Saturday, December 29, 2007
Professor Lester Brickman (of Cardozo) commented recently in the Wall Street Journal that the Department of Justice has given doctors and lawyers a "free pass" "to commit massive tort fraud, exceeding $30 billion in the past 15 years." Here's an excerpt:
But it now appears as if neither this U.S. Attorney's Office nor the parent Department of Justice is going to prosecute mass tort fraud. Six months ago there were signs that Justice was moving forward on some key cases involving one or more of the litigation doctors. Now, unfortunately, that activity appears to have all but ceased.
The dimensions of this fraud are stunning. An asbestos screening of 1,000 potential litigants generates about 500-600 diagnoses of asbestosis. If these same occupationally exposed workers were examined in clinical settings, approximately 30-50 would be diagnosed with asbestosis. The total take for "excess" asbestos diagnoses is more than $25 billion, of which $10 billion has gone to the lawyers. More billions for bogus claims in the diet drug (fen-phen) and silicone breast implant litigations can be added to this bill.
A comparative handful of doctors and technicians are responsible for the vast majority of bogus medical tests and diagnoses. To indict and prosecute those responsible would require testimony from other doctors that the mass-produced diagnoses cannot have been rendered in good faith.
To be sure, doctors can differ in reading X-rays or making a diagnosis. But when a doctor has been paid millions of dollars to produce 5,000 or even 50,000 diagnoses in the course of mass-tort screenings -- and when panels of experts have found the vast majority of these to be in error -- the most compelling conclusion is that the diagnoses were "manufactured for money."
Prosecutors on the federal and state level are nonetheless concerned that such a "battle of the experts" will raise reasonable doubt in the minds of juries, and so they decline to prosecute these doctors, let alone the lawyers who hired them. This decision, however, gives the doctors a special dispensation to commit fraud.
Peter Lattman responded on the Wall Street Journal's Law Blog.