Tale of easy money isn't just pulp fiction

February 11, 2006

It is late. Harsh shadows are cast by a bare light bulb. Jazz plays in the background, through the static of a portable radio. There is a knock at the door.

It is late. Harsh shadows are cast by a bare light bulb. Jazz plays in the background, through the static of a portable radio. There is a knock at the door.

"We're closed. Go away."

"But doctor, I need your help." A sultry voice wafted over the transom.

I turned and saw a killer silhouette on the frosted glass of my office door.

"Come in." She was dressed to the nines with a blouse so tight you could see the outline of a butterfly tattoo on her shoulder. "Have a seat." She dropped her silver fox stole and stepped on it with her black stiletto heels. It shuddered as if it were still alive. She took a drag from her cigarette and exhaled. Blue smoke enveloped her like cheap silk on a speak-easy chanteuse.

"You know those things will kill you."

"Yes," she purred, "but I've made the cigarette companies pay billions for that privilege."

Right then I knew she was an ambulance chaser, a shyster lawyer. I should have never let her in.

"I need your help, doctor."

"Sorry, doll, but I'm not interested."

She crossed her legs, flashing Betty Gable gams that wouldn't stop. I wanted to make her leave, but couldn't.

"Dr. Gittes, can I call you Jake?" She could call me anything she wanted.

"Jake, I'm not asking for anything wrong. I just need some accommodating-you know, B-readings."

I flinched as the words hit me full in the face. The memories flooded back. I hadn't done any B-reading since Chinatown.

"Sorry doll, but no deal."

Next thing I knew, she was leaning up against me.

"Jake, Jake. I'll do all the work. You won't have to do a thing. I just need your name. It'll be easy-easy money. One check for you. One check for your professional corporation."

She wasn't lying. I could feel her rubbing both of those check books right up against me.

"Just my signature? Nothing else?"

"Oh! Jake! Yes! Yes!" And with that, my fate was sealed.

In the classic film noir Chinatown, Jack Nicholson becomes the unwitting accomplice to incest, kidnapping, and murder-all for an offer of $10,000 from John Huston. He is duped by the offer of easy money and lives to regret it. In Double Indemnity, Fred MacMurray suffers a similar fate after he is seduced by the offer of easy insurance money by Barbara Stanwyck, in exchange for killing her husband. At the recent RSNA meeting, I had a similar experience, which unlike the characters above, I've lived to tell about. More on that later.

In 2001, Dr. George Martindale of Mobile, AL, saw a television ad and a chance at easy money performing B-readings. After calling the phone number advertised, Martindale soon agreed to work for N&M Inc. providing "screening" work for law firms.

What is a B-reader? The B-reader program was mandated by the Federal Mine Safety and Health Act of 1974, although it was not until 1978 that exams were given extensively. The program's intent was to ensure consistency across the board in diagnosing and characterizing pneumoconiosis, a lung condition caused by dust inhalation and characterized by formation of nodular fibrotic changes.

Originally conceived out of concerns about escalating cases of pneumoconiosis among coal workers, the B-reader program was expanded to apply to the Asbestos Medical Surveillance Program.

To qualify as a B-reader under either program, physicians must complete a certificate program through the National Institute for Occupational Safety and Health. Since inception of the B-reader program, only 1200 doctors have been certified, and, of those, 531 are still active.

The program, however, came under the hot glare of scrutiny when a group of defense attorneys decided to jointly fight silicosis claims filed by plaintiffs in courts in Mississippi, Texas, and elsewhere. The cases were consolidated and eventually reached the U.S. District Court in the Southern District of Texas. In a scathing opinion, Judge Janis Graham Jack endorsed the defense claims, blasting radiologists she said were complicit in generating awards for thousands of plaintiffs. A deposition from Martindale was central to the case.

A deposition from Martindale was central to the case.

Martindale's B-reader arrangement with N&M was a little unusual. His employers were Heath Mason, a 21-year-old junior college dropout with legal contacts, and Molly Netherland, who had access to her chiropractor husband's x-ray equipment.

N&M received $750 for every positive case of asbestosis/silicosis that it could dredge up. Martindale diagnosed more than 3600 people with silicosis, using the term "within a reasonable degree of medical certainty."

Unfortunately for Martindale, under mild cross-examination, it became clear that he didn't know much about silicosis. In his deposition, he stated that silicosis is caused by chrysotile, which is actually a form of asbestos. By the end of his deposition, he admitted that he could not diagnose silicosis and recanted his diagnosis on every patient he had ever read. It is estimated that N&M raked in more than $3 million for these cases.

Martindale probably never would have had to submit to this humiliating court-ordered deposition if not for clever data mining by defense attorneys. They found that more than 9000 diagnoses of silicosis came from just 12 physicians, among them Martindale and another radiologist, Dr. Ray Harron of West Virginia.

Harron, who works solely for plaintiff attorneys, charged between $25 and $125 per case. In fact, in at least 1800 cases, he provided separate reports that the patients had both asbestosis and silicosis, a pattern the court, based upon expert testimony, ruled was theoretically possible but, even if observed, would be a clinical rarity. Harron was very accommodating, even providing blank B-reader forms with his signature for the lawyers he worked for to complete. (Remember, good customer service does pay off!)

Dr. Barry Levy, winner of the prestigious Sedgwick Memorial Medal in 2005, came under withering attack from Judge Jack, whose opinion stated that, in rendering a diagnosis of silicosis in 1239 patients, Levy spent an average of only four minutes per patient.

Many of the screening firms and doctors participating in B-reading programs were paid as much as four times more for rendering a positive diagnosis. X-ray techs were encouraged to perform suboptimal exams to limit any legal challenges to the findings. Respiratory techs were paid to report positive pulmonary function test results, after being instructed how to obtain the poor results lawyers desired. For many of the doctors employed by lawyers, the relationship-much like characters in Chinatown-became incestuous, to the detriment of patients.

The RAND Corporation reports that 70 companies so far have been forced into bankruptcy by asbestosis litigation, with $70 billion paid out in claims. That number is projected to rise to $265 billion. Lawyers typically collect 33% to 40% of settlements, which have averaged $60,000 per claim. This fee, combined with the out-of-pocket expenses collected from clients, often results in the lawyer's take being bigger than the client's. Not only does that seem wrong, but in addition, these clients have nothing wrong with them.

When asbestosis claims exceeded 250% of projections, court-ordered independent audits showed clear discrepancies between attorney-employed B-readers and independent ones. Those readers who contracted with attorneys had a 91.7% positive case rate, while independent readers found only a 4.5% positive rate based on the same films. According to court findings, this was "statistically significant and beyond reasonable inter-reader variability."

Based on these numbers, at least $28 billion in claims were fraudulent. Said Judge Jack, "[The diagnoses] were driven by neither health nor justice: they were manufactured for money." The lawyers killed off 70 companies and raped at least 6000 others. In one case, an asymptomatic patient committed suicide after receiving a positive diagnosis for a disease that existed only in a purely legal context. Pretty dramatic. Maybe they can get Jack Nicholson for the film version?

What does this have to do with the just-passed RSNA? Just as in most film noir, criminal behavior in real life is often induced by an offer of easy money. For many years, I was a B-reader and refused pressure to adjust my readings. When I took my first B-reader certification exam, another test-taker was forcibly removed from the examination. We were later told he was a lawyer who had tried to fraudulently take the exam.

Twice at the RSNA meeting, I was approached by individuals offering me easy money-both with similar offers. One individual wanted to use my signature as a rubber stamp for studies being read outside the U.S. for which he was paying a foreign radiologist just $1 a case. He would then pay me $5 a case, and he assured me that I could expect as much as $5000 a day by the end of 2006 just for the use of my name in this manner.

Although I turned the offer down, I have absolutely no doubt that someone else will accept it. (Whoever you are, please drop me a line and tell me how things go for you.)

The bottom line: I suspect that Martindale might agree that if you are going to respond to any offer on late night television, you should choose Suzanne Somers' offer of a Thigh Master over anything from a lawyer.

Dr. Trefelner is a radiologist and cofounder of NightShift Radiology. He invites comments by e-mail at ericxray@pacbell.net or fax at 650/728-5099. He also answers questions posed by readers in the "Ask Eric" column on diagnosticimaging.com.

For more information:

Dr. George Martindale's deposition:

http://docs.mdl1553.com/docs/2258.pdf

U.S. District Judge Judge Janis Graham Jack's ruling in the case:

http://www.caller2.com/2005/pics/PTO29jurisdiction.pdf

Mealey's Litigation Report: "Why We Have To Defend Against Screened Cases"

http://www.lakesidepress.com/Asbestos/AdobeDocuments/SetterArticle.pdf

Washington Legal Foundation commentary on the U.S. District Court ruling:

http://www.wlf.org/upload/081205LBStadler.pdf

Pepperdine Law Review article: "On the Theory Class's Theories of Asbestos Litigation: Disconnect Between Scholarship and Reality"

http://www.tcjl.com/TACC_files/Fdocuments/Brickman.pdf