Prof. Lester Brickman on Asbestosis Screenings

Professor Lester Brickman of Cardozo School of Law, Yeshiva University, has posted his article, Disparities Between Asbestosis and Silicosis Claims Generated by Litigation Screenings and Clinical Studies, on SSRN.  Here's the abstract:

In 2005, U.S. District Court Judge Janis Jack, presiding over an MDL proceeding involving 10,000 claims of silicosis emanating from litigation screenings, issued a 264 page opinion rejecting the reliability of thousands of medical reports generated by those screenings. Before issuing her opinion, she ordered a Daubert hearing to assess the reliability of these medical reports which had been issued by a handful of doctors. In furtherance of this unprecedented use of a Daubert hearing in a mass tort proceeding, she compelled the production of a large volume of evidence, under threat of contempt, that the screening companies and doctors would not have otherwise produced. She went on to document in great detail the existence of a fraudulent scheme to create bogus medical evidence that lead her to conclude that it is apparent that truth and justice had very little to do with these diagnoses. . . . [Indeed] it is clear that lawyers, doctors and screening companies were all willing participants in a scheme to manufacture. . . [diagnoses] for money.

Judge Jack's findings largely corroborated my own conclusions with regard to the validity of X-rays readings and diagnoses of asbestosis which I had published a year earlier. In that article, I described how an illegitimate entrepreneurial model had been devised by lawyers, doctors and screening companies to screen hundreds of thousands of potential litigants for the sole purpose of generating claims of nonmalignant injury allegedly caused by asbestos exposure and manufacturing the requisite medical reports to sustain the claims.

Judge Jack's opinion has been widely covered in the news media and is still reverberating around the mass tort world. Much less heralded is the fact that Judge Jack ordered that the X-rays and medical records generated by the unprecedented discovery be placed in a repository where it could be accessed by parties. These records are now being systematically examined.

In this article, I present some of the findings of this ongoing examination as well as other data which has recently become available which addresses the issue of whether the hundreds of thousands of medical reports generated by asbestos litigation screenings have also been manufactured for money. In particular, I present data indicating that a comparative handful of doctors selected by plaintiffs' lawyers (litigation doctors) read 50%-90% of the X-rays sent to them by plaintiffs' attorneys as positive for pulmonary fibrosis and provide findings that these readings are consistent with asbestosis. In addition, I estimate that these same doctors, as well as a small number of others, diagnose at least 80% of those with positive X-ray reads as having asbestosis within a degree of medical certainty.

To properly understand the significance of this data and estimate, I present the results of a review of over 70 clinical studies of the prevalence of fibrosis among workers occupationally exposed to asbestos. Approximately 10% of the reviewed subjects' X-rays were found positive for fibrosis. The litigation doctors' 80 percent plus diagnosis rate of those found positive for fibrosis compares with a diagnosis rate of 15% to 23.2% in clinical studies. The much lower diagnosis rate of asbestosis in clinical studies is a function of the fact there are over 100 causes of pulmonary fibrosis in addition to asbestos exposure.

I also summarize the results of six clinical studies and equivalents in which X-rays generated by litigation screenings and read as positive for fibrosis were re-read by independent medical experts. This comparison indicates that the litigation doctors' error rates range from 62% to 97.5%.

Another facet of litigation screenings is the administration of pulmonary function tests to determine the degree of lung impairment and qualify the litigant for increased compensation. Here, too, I summarize the findings in medical literature and compare that to the outcomes of the pulmonary function tests administered in litigation screenings. Based upon the data presented, I conclude that the substantial majority of lung function tests performed by litigation screening companies are maladministered in order to generate false findings of lung impairment.

I also compare the pandemic of nonmalignant asbestos-related disease claims which were filed in the 1990-2004 period in the tort system and asbestos bankruptcy trusts with the number of hospitalizations primarily for asbestosis in that period. The data on hospitalizations is compelling. In the 15 year period, 1990-2004, during which about 475,000 new claimants each filed claims against 25-75 defendants and asbestos bankruptcy trusts alleging asbestosis or other nonmalignant condition caused by asbestos exposure, a study of approximately 4,500,000 randomly selected medical records of persons discharged from hospitals indicated that a total of 57 hospitalizations were primarily due to asbestosis.

Finally, I examine the possibility that the litigation doctors have predetermined signature percentages of positive X-ray readings and diagnoses. Bearing on this is the detailed evidence I present of the concerted refusal of the litigation doctors to provide records of all of their X-ray readings and diagnoses in response to subpoenas and court orders - records that would enable calculation of their percent positives that could be smoking gun evidence of fraud. This may account for the fact that four doctors and two screening company principals have invoked the Fifth Amendment and refused to testify about their diagnoses or produce their screening records.

The conclusion I draw from the data and evidence presented is that Judge Jack's findings with regard to the medical reports in the silica MDL applies with at least equal force to nonmalignant asbestos litigation: the medical reports are mostly manufactured for money.

BGS