Mass Screening for Asbestos Disease:A Medical Scam

Lawrence Martin, M.D.Associate Professor of Medicine

Case Western Reserve University School of Medicine, Clevelandlarry.martin@adelphia.net

Presented at:

U.S. Chamber of Commerce Institute for Legal Reform

Washington, D.C.July 20, 2005

Mass Screening for Asbestos Disease:A Medical Scam

• Two principal types of non-malignant asbestos disease:  – asbestosis (scarring within the lungs;

usually causes symptoms and may be fatal) – asbestos-related pleural scarring (affects

only lining of the lungs; almost never causes symptoms)

• 800,000+ attorney-generated claims for these conditions, mostly for asbestosis; both conditions are rare in everyday pulmonary practice.

• Conclusion: Diagnoses have been ‘manufactured’

How Asbestos Claims are Manufactured

• Plaintiff-attorneys identify factories that ever used asbestos products, or contained asbestos in their physical structure (e.g., overhead pipes)

• Attorneys solicit workers/ex-workers for a free “screening chest x-ray”; x-rays are taken at local hotel, union hall, or in a traveling van.

• Screening chest x-rays are read by attorney-hired ‘B-readers’, physicians certified by NIOSH to read (interpret) chest x-rays of dust-exposed workers. They passed “Part B” of a 2-day training course.

• Once a ‘diagnosis’ is made from the screening chest x-ray, one or more asbestos disease claims is filed against companies in any way associated with asbestos in that factory; often multiple claims per worker.

Plaintiff-attorney hired B-readers (PAHBRs)

• All are physicians.• Estimated 500-600 B-readers in the U.S. Only a

small number has been involved with the plaintiff–attorney asbestos screening process, each reading hundreds or thousands of chest x-rays.

• PAHBR-generated diagnoses are the medical basis for almost all asbestos disease claims in the U.S.

• Their diagnostic methodology is self-serving, non-objective, and ripe for abuse.

Interpretation of a chest x-ray is subjective

In asbestos screening exams, ‘reading a chest x-ray’ means:

1) Describe type and extent of any abnormal shadows (either inside or lining the lungs).

2) Comment on possible diagnoses based on abnormal shadows.

Chest X-ray Interpretations by PAHBR

1) They ‘over-read’ extent of abnormal shadows. In one study (Gitlin, et al 2004), blinded review by radiologists showed disagreement with PAHBR >90% of cases (i.e., PAHBR see shadows that aren’t there).

2) They make unwarranted diagnoses. Their diagnosis from the over-reading is seldom medically warranted.

– Multiple potential causes for abnormal shadows on a chest x-ray. PAHBRs only come up with one: asbestos exposure.

The asbestos screening METHODOLOGY explains why mis-diagnosis is rampant

1. Sole purpose of soliciting workers for screening chest x-rays is to file claims.

2. No attempt to screen objectively. Only a handful of loyal PAHBRs are used in the scam, and they are paid (directly or indirectly) by attorneys who stand to profit from every positive diagnosis.

3. An estimated $60,000, on average, is paid out per asbestos claimant by all defendants (i.e., one abnormal x-ray report = $60,000).

(continued)

The screening METHODOLOGY explains why mis-diagnosis is rampant (cont.)

4. Each PAHBR knows the following when reading attorney-generated screening chest x-rays:

a) he will not be shown films of people claiming no asbestos exposure (i.e., no control x-rays to interpret);b) there will be no outside audit of his readings;

c) if he pleases the attorneys he can read hundreds or thousands more chest x-rays, and make a ton of money.

5. If a clinical exam is needed, the examiner is another attorney-hired physician who just echoes the initial PAHBR report, and makes a clinical diagnosis “with reasonable medical certainty.”

Asbestos Screening Methodology• If the claimants were real patients, this diagnostic methodology

would be condemned, since it:– Makes serious diagnoses with ‘reasonable medical certainty’ from just a

single chest x-ray, a clear violation of standard clinical practice. No attempt is made to confirm the screening diagnosis with more sophisticated studies (e.g., a chest CT scan);

– Does not consider the patient’s past medical history, including previous x-rays, operations, etc., that might affect the screening diagnosis;

– Ignores alternative diagnoses that might explain an abnormal chest x-ray;– Gives many claimants a phony (but serious) diagnosis, i.e., asbestosis,

without counseling or concern for outcome. (see Egilman & Bohme. Attorney-directed screenings can be dangerous. Am J Ind Med 2004;45:305-307.)

Claimants not real patients

Plaintiff-attorney-hired physicians usually write on each report:

“My evaluation does not constitute a doctor-patient relationship.”

-------Variable legal interpretations regarding liability: See Baum

K (MD & JD). Independent Medical Examinations: An Expanding source of physician liability. Annals Internal Med 2005;142:974-78.

PAHBR screening methodology is biased, non-scientific and unethical. How do these doctors get away with it?

1) Courts have routinely allowed blatantly-manufactured diagnoses into evidence. Despite the horrific consequences (numerous companies put out of business, hundreds of thousands of jobs lost or not created) Congress has been unable/unwilling to correct the problem.

2) Defendants have rarely challenged this bogus screening methodology. Instead, defending companies usually just pay for all phony claims, especially when bundled with a few legitimate ones (e.g., malignant mesothelioma).

3) Academic pulmonary community has either been silent about the screening scam or, in several instances, accepted its diagnoses as valid: in effect, sanctioning a methodology that is non-scientific and medically unethical.

 

The academic pulmonary community

is silent

• Almost no concern for the phony epidemic of “asbestosis” created by plaintiff attorneys

• No editorials decrying this obviously non-scientific screening process

• Total lack of discussion of the problem at national meetings

Some academic pulmonary physicians accept and condone the bogus screening methodology

• Many nationally-recognized ‘asbestos experts’ are plaintiff-oriented, heavily biased against corporations ever involved with asbestos, and as a result leave science at the door when it comes to asbestos diagnoses.

• They accept junk-science methodology, ignore common medical principles regarding diagnosis, and attack studies that show PAHBR over-diagnose chest x-rays.

• Journal editors either embrace them or look the other way.

Two major U.S. lung disease organizations

American College of Chest Physicians American Thoracic Society (Journal: Chest) (Journal: AJRCCM)

The academic pulmonary community accepts and condones – an example from Chest (ACCP)

• Medical article – Changing patterns in asbestos-induced lung disease -- published in Chest, February 2004. Authored by 4 academic physicians from 3 different medical schools.

• Article’s conclusion: There is a rising incidence of asbestos lung disease in the U.S.• Data in this article consisted of thousands of 'positive' chest x-ray reports of asbestos

disease, all made by PAHBR and all accepted as valid by the authors. No objective confirmation of diagnoses, rendering the conclusions invalid and the article “junk science.”

• Chest’s editor-in-chief refused to publish a rebuttal letter, stating: “The ACCP and Chest do not wish to enter into any more asbestos controversy. Sorry.”

Complete details, including all correspondence, on web site www.lakesidepress.com/Asbestos/asbestos-index.htm

The academic pulmonary community accepts and condones – an example from AJRCCM (ATS)

•The 2004 ATS Official Statement “Diagnosis and Initial Management of Nonmalignant Diseases Related to Asbestos” is a major review, widely quoted in legal and medical circles. It was authored by a panel of 11 physicians, most of whom are provably biased (pro-plaintiff) in the area of asbestos disease diagnosis.

•ATS made no attempt to achieve balance in the makeup of its author committee. The result: a heavily flawed, seriously biased, non-scientific “Official Statement” on asbestos disease diagnosis.

The 2004 ATS Asbestos Statement presents both scientific and ethical problems

•Does not disclose pro-plaintiff bias among authors & advisors•Contains several logical fallacies and scientific mis-statements•Omits numerous key references•Accepts “junk science” conclusions as valid•Ignores mass screening abuse and “current practice” of asbestos disease diagnosis in U.S.

Bias of some physicians responsible for the 2004 ATS Official Statement

ATS past president (2002, in letter to ABA): “significant asbestosis can be present

with…even a normal chest x-ray.” ATS past president (2003, in letter to Senators Hatch & Leahy): “The ATS does

not have a position on the need for, merits of, or construction of asbestos litigation reform legislation.”

ATS Statement author (on his web site): “Over the past 12 years I have treated thousands of persons with diseases associated with asbestos.”

ATS Statement author (in a medical review): “We can already see how asbestos-related diseases in people exposed to environmental “background levels” of asbestos are increasing.”

ATS Statement author (in testimony before NIOSH): “Asbestos is one of the leading causes [of lung cancer] among non-smokers, and occurs at dramatically high rates among asbestos-exposed smokers.”

Advisor to ATS author panel (in journal editorial): “The problem of over diagnosis [of asbestos disease], if it exists, is not any failure of these criteria, but only failure to apply them.”

Asbestos ‘junk science’

• Junk science has long plagued medicine; the usual motive for its practitioners is money.

• Academics are not immune. However, in academia shear bias seems to be the major corrupting influence:– anti-capitalist; anti-corporation– pro-plaintiff; pro-labor

• Like any other group, all physicians have biases regarding socio-economic-political issues. This is normal.

• It is not bias per se that is the problem, but the fact that bias has been allowed to influence major medical organizations and publications: to, in effect, subvert science in the area of asbestos disease diagnosis.

Numerous specific criticisms regarding anti-science, pro-plaintiff bias of ATS Statement

ATS authors’ response to this criticism:“Given that the criteria require evidence for

nontrivial exposure to asbestos… and the criterion requiring exclusion of alternative diagnoses, misdiagnosis is unlikely in practice…”

CommentIn fact, misdiagnosis is extremely

common “in practice,” since the main “practice” of asbestos diagnosis is by plaintiff-attorney-hired physicians. This fact was completely ignored in the ATS review.

 

Four letters published March 2005, criticizing the ATS Statement.

For example, the article states that smoking almost never causes x-ray changes that could be confused with early asbestosis. This is factually incorrect, based on a significant body of medical literature which was not referenced in the ATS article. As noted in one letter: “To disregard this evidence discredits the American Thoracic Society as a scientific body.”

The 2004 ATS Asbestos Statement: scientific and ethical problems

Bottom line: Because ATS is a major medical organization, and

the only one with an “Official Statement” on asbestos disease, the article’s out-of-context ‘one-liners’ and scientific mis-statements are ripe for quoting by plaintiff attorneys in support of their made-up claims.

An actual deposition (mine!)May 2005

Q. And do you disagree with that statement? [ATS statement regarding smoking effects on chest x-ray]A. It’s incorrect.Q. Okay. You disagree with that statement?A. No. It’s incorrect.Q. Okay. Do you dispute that that statement was made by the American Thoracic Society?A. The statement is incorrect as it stands.

(continued)

Deposition (continued)A. [ATS] published this article and [you] did not

quote the entire medical literature relevant to this problem. There are four letters published in the journal which must be read to put this in context. Any you have chosen to ignore those letters.

Q. Doctor, isn’t that the full statement of the board of directors of the American Thoracic Society, yes or no?

A. This is a statement which has been disputed with subsequent letters…that this journal published disputing this statement in regards to the item that you just mentioned.

Q. Right. Doctor, I want to be clear. I want the jury to understand. This article is the full article that was published by the board of directors of the American Thoracic Society, correct?

Summary• Methodology in the plaintiff-attorney-generated asbestos screenings

is a medical scam. It violates standard diagnostic principles, and would be condemned in actual clinical practice (caring for real patients).

• It has flourished for several reasons:– It generates a lot of money for plaintiff attorneys and their hired

physicians. – Courts have routinely accepted screening diagnoses as valid. – Defendant companies have traditionally opted not to challenge the

methodology, and instead just pay for phony claims.– Major lung disease organizations have been silent or, in some

instances, accepted and condoned this diagnostic scam.

The Future• Same pattern, same methodology is being repeated with

mass silicosis claims. In many cases previous asbestosis claims are being re-packaged as silicosis claims.

• Defending companies -- and the courts -- are learning from experience: “These [silicosis] diagnoses were manufactured for money” -- Texas federal judge Janis Jack.

• (Hopefully), change in leadership at ACCP and ATS may presage a move away from harboring biased authors and their junk science.