS. There are several ways to expose the PAHP reports as bogus.
The authors of this study concluded: "There is no support in the literature on x-ray studies of workers exposed to asbestos and other mineral dusts for the high level of positive findings recorded by the initial readers in this report."
An accompanying editorial to the Gitlin, et al article, provocatively titled
"B" readers' radiographic interpretations in asbestos litigation: is something rotten in the courtroom?, noted:
"Multitudes of studies published over the past half century have shown up to a 30% variance in radiologic interpretations of the same chest radiographs. However, the fact is that none of these previously published studies have shown variations to the same extent as is shown in the article by Gitlin, et al...the article by Gitlin et al is disturbing, for it raises the question of whether objectivity and truthfulness among certain B-reader radiologists have been supplanted by partisanship and distortion of or departure from the truth driven by financial gain."
The answer to the questions - posed in the editorial's title and in the above paragraph - are undoubtedly ‘yes’ and 'yes'. Yet, astoundingly, this is the only medically-published editorial that even raises the specter of diagnostic fraud.
IF THE REPORTS ARE OBVIOUSLY BOGUS, WHY ARE THEY ALLOWED IN ASBESTOS CLAIMS?
Much has been written by Professor Lester Brickman and others about the screening scam, and how it was allowed to perpetuate for decades. For in-depth analysis, see the references listed in
The United States Asbestos Screening Scam.
In the aggregate, they provide a good review of its history and mechanics.
Answers to this question are simple and not simple. The simple answer is money. The amount of money generated by the scam is astronomical (billions) and this much money greases a lot of skids: Political contributions to politicians who might otherwise investigate and legislate against the scam. Payments to union leaders who provide the lists of workers and ex-workers screened in the scam, and who look the other way when jobs are destroyed. Payments to screening companies who set up the testing facilities. Payments to doctors who are willing to write bogus reports. And driving it all are the huge fees reaped by the scam's architects, the asbestos plaintiff attorneys. (What's left goes to the claimants, most of whom are satisfied to receive a small percentage of the money awarded in their names for a disease they don't have.)
The not so simple answer has to do with decades of civil justice manipulation by plaintiff attorneys. Professor Brickman writes that the scam was made possible by:
"a civil justice system that has been significantly modified to accommodate the interests of these litigants by dispensing with many evidentiary requirements and proof of proximate cause...mostly in forum-shopped jurisdictions, where judges and juries often appear aligned with the interests of plaintiff lawyers..."
ON THE THEORY CLASS'S THEORIES OF ASBESTOS LITIGATION: THE DISCONNECT BETWEEN SCHOLARSHIP AND REALITY. By Lester Brickman, 2003. (For link, go to Dr. Brickman's publications page at Cardozo Law School.)
In other words, plaintiff lawyers found a way to co-opt the civil justice system in such a way as to make legal defense of bogus claims impratical if not impossible. As result, rather than wasting thousands of dollars defending each individual claim (using any of the methods I outlined above, but with the risk of losing because of forum shopping), the defending companies simply caved and paid a "nomimal" amount for each bogus claim, say a few thousand dollars. (Since each claimant sued numerous companies -- suppliers, contractors, etc.-- the total amount generated by each bogus claim has been estimated to be about $60,000.) With this scheme in place, every x-ray read as "light grey" ("1/0") is then worth a small fortune, with virtually no risk of being challenged
The lawyers found a gold mine, and mined it with total impunity. They came upon a product that in fact has killed and harmed thousands of workers over many decades, and along the way they uncovered some nefarious practices by some companies (e.g., hiding the dangers of asbestos from workers), making the cause seem just and the bogus medical reports seem legitimate. And, as Professor Brickman has so carefully documented, they were able to pursue claims in a fragmented and spineless legal system (Judge Jack in 2005 being a major exception).
In truth, most truly injured workers have long ago been diagnosed and compensated. As result, the vast majority of "asbestos disease" cases found by the screening scam were and are simply the invention of the plaintiff attorneys, made possible by a cadre of unscrupulous physicians who "diagnose for dollars". Our legal system has been a total failure in recognizing and stopping the obvious fraud of the asbestos screening scam. Again, quoting Professor Brickman:
"When in the distant future, we look back at asbestos litigation, we will surely include it among the great scandals in our history along with the Yazoo land frauds, Credit Mobilier, Teapot Dome, the Savings and Loan debacles, WorldCom, Enron and the vast Ponzi schemes that have recently unfolded...bogus medical reports...have been used to extract billions of dollars in settlements from defendants in the tort system...There has been a complete and total failure by state and federal law enforcement agencies to prosecute the doctors who have received tens of millions of dollars for preparing these reports, let alone the lawyers who hired them precisely because of their willingness to provide these diagnoses..."
LESTER BRICKMAN, before The U.S. House Of Representatives Committee On The Judiciary,
September 9, 2011
Web site initially posted December 25, 2011. Last updated April 1, 2012.
The United States Asbestos Screening Scam - References and Internet Sources ||
Asbestos Lung Disease: A Primer
for Patients, Physicians and Lawyers ||
Index of Dr. Martin's Asbestos
Disease Web Sites ||
Lakesidepress home page
Web site initially posted December 25, 2011. Last updated April 1, 2012.