Diagnosing for dollars?

Dr. Greg Nayden still chafes at the memory of a call from his brother, informing him that a highly critical Dallas newspaper story posted on the Internet told how Nayden had made $1.2 million in just two years by diagnosing every person he saw with asbestos-related lung disease.

That's one of the many reasons, Nayden said, that he now wishes he'd never worked for American Medical Testing Inc., a now-defunct Mobile firm.

"I've been made out to be a real crooked, unscrupulous doctor," Nayden said during one of several telephone interviews while spending a short vacation in Fort Morgan.

In those interviews, the southeast Mississippi doctor alternately sounded angry and deeply saddened with the way he has been portrayed.

"I've been raked over the coals on this. My name is mud," said Nayden, who contends that he examined only people who had been deemed to have asbestosis prior to seeing him.

Nayden, though, is not alone in coming under fire from critics of the asbestos litigation explosion. Those critics accuse screening companies -- a number of which have operated out of the Mobile area -- of grossly overdiagnosing asbestosis, the most common asbestos-related illness.

Studies by groups, including the highly regarded Rand Institute for Civil Justice, estimate that as many as 90 percent of those diagnosed with asbestosis in recent years either don't have it at all or suffer little or no impairment attributable to asbestos.

According to court records and testimony taken for lawsuits against the asbestos industry, owners of the Mobile-area screening companies and the doctors and technical staff they hire:

Frequently are unqualified to diagnose or test for lung illnesses, such as those caused by asbestos and, in many cases, are unlicensed to perform these functions.

Have testified that they don't operate with written contracts and don't know or won't reveal how much money they make.

Say they don't keep records of how many people they test and don't track positive diagnoses vs. negative ones, making it all but impossible to compare their findings of asbestosis against those generated by more established medical sources.

One veteran asbestos attorney has called the Mobile-to-Pascagoula stretch the "screening hub of the universe," a hub that legal scholars contend has figured prominently in the longest-running and most complicated product-liability litigation in the history of American law.

The medical practices of screening companies, long scorned by asbestos defendants, have been lambasted by otherwise neutral sources and, in one notable case, by someone who's anything but neutral.

Dr. David Egilman, a nationally recognized expert on toxic substances and a professor at Brown University medical school in Providence, R.I., has testified as an expert witness on behalf of about 100 plaintiffs with asbestos lawsuits.

His specialty -- his "shtick," as he jokingly called it -- is the history of asbestos, focusing on what corporations, such as Johns Manville and Owens Corning, knew about the hazards of asbestos and when they knew it. The actions of asbestos-products companies, he says, were evil and callous.

Several years ago, Egilman started playing on both teams -- providing consulting services for asbestos defendants as well as plaintiffs.

Over the years, he said, as the trial lawyers who hired him sent along the medical records of the plaintiffs, Egilman became increasingly troubled by what he saw.

"I realized at some point that some of these people are not really sick," Egilman said in a telephone interview last week. "From a policy perspective, I'm interested in justice. If all the people who are not sick get money, then there won't be enough money for the people who are sick -- that's the main issue."

Egilman said he believes that screening companies do two things that violate good public policy: They help generate tens of thousands of plaintiffs who aren't suffering from asbestos-related illness, thus draining billions of dollars from those who are ill; and they can create substantial health concerns on the part of those who get tested.

"What troubles me most is that it inflicts harm on some people, because they don't know it's a game," he said. "They are actually told by people that they are sick and incurable, and that's really bad, and they get upset."

Of the many depositions from court cases reviewed by the Mobile Register for this series of stories, the two taken of Nayden and American Testing's owner, Guy Wayne Foster, stand out in one key respect.

Both seemed to try to answer every question. And both revealed aspects of their work -- financial and otherwise -- that owners of other Mobile-area screening companies and their doctors routinely described in two basic ways during depositions: "can't remember" and "none of your business."

"I wasn't sweating any improprieties," Nayden said about his willingness to answer the questions. "I was stupid for being honest with them, but I didn't have anything to hide.

The bare facts -- minus explanations to come by Nayden and Guy Foster -- are these:

In a March 2002 deposition, Nayden testified that his primary experience was as an emergency room physician. He still works as such.

The lead corporate attorney questioning him that day asked Nayden if he had studied pulmonology, to which he responded that he had not.

The attorney also asked Nayden about terminology and widely recognized studies with which physicians charged with diagnosing asbestosis should be familiar. Most of the time, the doctor acknowledged ignorance.

"If I understand correctly," the attorney asked, "you did not treat or evaluate anyone for asbestos before you started working for Respiratory Testing Services or American Testing?"

Neither Guy Foster's company nor Respiratory Testing Services Inc., a Mobile firm owned by his uncle, Charlie Foster, provided Nayden with training or encouraged him to seek training in the process of diagnosing asbestosis-related disease, he said.

There is no indication that Nayden has ever faced the threat of disciplinary action for his work with the screening companies.

Nayden disclosed during the deposition that he made $125,000 in 1999, when he worked at a health clinic in Muscle Shoals, Ala. In 2000, his first full year in the screening business, he made $400,000 and doubled that the next year, for a total of $1.2 million.

The attorney leading the questioning asked Nayden if he knew how many of the 14,000 or so people that he had tested were classified as having asbestosis.

"And where I'm going with this: Have you ever seen any individuals that came through that you did not render a report saying that they had asbestosis?" he asked.

Six months after the deposition, the Manville Personal Injury Trust -- the largest processor of asbestos claims -- notified asbestos trial lawyers that it would no longer pay claims based on medical evidence from Nayden and American Medical Testing.

The company's medical reports "appeared to be legitimate medical records, but upon investigation, were bereft of credibility," the trust concluded.

The American Bar Association used the Nayden example in a study published last year that blistered testing companies, as did conservative legal scholar Lester Brickman in a highly critical law review article published in January.

In what might come as a shock to the ABA, the Manville Trust and others, Nayden said he actually agrees with their central argument: screening companies grossly overdiagnose for asbestosis.

Of the 14,000 or so people he saw, Nayden said, "To be honest with you, I don't think many of these people had any problems.

"On a scale of asbestos lung disease that goes from 0 to 10, with 10 being lung cancer and mesothelioma (a type of incurable cancer), the vast majority of people I tested fell into the 0 to 2 range," said the 54-year-old physician.

The answer, given by both Nayden and Guy Foster, is that neither the doctor nor the company made a medical diagnosis that anyone had asbestosis.

Foster's company was something of a niche organization in the screening business in that it didn't shoot X-rays or hire B-readers, who read X-ray images to determine whether asbestosis is present.

Instead, plaintiff lawyers hired American Medical Testing to give breathing tests and physical exams to people who already had been diagnosed with asbestosis by B-readers hired separately.

Criticisms of his work overseeing those breathing tests and providing those exams have neglected to report that thousands of workers may have had negative X-rays, Nayden said. When that happened, he said, he never saw them.

"I didn't get everybody," he said. "I never saw anybody with a negative chest X-ray."

To some degree, the Manville Trust did consider the defense proffered by Foster and Nayden. Its report, however, cited testimony by a B-reader who had reviewed most of the X-rays, and who said he didn't consider himself to have actually diagnosed anyone with asbestosis either.

"In summary, none of these three AMT principals takes responsibility for the diagnosis of an asbestos-related disease for any of the approximately 14,000 claimants screened at that facility," the trust reported.

Nayden told the Mobile Register that neither Guy Foster nor anyone else instructed him to exaggerate a person's health problems -- something he said he wouldn't have done if asked.

With each report, Nayden listed the person's scores on the breathing tests. He also commented on the degree of impairment suffered by that person.

Because most of the people he tested showed minor or negligible asbestos-related impairment, most of his reports reflected their lack of significant symptoms, he said.

If fingers are to be pointed anywhere, it should be at the lawyers, Nayden said. They're the ones -- not him or Foster -- who chose to file cases on behalf of people with little or no detectable impairment, he said.

The longer Nayden worked in the screening business, the more he realized that few of the people he examined had been harmed by asbestosis, though they may have believed otherwise, he said.

"You've got to remember that many of these people are in their 60s or 70s. You ask them if they get short of breath, and they say, 'Yes.'

"Heck, if me and you were 70 and someone asked if we got short of breath when we worked in the yard, we'd say, 'Yes,' too," he said.

One group in particular -- older men from the Mississippi coast who had disassembled World War II "Liberty ships" in the 1940s and 1950s -- showed considerable signs of impairment, Nayden said. But they were the exception.

Nayden doesn't deny that the money was great, but he said the job was miserable. He said he stayed on as long as he did only to help Guy Foster, who couldn't find a doctor willing to give up his practice for what could be a temporary post.

"I was on the road five days a week, and I tested people in five different states," Nayden said. He said he was "in the trenches with people" who he doubted were seriously ill, and "after a while, I just couldn't take it anymore."

On Oct. 14, 2002, Dr. Jay Segarra opened an October 2002 deposition by informing lawyers for asbestos defendants that he had brought a list of trials in which he had testified. He also had a list of dates when he had been deposed and his resume.

The Ocean Springs, Miss., doctor added that what he brought wasn't "exactly what you asked, but that's what I did bring."

The defense lawyer who opened the day's questioning didn't give Segarra time to finish his next sentence.

"What I'm looking for," the lawyer asked, "are invoices for screenings performed in Washington (state) from 1998 to the present."

Segarra responded that he couldn't locate the bills he had sent to Respiratory Testing Services, the Mobile-area company he'd worked for while in Washington. He said he'd asked his wife, who was also his bookkeeper, to look as well.

"I believe she attempted to do so and could not (locate them)," Segarra testified.

If there's a common theme in the depositions by the Mobile-area men who own or have owned screening companies and the doctors they've used, it's how little they reveal to the opposing lawyers who participate in deposition sessions.

In most of these encounters, the lawyers for asbestos defendants cover a lot of ground, much of it involving the science of testing and lung disease.

Of those you tested, how many tested positive for asbestosis, and how many tested negative?

Both questions are designed to help defense attorneys show bias on the part of the companies and doctors by linking profit motive to a high rate of positive diagnoses.

Time and again, though, the company owners and doctors arrive at depositions without records they had been directed to bring that could conceivably support their claims of positive testing rates in the neighborhood of 30-50 percent.

"If you're doing screenings, keeping records is a kind of important thing to do," Egilman said. "Presumably, you're keeping records to find out what the answers are and as part of quality control.

"Why do I think they don't (keep records)? I don't think they want to get cross-examined on it," he said.

Attempts to question Heath Mason about his company's records proved all but fruitless for defense attorneys who deposed the 29-year-old Grand Bay man last summer.

Mason, co-owner of Pascagoula-based N&M Inc., declined to be interviewed for this series. The transcript of his July 8, 2003, deposition reflects that he was only slightly more forthcoming with the dozen or so lawyers who had him under oath.

The deposition questions focused on damage claims brought by 27 people diagnosed as suffering from asbestosis by N&M and one of its B-readers, Dr. Ray Harron of West Virginia.

Mason told the lawyers he hadn't brought the test results of the 27 people, despite their written request. The reason, he said, was that N&M hadn't maintained any records on those particular plaintiffs.

"We were called to do their chest X-ray. We did their chest X-ray. We were called to do their pulmonary functions. We did their pulmonary functions. We had no reason to keep any files on these -- these particular plaintiffs. We had no information on these plaintiffs to keep," Mason testified.

On the day that the 27 were tested and determined to suffer from asbestosis, had any others been tested and determined not to suffer from the disease?

During the deposition, a defense lawyer introduced as an exhibit a type of form called an ILO, which B-readers fill out for each person.

The forms include personal information about the subject, including address and Social Security number and have places for the screening company doctor to write in the results from certain tests and the diagnosis. At the bottom is a line for the doctor's signature.

As is clear from the deposition, the lawyers questioning Mason that day had procured a number of N&M forms that were blank but for one line -- the signature line at the bottom.

"Has he (Harron) provided blank forms that are presigned and then you folks fill in, for example, the name, the address and the date?" the defense attorney asked.

Mason replied that in some cases, Harron's signature had been scanned onto the forms, and people on his staff had typed in those parts of the form that dealt with a subject's personal information.

"And how do we know Dr. Harron is doing the interpretations if you have these blank presigned ILO forms?" the attorney asked.

N&M's owner was asked if he had ever filled out portions of the form that doctors must complete, such as what the lawyer called the "small opacity provisions."

"Remember, I only have a high school degree, sir. I don't even know what a small opacity is," Mason said.

N&M's owner answered subsequent questions by stating that neither he nor anyone else on his staff would have completed those portions of the forms dealing with the actual diagnosis.

Jerry Pitts of Grand Bay didn't know the first thing about B-readings or pulmonary function tests when he entered the testing business in the early 1990s, and five years later, he still didn't know much about it, according to his testimony in a 1996 deposition.

"I'm not a technician, and I'm not a doctor," said the owner of Pulmonary Testing Services Inc., when asked if he could read a pulmonary function test.

Pitts compensated for this by hiring people who, he said, did know what they were doing, he said.

Among those was another Grand Bay man, Leon Hammonds, who was hired to oversee the pulmonary function tests. Hammonds had a two-year degree in respiratory therapy from Mississippi Gulf Coast Community College, had worked at a local hospital and had a part-time job with the Gulfport college teaching respiratory therapy.

Over the next several years, Hammonds employed many of his students to conduct the breathing tests for Pitts' company.

Deloris Bailey of Gulfport testified years later that she didn't consider herself or the other students to be qualified at the time to give the tests. None, she said, were aware of the American Thoracic Society, much less its guidelines for administering pulmonary function tests.

"Did they ever meet with you and ask you about your credentials?" a defense lawyer asked Bailey, referring to her hiring.

A 1995 lawsuit by asbestos manufacturer Owens Corning accused Pitts, his companies, Hammonds and others of fraud and rigging the testing procedures. The purpose of the wrongdoing, according to the suit, was to generate tens of thousands of plaintiffs for cases against Owens Corning and other defendants.

For example: Guidelines for the breathing tests require that subjects exhale for at least six seconds or, failing that, reach a plateau for at least two seconds.

Most people, even those with fairly serious lung illness, can do one or the other, according to studies cited in the case.

Hammonds testified that most of the people tested by Pitts' companies didn't satisfy either requirement "simply because most of the clients could not do it."

Bailey, in her testimony, estimated that about 95 percent of those who came to Pulmonary Testing could exhale for the six-second minimum.

Hammonds, though, instructed her to direct clients to take a series of quick breaths and not to "squeeze the air out." Afterward, about 95 percent of those she tested instead failed to reach the six-second mark, Bailey said.

Owens Corning hired medical experts to audit a sample from more than 26,929 breathing tests in which Pitts deemed the test subjects to have asbestosis. The audit found that 93 percent of the 26,929 exhaled less than six seconds.

Bailey said that when Hammonds instructed her to tell people to take quick breaths, she didn't question the directions.

"Because at that point, he was my instructor in school. So, you know, I thought that that was the way they were supposed to be done," she said.

there's a clinic that advertises around here for people to who have work injures (the ad is more like - get a lot of money if you're injured).

The "clinic" says it is so helpful that they will even get you a lawyer. You can be sure the "diagnosis" is more determined by the lawyer than the doctor.

"Doctors" in cahoots with trial lawyers - it's a really evil mix.

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