Derailing the gravy train: a three-pronged approach to end fraud in mass tort medical diagnosing.

• Author: Mall, Matthew

INTRODUCTION

Mass medical screening, or "diagnosing for dollars," (1) currently fuels mass tort litigation. Functionally, these screenings range from the processing of hundreds to thousands of plaintiffs through hotel conference rooms acting as quasi-medical offices (2) to unlicensed technicians operating X-ray machines in the back of a van. (3) Although this phenomenon has existed since the early days of asbestos litigation, (4) some mass tort plaintiffs' attorneys appear to be employing increasingly brazen and dubious methods to enlist plaintiffs via these medical screenings. (5)

The extent of this problem was vehemently emphasized by Judge Jack in her recent opinion in Silica Products. (6) In a lengthy and well-researched opinion, Judge Jack implied that the plaintiffs' attorneys and the diagnosing doctors engaged in rampant fraud, and she openly questioned the validity of virtually all silica-based personal injury claims. (7) Excoriating the attorneys and doctors involved, Judge Jack imposed sanctions (8) and declared that "these diagnoses were driven by neither health nor justice: they were manufactured for money." (9)

Though her opinion did not definitively establish the amount of the sanctions to be levied against the plaintiffs' attorneys, Judge Jack left no doubt that whatever sanction that would ultimately be levied would be insufficient. (10) The defendants' estimated costs of preparing for the Daubert hearing (11) were $825,000, (12) but after finding that her court had subject-matter jurisdiction over only one percent of the cases, Judge Jack tentatively set the sanctions at a proportional amount: $8250. (13) Even had the sanctions not been reduced, however, it is not clear that sanctions, alone, could sufficiently redress the harm the attorneys caused or deter similar screenings. The problem--that sanctions alone are insufficient to redress the harms caused by fraudulent medical screening and the mass tort litigations they drive is the one this Note aims to solve.

The consequences of these unregulated mass screenings extend well beyond the obvious drain on corporate pocket books and clogging of the courts with potentially meritless claims. (14) As at least one commentator has previously observed, however, "[i]dentifying the problem does not ... prescribe a solution." (16) This Note proposes a three-pronged approach to eliminate potential fraud in mass tort medical screenings.

The first prong is legislative: though several states have passed commendable tort-reform laws to deal specifically with the asbestos and silica screening crises, (16) these efforts do not go far enough. Rather than litigation-specific, backward-looking legislation, states should enact broader laws aimed at eliminating the possibility of future problematic mass screening.

The second prong involves the use of neutral, court-appointed experts. These experts could fill roles ranging from testifying as neutral trial experts to devising litigation-specific criteria for the screening of potential claimants. Though legislation of the type described above has the advantage of applying to a wide variety of potential mass torts, its resulting lack of specificity may leave too much room for interpretation. To close this gap, courts should use their power under Federal Rule of Evidence 706 (17) to appoint independent medical experts. (18)

The final prong is the catch-all: the availability of serious sanctions against both plaintiffs' attorneys responsible for fraudulent mass screening and also the screening companies themselves. Although Judge Jack levied fines against the offending attorneys in Silica Products, (19) the amount of the fines was paltry in relation to the ultimate cost of the meritless claims resulting from the screening. Courts must be encouraged to levy fines with real deterrent power to discourage abuses in the screening process.

Part I of this Note will attempt to define the problem of fraudulent mass-medical screening by describing use of such screening in several types of mass tort litigations. Part II will examine the consequences of mass-medical screening. Part III will examine the need for a novel solution and argue that existing methods have not been successful. Finally, Part IV will argue for a three-pronged approach to eliminating fraudulent medical screening.

1. THE PROBLEM OF SCREENING IN MASS TORT

   1. Origins in Asbestos

      To appreciate the scope and magnitude of the problem posed by mass tort medical screenings, it is helpful to examine the beginnings of the phenomenon. The paradigm example is, of course, asbestos litigation, which has resulted in hundreds of thousands of cases filed in the last three decades. (20) Although tales of asbestos screening abuses abound, (21) one particular example is illustrative of the extent of the problem. That instance involved an asbestos defendant, Raymark Industries, bringing fraud and RICO (22) charges against a group of asbestos plaintiffs' lawyers, alleging that the lawyers "devised and controlled a nationwide asbestos claim-generating scheme which involved the unethical solicitation" of potential claimants. (23) In plain terms, the plaintiffs' lawyers were accused of fraudulently creating claims.

      Specifically, Raymark alleged that the plaintiffs' attorneys arranged to have vans equipped with X-ray equipment visit tire manufacturing plants around the country. (24) These "examobiles," as they were called, were operated by medical personnel with dubious credentials, such as lacking qualifications to diagnose asbestos disease, having been sued for misrepresenting qualifications, and being unlicensed to practice medicine in the United States. (25) Furthermore, the asbestos disease "diagnoses" were based entirely on the X-ray results, (26) a practice in direct conflict with the accepted medical standard of diagnosis, which considers any history of exposure, an appropriate latency time, chest X-ray evidence, and several other factors. (27) Further reason to doubt the adequacy of the asbestos litigants' screening protocol is the fact that it resulted in a diagnosis rate "3 to 4 1/2 times greater than among shipyard workers[,] who are known to have the greatest risk." (28)

      In denying the plaintiffs' attorneys' motion for summary judgment, the court in Raymark vehemently summarized its view of the mass-screening and claim-generation process: "this claim process appears to be a 'professional farce!' The process makes a mockery of the practices of law and medicine! Indeed, if this court were now to acquiesce in any of them it would make a 'laughingstock' of the court!" (29) The court's conclusions about the screenings' accuracy were ultimately confirmed by science: A 1990 study of tire workers from one of the sites involved in the Raymark case, which was "prompted by the reporting of exceedingly high rates of alleged asbestos-related disease among rubber workers," found rates of disease much lower than the nearly sixty percent of workers who had filed legal claims. (30) "[P]ossibly 16 [3.6%], but more realistically 11 [2.5%], of the 439 cases evaluated may have a condition consistent with exposure to an asbestiform mineral." (31) The pronounced disparity between the results of the follow-up study and the diagnoses made in a mass screening of the same people underscores the gross unreliability of such screenings.

   2. Fen-phen (32)

      It would be a mistake, however, to conclude that mass tort screening is just a part of the asbestos mess. The fen-phen litigation also exploded to unexpected, unmanageable numbers largely due to the same kind of unethical and possibly fraudulent screening procedures. (33) This time, the product manufacturer decided early in the litigation to limit claims by arranging a global settlement. (34) Rather than eliminating the need for mass screening, however, this strategy created a "feeding frenzy" which resulted in claims far out of proportion to expectations. (35)

      Understandably alarmed by the huge number of claims, lawyers for the settlement trust began auditing individual claims. (36) This process produced results nothing short of stunning. By 2004, the trust had audited 4600 claims and found nearly two-thirds of them deficient. (37) The high rate of deficiency, of course, was explained by the screening process: entire industries had been spawned to screen potential fen-phen claimants; screening sessions were being held in law firms and hotel rooms; diagnosing physicians were working on contingency fees with escalating rewards for more serious diagnoses; (38) and some diagnosing physicians were finding injuries at twelve times the rate predicted by their own research studies. (39)

      Perhaps worst of all, a 2004 audit of claims paid by the settlement trust found evidence of "rogue frames inserted into the [echocardiograms] of 84 patients." (40) This practice extends well beyond the realm of exaggerated diagnoses and into that of completely fabricated ones.

   3. Silica

      The mass-screening fiasco given the most press recently is the silica litigation. Judge Jack's blistering opinion reached a conclusion about silica mass tort screening that might be equally applicable to all mass tort screenings:

      [T]he clear motivation [for the heavy involvement of the plaintiffs' law firm in the screening process] was to inflate the number of Plaintiffs and claims in order to overwhelm the Defendants and the judicial system. This is apparently done in hopes of extracting mass nuisance-value settlements because the Defendants and the judicial system are financially incapable of examining the merits of each individual claim in the usual manner. (41) In support of this conclusion, Judge Jack relied on several sources of information. First she detailed the screening process itself. (42) Reminiscent of the screenings in Raymark, the silica screening involved X-ray machines in vans, unqualified technicians, incomplete diagnostic protocols, and a small number of doctors...