The Wall Street Journal

December 8, 2005

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Doctor of the Year
December 8, 2005; Page A16

In Philadelphia this coming Sunday, the American Public Health Association plans to hand out its "oldest and most prestigious award," the Sedgwick Memorial Medal, to one Barry S. Levy. We don't doubt the association means well, but we also can't help but point out that Dr. Levy deserves much more public health attention as one of nine physicians who are at the center of a growing scandal over silicosis and asbestos diagnoses.

Federal prosecutors and Congressional investigators are currently probing the machinations of some of these doctors, along with lawyers and X-ray screening companies, in at least one big silicosis case. And judges across the country are beginning to question the legitimacy of hundreds of thousands of other asbestos and silicosis suits in their courts. That Dr. Levy could be so feted shows how little attention the media or medical profession have paid to court findings that point out the role some doctors have played in the silicosis and asbestos scams.

The physicians in this case burst into the legal spotlight in July when federal Judge Janis Graham Jack revealed that these nine alone were responsible for 99% of some 9,000 silicosis diagnoses in front of her court. She ultimately blasted those claims as bogus, and laid particular blame on the doctors whose "diagnoses were driven by neither health nor justice: they were manufactured for money."

Included in this condemnation was Dr. Levy, who, let us be quick to add, holds an impressive resume. An adjunct professor at the Tufts University School of Medicine, he was formerly at the Centers for Disease Control and once served as APHA's president. Dr. Levy is also the author of a textbook on work-related diseases such as silicosis.

Maybe it was because of this history that Judge Jack noted that, of all the doctors in the suit, Dr. Levy's "participation in this enterprise is perhaps the most disappointing." She devoted 12 pages of her opinion to his role in the Texas silicosis litigation, much based on testimony the doctor had given. She started with the fact that he'd diagnosed approximately 1,389 of the plaintiffs in the suit. This is amazing, given that silicosis has become rare in the U.S.

And it is even more amazing given that Dr. Levy "did not take the occupational or medical histories of any of the Plaintiffs; he did not perform the [X-ray reads] on any of the Plaintiffs; he did not perform the physical examination of any of the Plaintiffs; and he did not speak to any of the Plaintiffs or their primary care physicians," according to the judge.

Instead, according to the judge, he developed a "protocol" for how other doctors were supposed to do preliminary work for him, although he admitted he did not know "what actually took place." (Judge Jack found "no evidence" that this protocol was followed.) Dr. Levy ultimately produced 1,239 diagnostic evaluations in 72 hours; the judge noted he devoted less than four minutes on average to each of his evaluations in the litigation.

The diagnoses were, perhaps unsurprisingly, picked apart in court. For starters, defense attorneys say more than 1,000 of Dr. Levy's silicosis plaintiffs had previously been diagnosed with asbestos -- despite the fact it is very rare for anyone to have both. (In fairness, Judge Jack said Dr. Levy was unaware of the prior asbestos claims.) When questioned about several specific cases, Dr. Levy withdrew his diagnoses. Judge Jack also noted that nearly every case presented to the court lacked sound medical foundation, including that none of the patients' histories that Dr. Levy relied on were even taken by a physician. He instead used histories taken by law firms or screening companies.

What really astounded the judge, however, was that Dr. Levy appeared to show no regard for the professional ethics he himself has advocated in the past. Judge Jack noted that one of Dr. Levy's published articles tells doctors that if they diagnose even a single work-related illness, they should inform employers or a government agency, to prevent others from getting sick.

In this case Dr. Levy diagnosed nearly 1,400 people with a serious disease. "Yet despite the fact that Dr. Levy has provided consulting services to NIOSH, OSHA, the CDC, the Environmental Protection Agency, and the World Health Organization -- and therefore would know the proper people to call if he felt it was appropriate -- he chose to notify no one but the lawyers who paid his bills," wrote Judge Jack.

In the end, the judge found that Dr. Levy "had an agenda: diagnose silicosis and nothing else." Moreover, the judge wrote, he "saw his role with respect to these cases as beginning and ending with litigation." We should note that Dr. Levy, unlike other physicians in the Texas litigation, does not appear to have been much involved with more widespread asbestos litigation. Reached by phone, he provided us with the following statement: "I am honored to be the recipient of the Sedgwick Memorial Medal and regret that the issues in the silica litigation are being brought up in the context of this great honor for my life's work in public health. I have always acted with integrity and I am proud of all of my work."

The point here isn't that physicians don't have a right to earn an extra buck, or that some doctors don't serve valuable roles in courtroom settings. The problem is that over the years, as Judge Jack's opinion shows, litigation has turned into a lucrative industry and some doctors have compromised their professional ethics in the process.

This has profound consequences, in particular in the area of "public health" for which Dr. Levy is being honored. As Judge Jack noted, sham diagnoses have huge consequences for the unfortunate individuals who are pulled into these suits. The vast majority are in fact healthy but are saddled with "diseases" that drive up premiums on their health and life insurance -- assuming they can still get the coverage. They also must deal with the wrenching emotional toll of being told (falsely) that they have a serious illness.

As for the few plaintiffs who may actually have abnormal X-rays or health problems, which were wrongly ascribed to silicosis, it is possible that they have a truly serious disease that is going untreated because doctors and lawyers were so eager to sign them up for a particular lawsuit. Meanwhile, sham diagnoses and huge lawsuits only encourage employers or government agencies to treat all workplace illnesses with skepticism.

APHA's executive director, Dr. Georges Benjamin, told us that the group's award committee was aware of the Texas litigation, but did not feel it warranted changing its decision to give the Sedgwick to Dr. Levy. "We think his work in public health has been extraordinary, and this is for a lifetime of work," said Dr. Benjamin.

The organization's Web site says it is "devoted to improving the public's health." It could start by reserving its award for doctors who actually do so.

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