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THE UNITED STATES ASBESTOS SCREENING SCAM – ANALYSIS OF BOGUS MEDICAL REPORTS

Lawrence Martin, M.D.
Clinical Professor of Medicine
Case Western Reserve University School of Medicine
Cleveland, Ohio

This analysis of bogus medical reports complements the web site The United States Asbestos Screening Scam - References and Internet Sources. It details just how unscrupulous physicians 'game the system' to write their bogus medical reports. This is the 3rd step in the "Assembly Line" Claims Process shown below: "Doctors rubber-stamp standard diagnoses." (Graphic is from Trial Lawyers Inc.: Asbestos. A Report on the Asbestos Litigation Industry.)

It's actually a bit more sophisticated. What happens is the following:

• A plaintiff-attorney-hired physician (PAHP) interprets hundreds or thousands of chest x-rays of factory workers (active or retired) in such a way as to be consistent with the diagnosis of asbestosis: scarring of the lungs from inhaled asbestos dust. This would be analagous to diagnosing "tapeworm" in every underweight person you see on the street, or diagnosing "thyroid disease" in every obese person you see at the mall. You might be right a few times, but common sense tells you a single medical diagnosis is highly unlikely for most underweight or obese people. Yet the PAHPs diagnose asbestos disease on just about every x-ray sent to them.
  
  
• The x-ray reports "consistent with asbestosis" are then sent to another physician who interviews and examines the workers and performs a physical exam. For each of these claimants, he then incorporates an assumed asbestos exposure history ("significant exposure to asbestos dust") with the above chest x-ray report, to opine:

“On the basis of the medical history review, which is inclusive of a significant exposure to asbestos dust, the physical examination and the chest radiograph, the diagnosis of bilateral asbestosis is established within a reasonable degree of medical certainty. This diagnosis is causally related to his workplace exposure to asbestos at the XYZ Company.”

There are several variations of this technique, all with the same result. Sometimes the physician who interprets the chest x-ray ALSO interviews and examines the factory worker. And sometimes the 2nd physician does not actually see the claimant, but still writes a report with the same language (minus the "the physical examination"). But the basic route to boilerplate diagnosis is the same: a chest x-ray obtained at plaintiff's lawyer's expense, read by a plaintiff-attorney-hired physician as consistent with asbestos disease, and then a final report by the same or another plaintiff-attorney-hired-physician stating the diagnosis is "asbestosis...within a reasonable degree of medical certainty." Each individual report sounds so authentic, so medically correct. But in the vast majority of cases -- well over 90% -- each individual report is made up, bogus, a dishonest medical diagnosis. How so?

• By fabricating an occupational exposure history;
• By purposely mis-interpreting the chest x-ray so that it is always consistent with asbestos disease;
• By submitting a report not written in good faith: one that ignores relevant medical information and omits the possibility of other diagnoses.

THE OCCUPATIONAL EXPOSURE HISTORY IS ASSUMED, NOT DOCUMENTED. History of "significant exposure to asbestos dust" is almost never documented. Instead, it is simply made up. The claimants worked in a factory where asbestos was present in some fashion, e.g., in pipe coverings or furnace walls. However, the vast majority did not work directly with the material, and for them there is no documentation of "significant exposure." So while it's true that a small percentage of workers did have significant asbestos exposure, they are a minuscule percentage of the hundreds of thousands of bogus claims. In essence, the PAHP reports assume that every worker filtered through the screening process had "significant exposure to asbestos dust," which is patently untrue.

Below is a typical occupational history (quoted verbatim) from a bogus medical report:

"Occupational History: 1962 to 1980 XYZ Corporation. Exposures to asbestos at the above job site included but were not limited to pipe covering, boiler insulation, raw fiber, plastic cement, cloth, tile, paper, block, grinding wheels, packing, gaskets, welding rods, insulated wire, furnace insulation, joint compound."

That's it: an occupational exposure history that is all inclusive and completely undocumented. It's simply made up to fit the diagnosis of asbestos disease.

THE CHEST X-RAY INTERPRETATION IS SUBJECTIVE, MAKING IT EASY TO FUDGE A FAVORABLE INTERPRETATION. Decades ago the National Institute of Occupational Safety and Health (NIOSH) began a program to certify "B-Readers." B-readers are physicians who pass a NIOSH-sponsored 1/2 day exam on interpreting x-rays of workers exposed to dust, such as coal dust, silica and asbestos. The purpose of the B-Reader program is to standardize the x-ray interpretations, to make them as objective as possible. It supposedly does this by instituting a scale of "impressions" for the x-ray showing effects of inhaled dust. The basic interpretation uses a number ranging from 0 to 3, with zero being completely normal and 1 to 3 indicating progressive density of "opacities" that might indicate dust disease. An "opacity" on a chest x-ray can occur when inhaled dust generates a tissue reaction in the lungs that surrounds the dust particles; this accumulation of tissue is larger than the actual dust particles, and shows up white against the black background of normal lungs on the chest x-ray.

As an x-ray finding, "opacities" are totally non-specific; they could be due to many other things besides inhaled dust, such as fluid (from heart failure), cancer, or even scarring in smokers and people never exposed to occupational dusts. Finding opacities on chest x-ray does not by itself indicate any specific disease, including dust disease. Even with that caveat, it is subjective whether or not a worker has the first stage of opacities; and even when they are definitely present, it remains subjective as to degree of density. Thus, the B-reader scale for reading opacities allows for an interpretation to be 'first impression/second impression', as shown below in the list of possible interpretations.

0/0 -- normal
0/1 -- likely normal x-ray but it may show 1st (lowest) level of opacities
1/0 -- likely 1st level of opacities but x-ray may be normal
1/1 -- first 1st level of opacities, definite
1/2 -- likely 1st level of opacities, but may be 2nd level
2/1 -- likely 2nd level of opacities, but may be 1st level
2/2 -- 2nd level of opacities, definite
2/3 -- likely 2nd level of opacities, but may be 3rd level
3/2 -- likely 3rd level of opacities, but may be 2nd level
3/3 -- 3rd level of opacities, definite

For example a reading of "0/1" means the first impression is that the x-ray is normal, but on reflection there may be level 1 small opacity profusion or density. "1/0" means that the x-ray looks like it shows the first stage of dust disease -- the smallest visible opacities -- but on reflection the x-ray may also be normal. A reading of "1/1" means there is the first level of opacities, both on first and second impressions.

The figure below shows a chest x-ray with asbestosis at level "1/1" profusion (or density) and "shape and size" of the tiny nodules is "p/p". (In addition to using numbers to indicate density of the nodules, the B-reader interpretation also uses letters p,q,r,s,t and u to indicate shape and size of the nodules. Unlike the numbers, the letter classification is not relevant to actual diagnosis of asbestos disease.)

The nodules are better vizualized in magnification, as shown below. They show up as tiny white spots against a black background. (Figures are from ILO Classification of the Pneumoconioses, which shows x-ray images of the scale from 1/1 to 3/3. A general overview of the B-reader program is at Wikipedia: "B" Reader. More detail about the B-reader interpretation of chest x-rays can be found at Guidelines for the Use of the ILO International Classification of Radiographs of Pneumoconioses.)

The problem is that most of the x-rays in the U.S. Asbestos Screening Scam are read as "1/0," and this SUBJECTIVE READING is then used to file bogus reports. A reading of "1/0" is not only equivocal for presence of any nodules, it is also competely non-specific and non-diagnostic. But for the screening scam, it is also sufficient to initiate a claim. And a claim filed has all too often meant a claim awarded and money paid out, notwithstanding that the diagnosis (including the x-ray reading itself) is completely bogus. Here is an actual report of a chest x-ray as interpreted by a plaintiff-attorney-hired B-reader:

"The film dated 8-29-00 is of good quality. Irregular opacities are present in the lower and middle lung zones of 1/0 profusion bilaterally. There are no pleural abnormalities present. In the presence of a significant occupational exposure history to asbestos dust, these findings are consistent with the diagnosis of bilateral interstitial fibrosis due to asbestosis."

Of course the occupational exposure history is always "significant," so the diagnosis is always asbestos disease. For a single chest x-ray, it is not easy to prove the B-Reader "wrong" in his subjective interpretation; when read as an isolated report about a single claimant it sounds medically correct. An analogy would be a single sheet of blank paper that to some eyes is "off-white" and to others is "light grey." Calling it "off white" would mean no asbestos disease and nothing would be paid for the claim. Calling it "light grey" would mean asbestos disease and multiple payments on behalf of the "injured" worker.

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.

• One way is to analyze each case against all other similar claims, as did Judge Janis Jack in her landmark 2005 silica MDL opinion (see Asbestos Screening Scam, 2005). She showed that it was medically impossible for every claimant to have silicosis and asbestosis. Likewise, if ALL the reports of a plaintiff-attorney-hired physician were allowed into a court proceeding, it would become quickly apparent that his diagnoses were mere boilerplate, rendered solely for purposes of making claims. This is even more so if objective experts were allowed to show the tremendous disparity between the number of PAHP cases and the true prevalence of documented asbestos disease in the United States. Unfortunately, such common sense approaches have rarely been used in actual trials, partly because the cost of defending tens of thousands of bogus claims makes a unique defense for each one prohibitively expensive. Plaintiff lawyers use this fact to bundle thousands of bogus claims together, to extort a large settlement for the group.
  
  
• Another method is when the individual worker's extant medical history, which may include numerous other chest x-rays and chest CT scans, disproves the presence of any asbestos disease. If the ONLY mention of asbestos disease is by the plaintiff-attorney-hired physician who is paid to make the diagnosis, and not by numerous other physicians who also interpreted chest x-rays and examined the patient, it's a pretty safe bet the claimant does not have asbestos diseease. An example of detailed medical history disproving a bogus medical report is provided in Case Synopses of Actual Asbestos Claims, Bogus Diagnosis of Asbestosis #2. Again, this is relatively expensive to do on an individual basis, when faced with tens of thousands of bogus claims.
  
  
• A third method is when a group of x-rays read by plaintiff-attorney-hired physicians is re-read by objective radiologists (not paid for a specific diagnosis). This method is unfortunately used very little or not at all in the real world, for the same reason stated above. However, it was used in a study from Johns Hopkins (Acad Radiol. 2004 Aug;11(8):843-56. Gitlin, et al. Comparison of "B" readers' interpretations of chest radiographs for asbestos related changes). In this study plaintiff-attorney-hired B-readers found evidence for asbestos disease in 95.9% of several hundred films. Objective radiologists from Johns Hopkins found only 4.5% were abnormal. (Graphic below is from Trial Lawyers Inc.: Asbestos. A Report on the Asbestos Litigation Industry.)
  
  

  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