Three physicians who looked at thousands of X-rays and saw an epidemic of silicosis that no one else noticed took the protections of the Fifth Amendment rather than tell Congress about their work or the money they made doing it.
Last Wednesday the House Energy and Commerce Subcommittee on Oversight and Investigations examined the circumstances behind nearly 10,000 silicosis diagnoses that a federal judge labeled “manufactured for money” before remanding the claims to state courts, where they were later dismissed for lack of evidence.
After receiving subpoenas, Drs. James Ballard of Birmingham, Ala.; Andrew Harron of Kenosha, Wisc.; and Ray Harron of Bridgeport, W.V., appeared with their lawyers in the Capitol Hill hearing room, but said little. Respectively, they were allegedly responsible for the diagnoses of approximately 120, 505 and 1,200 silicosis claimants, according to plaintiffs’ lawyers. In addition, they supplied X-ray reports used to support many other diagnoses.
“Will you certify that each of these diagnoses and all others that you made in this litigation are accurate and made pursuant to all medical practices, standards and ethics?” asked U.S. Rep. Ed Whitfield, R-Ky., chairman of the subcommittee.
One by one, Drs. Harron and Ballard refused to answer, invoking their Fifth Amendment constitutional right against self-incrimination.
The subcommitte called its hearing to follow up on a silica liability decision rendered on June 30, 2005 by U.S. Dist. Judge Janis Graham Jack. In that opinion, Judge Jack, a former nurse appointed to the bench by President Clinton, detailed how diagnoses of silicosis, a largely incurable and often fatal pulmonary disease, were produced for approximately 10,000 plaintiffs largely by the same 12 physicians for use in subsequent lawsuits.
Jack concluded that “these diagnoses were about litigation rather than health care” and “were driven by neither health nor justice [but] were manufactured for money.”
According to the National Institute for Occupational Safety and Health, there has been a steady decline of deaths related to silicosis – an often fatal lung disease developed from repeated exposure to silica particles often encountered through certain types of mining and sand-blasting – from 1,157 in 1968 to 187 in 1999. Yet new silicosis lawsuits in Mississippi courts skyrocketed from 76 in 2001 to 10,642 in 2002.
The witnesses that did testify painted a picture of a system engineered and managed by trial lawyers that was more about producing enormous cash settlements and legal fees than helping legitimate claimants obtain maximum compensation.
Heath Mason, co-owner and operator of N&M, Inc., a Moss Point, Miss., company that generated approximately 6,700 disputed silicosis diagnoses, appeared at the hearing after receiving a subpoena. Mason testified that he has no medical training and that his medical screening company had no licensed physician on staff.
Mason added that virtually all of N&M’s revenues came from law firms, which also played an extraordinarily hands-on role in the company’s operations. Lawyers approved the doctors involved in the screenings and wrote the actual language asserting the diagnoses. And Mason added that, in the case of the Campbell Cherry law firm of Houston, his company was only paid for positive diagnoses.
“What we would do is we would accept the calls from people who thought that they were exposed to silica. We would screen those people over the telephone. We would see if they met the criteria that Campbell Cherry had passed down to us,” Mason said. “If they did, especially in silica, we had to forward that information to Campbell Cherry. They had to approve the list of people that we thought were exposed. And then we set those screens up for them by contacting the client and telling them this is where the screening is going to be, this is when you need to be there. And it was our responsibility to make sure the person was there and that we had took the best work history that we could get from the client.”
Asked which firms hired N&M, Mason could only say, “There’s a lot.”
Mason also testified that for screenings administered by his for-profit company, it was not unusual for 90% of individuals screened to be diagnosed with silicosis, regardless of their work history.
“It’s a screening process,” observed Dr. Laura Welch, Medical Director of the non-profit Center to Protect Workers Rights. “But I wouldn’t put the word medical in there.”
Dr. George Martindale of Mobile, Alabama, testified that he did sign some 3,736 forms saying that “the diagnosis of silicosis is established within a reasonable degree of medical certainty,” but that he didn’t think he was diagnosing the disease, just affirming a prior diagnosis. He conceded that in retrospect he would have changed that language authored by the Campbell Cherry law firm.
Lawmakers condemned the abuses outlined in the Jack opinion.
“This is particularly troubling because it undermines our judicial system,” Whitfield said. “But it also clearly shows the lack of attention or concern about the actual health or treatment of patients. Dollars were the priority. Patients’ health and wellbeing were afterthoughts.”
“That’s not medicine, that’s greed,” said U.S. Rep. Charlie Bass, R-N.H.
“This might be a story of medical heroes who identify and then treat and care for people with a deadly disease,” said U.S. Rep. Joe Barton, R-Texas, chairman of the full Energy and Commerce Committee. “More likely, this is a story of medical mercenaries who allege cases of disease for the purpose of legal action and great financial gain. Particularly troubling is the prospect that thousands of people were handed bogus diagnoses of this horrible disease and, in many instances, by medically unqualified lawyers, paralegals or screening company employees.”
“The system has taken on a life of its own,” observed Tulane University Law Professor Edward Sherman. He suggested that, without stronger standards, similar shaky claims could plague other industries.
The National Legal and Policy Center applauded the House investigations into the mass tort screening process for silicosis cases and the resulting illustration of widespread fraudulence within tort law.
“This hearing once again illustrated the shamelessness of trial lawyers in manufacturing lawsuits with no basis in fact that are designed solely to line their pockets,” said Ken Boehm, chairman of the NLPC. “There were no new revelations from the witnesses; the fact that trial lawyers would file thousands of unsupportable lawsuits in order to extort money from businesses should not be a surprise to anyone.”
NLPC used the eharings to restate its support for the U.S. Senate’s Fairness in Asbestos Injury Resolution (FAIR) Act, which the group says will stop the fraudulent asbestos lawsuits.
“Enacting the FAIR Act would be a step in the right direction. These lawyers need to realize that in their quest for huge legal fees they are harming businesses, victims, and the entire legal system. It doesn’t seem they will get this message without a little help from the U.S. Congress and good judges like Judge Jack,” Boehm concluded.
The National Legal and Policy Center promotes ethics in public life through research, education and legal action.
Source: House Energy and Commerce Subcommittee on Oversight and Investigations; National Legal and Policy Center
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