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Silicosis screening process irks judge
Court's challenge to system could affect 17,000 cases across U.S.
By Jerry Mitchell
jmitchell@clarionledger.com
Silicosis is a rare respiratory disease caused by the inhalation of fine silica dust through occupations such as sandblasting.
March 6, 2005 - To determine if patients had silicosis, Dr. Todd Coulter of Ocean Springs examined X-rays and work histories in a trailer in the parking lot of a Western Sizzlin' in Philadelphia.
A Century 21 real estate agent organized these screenings for silicosis, a respiratory disease that Coulter had little experience diagnosing as a family physician.
In a Feb. 17 hearing in U.S. District Court in Texas, Coulter confessed he never knew 150 of the 237 patients he diagnosed with silicosis had been diagnosed previously with asbestosis, a lung disease caused by exposure to asbestos.
It's one of a number of revelations that has rankled U.S. District Judge Janis Graham Jack of Corpus Christi, Texas. She has used the word "fraudulent" to describe the process that's led to the diagnoses of many of those 10,000 patients from eight states (including 3,500 from Mississippi) in the multidistrict litigation. Her challenges to that process possibly could affect another 17,000 silicosis cases nationally, nearly half of those in Mississippi.
The judge has said four of the 10 major physicians in cases before her testified under oath they never diagnosed silicosis, despite those diagnoses showing up in sworn statements by plaintiffs.
One of those, Dr. George Martindale of Mobile, a radiologist who examined X-rays for the Mississippi screening company N&M Inc., testified he didn't mean to sign his name to thousands of diagnoses, saying, "I can't diagnoses silicosis on the basis of that chest X-ray and didn't intend to."
Another, Dr. Ray Herron, a radiologist from West Virginia, admitted he had his employees produce form letters of diagnoses and stamped his name on them. He admitted he never looked at the letters.
As a result of such testimony, defense lawyers are seeking more than $1 million in sanctions against plaintiffs' lawyers, including the Campbell, Cherry, Harrison, Davis and Dove law firm from Waco, Texas. Jack will hear that request March 14.
The state Department of Health reports that as many Mississippians die from insect stings as those who die from silicosis — an average of one death per year in each case.
There is the question of how many cases of silicosis go unreported, since many of those affected are poor. Former Labor Secretary Robert Reich called silicosis one of the most underdiagnosed, underreported industrial diseases.
The sheer number of silicosis cases, however, has prompted some to question just how many are sick.
Defense witness Dr. Gary Friedman, a Houston physician who has testified on behalf of silicosis patients in other lawsuits, testified the diagnosis of 10,000 people with the rare disease would constitute an epidemic never seen before. The closest comparison, he said, would be in the 1930s when the construction of a tunnel in West Virginia led to the deaths of more than a fifth of the 2,000 workers. Nearly all survivors came down with the disease.
In addition, testimony in Jack's hearings showed 5,174 of the 10,000 people diagnosed with silicosis previously had been diagnosed with asbestosis — an extremely rare combination, according to defense experts.
"There is indeed an epidemic, but it is not of silicosis but rank fraud," said Lester Brickman, a professor at Cardoza Law School, who recently testified before the Senate Judiciary Committee on the matter.
N&M is one of those who has come under fire since it has done the majority of silicosis and asbestosis screenings across the nation.
Heath Mason of Grand Bay, Ala., who co-owns N&M, said his company was hired strictly to take X-rays and had nothing to do with diagnosing patients. His lawyer, Luke Dove, had no comment on the matter.
Plaintiffs' lawyers have denied fraud and said their clients have been victimized by what's happened.
Ocean Springs lawyer Alwyn Luckey — who represents 1,500 Mississippians in the multidistrict litigation — said he didn't use N&M and that all his clients have been proven sick.
"We've done our medical right, and we've got Mississippi plaintiffs and Mississippi doctors," he said. "What good does it do me to have a medical report that won't stand up in court?"
Asked about the finding that more than half of the 10,000 patients diagnosed with silicosis had been previously diagnosed with asbestosis, he replied, "I guess that's possible. There are some of us who are real Mississippians, and we've tried to do this thing right."
While the combination of silicosis and asbestos is very rare among most Americans, "you're not looking at the general population," he said. "You're looking at a narrow population that's been exposed to both."
For instance, those who work in shipyards, paper mills, foundries and refineries can develop both diseases, he said.
Jack is expected to return Mississippi's cases back to Mississippi, and Luckey said he expects those cases to wind up back in state court, where they started.
He said the multi-district litigation has worked well, providing discovery for both sides.
Defense lawyers in the case believe their success so far in discrediting diagnoses in silicosis cases could lead to undoing many of the nation's more than 600,000 pending asbestos claims.
Daniel J. Mulholland of the Jackson law firm, Forman, Perry Watkins Krutz & Tardy said the recent hearings "blew the lid off of the scheme by which lawyers hired screeners and litigation doctors to mass produce 'diagnoses' for silicosis lawsuits. These same lawyers, screeners and doctors have used this same scheme to manufacture asbestos claims for years."
Fred Krutz, who is with the same firm, said he believes these revelations "should bring the two-decade-old practice of mass screenings for litigation purposes to an end" in both silicosis and asbestosis cases.
In U.S. District Court, the judge — a former registered nurse married to a cardiologist — has turned investigator, demanding documents and interrogating doctors.
She was incredulous upon learning a man whom the records described as "working near sandblasting" his entire career turned out to be a schoolteacher. "They were sandblasting for 27 years in this elementary school classroom?" she asked, according to a transcript of the hearing.
When Dr. Coulter appeared before her on Feb. 17, he testified the screenings had been organized by someone else, who utilized X-ray technicians from a hospital. He said he imagined "anyone can take an X-ray any time they want to."
"You don't think that's illegal?" the judge asked, according to the transcript. "I mean, I could go to Oceans Springs, Mississippi, and buy an X-ray machine and put it up in Wal-Mart and start taking chest X-rays?"
Coulter explained no independent license is necessary to take X-rays in Mississippi.
"I was just thinking about the patients who are getting exposed to radiation without any medical supervision of any kind," the judge said. "I guess with my semimedical background I find that absolutely stunning."
The truth is the state Health Department does require registration and licensing of those who take X-rays and also requires a licensed practitioner to order the X-rays. The lone exception is for a "healing arts screening" that must be approved by the department.
The fact screening companies find these diseases rather than hospitals makes sense, Luckey said. "Where do poor people get to have their health care? They don't get to go to Baylor University Medical Center."
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