Comments on NIOSH's Proposed 'B Reader Code of Ethics'
Yeshiva University - Benjamin N. Cardozo School of Law
The National Institute for Occupational Safety and Health (NIOSH) has a program to certify doctors as competent to interpret pulmonary X-rays using the International Labour Office (ILO) International Classification of Radiographs (X-rays) of Pneumoconiosis. Doctors so certified are referred to as B Readers. The NIOSH B Reader Program was established to reduce the level of variability among X-ray readers by objectively documenting proficiency in evaluating the characteristics and patterns of images on chest X-rays for occupationally related lung disease.
NIOSH currently certifies approximately 400 B Readers. Of this number, approximately 15-25 current and former B Readers have done a majority of the several hundred thousands of B-readings that have been submitted in support of asbestos and silica-related personal injury claims.
In several published articles, I have offered the opinion, based upon the evidence I presented, that many of these 15-25 B Readers are not engaged in good faith medical practice but rather provide X-ray readings and diagnoses for litigation purposes that are primarily a function of the millions of dollars a year in income that they receive for their services. Earlier this year, U.S. District Court Judge Janis Jack, presiding over the silica MDL (Docket No. 1553), concluded that lawyers, doctors and screening companies had created a scheme to manufacture [diagnoses] for money.
Taking note of the mounting evidence that certain physicians, including NIOSH-certified B Readers, were engaged in improper practice, NIOSH is proposing to adopt Ethical Considerations for B Readers. Federal Register, Vol. 70, No. 221 (Thursday, Nov. 17, 2005/Notices at 69765). I have responded to NIOSH's request for comments on its proposal.
In my comments, I briefly review the elements of an entrepreneurial model of nonmalignant asbestos litigation that I more fully describe in my published writings as having come into being in the mid to late 1980s. The core of this entrepreneurial model is the mass screening and the use of B Readers and other physicians to generate medical evidence in support of hundreds of thousands of mostly specious claims.
I recommend that NIOSH create an audit process to review the work of high volume B Readers who read X-rays for litigation purposes. Under my proposal, a neutral panel of B Readers will, upon complaint, reread a sample of the B-reads of a litigation doctor to determine whether there is a prima facie case of nonconformance with ILO standards. If the panel concludes that that B Reader has substantially departed from ILO standards, it shall recommend to NIOSH that it withdraw its certification of that Reader. In the event of such recommendation, NIOSH shall notify appropriate state licensing authorities and medical certification boards of that recommendation.
Number of Pages in PDF File: 10
Keywords: B Reader, asbestos, asbestosis, silica, silicosis, MDL, entrepreneurial model, NIOSH, code of ethics
Date posted: December 28, 2005
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