Tuesday, January 01, 2008

Doctor's who are part of the tort problem

Many of the major product liability cases of the last 30 years involving occupational exposure and medical devices have served as the poster-children for what's wrong about the way the United States legal system sorts these issues out. Class-action plaintiff's attorneys have repeatedly exhibited some of the most jaw-dropping acts of dishonorable behavior in the pursuit of settlements that pay themselves ten's or even hundreds of millions of dollars in legal fees and compensation.

Law professor, Lester Brickman recently estimated in the New York Times that “mass tort fraud” has cost at least $30 billion just in the last 15 years and cited "compelling evidence” that "many if not most of the medical reports supporting more than 700,000 damage claims filed in asbestos, silica, diet drug and silicone breast implant litigation are frauds

Many of these cases would have gone nowhere without the complicity of physicians from a number of disciplines who have either inaccurately or fraudulently testified in court, or those that have set up lucrative "diagnosis mills" based on referrals from trial lawyers to establish their claim.

From the Wall Street Journal:

Over one million potential litigants have been screened by agents for tort lawyers in asbestos, silica, silicone breast implant and diet drug (fen-phen) litigation. The lawyers sponsoring these screenings have paid over $100 million for medical reports to support the 700,000 or more claims generated by these screenings. There is compelling evidence, much of it reviewed in my published writings, that the vast majority of these medical reports, including chest X-ray readings, echocardiograms, pulmonary function tests and diagnoses are bogus.

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."

There's been a long overdue movement in medicine about better regulating the way Doctor's serve as expert witnesses. A number of specialty societies' have started to put forth registries for their members to enlist in for tracking and also allow peer review of expert testimony. Along with this are calls to put reasonable caps on how much a doctor should charge for their case review and testimony fees so as to remove the financial incentive to become a "professional expert witness". Predictably, the trial bar gets incendiary over this claiming doctor's want to intimidate their peers into not ever cooperating with tort or med-mal cases (a la the "blue line" about cops testifying on other cops).

Missiouri doctor, John Hagan M.D., wrote a blurb about the serial expert witness industry "testimony tart" in his blog saying:

For the right price these mendacious individuals will find malpractice in almost all of the cases they are asked to review. They serve exclusively the plaintiff’s bar. Known variously as “hired guns” or (my favorite) “testimony tarts”, they not infrequently earn millions of dollars per year.
Most are driven by base greed and avarice; a few are motivated by delusional standards of excellence and perfection that they think they alone practice and can determine. Their names and credentials are shilled in legal publications, over the web or through procuring agencies. Hometown physician colleagues are frequently unaware of the hired gun’s sordid and sub rosa activities.
What’s the going rate for a top testimony tart? Try $1000-1500/hour to review records, for trials or depositions $10,000-15,000/day, first class airline or private jet travel, limousine service, suite of rooms at the best hotel, expensive gifts at Christmas and, for the most egregiously corrupt, a contingency fee based on a favorable verdict and large judgment. Some allegedly guarantee their testimony will result in a big settlement or guilty verdict.

In doing some research on this, I found reference to this going back to a New York Times article in 1897 (!), which reported that The Committee for Remedial Legislation in Regard to Expert Testimony called for all physician witnesses to be paid by the county rather then lawyers or prosecutors so as to remove potential bias. It seems we're still trying to get our hands around this issue 110 years later.


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