Michigan Malpractice

One reason we know about the great silicosis legal scam is that a Texas judge was brave enough to expose doctors who'd been paid by tort lawyers to gin up phony diagnoses. So it is encouraging to see a Michigan judge now helping to expose evidence of similar medical fraud in asbestos claims.

This action is taking place in the courthouse of Wayne County Circuit Court Judge Robert Colombo, Jr. Asbestos defendants have been attempting to disqualify Michael Kelly, a physician who appears to have falsely diagnosed thousands of people with asbestos-related disease. Judge Colombo recently gave them an opening, which is already having a dramatic effect on state asbestos claims.

Michigan is one of the last state holdouts against asbestos tort reform. Texas, Ohio and Mississippi have passed laws or created court procedures to clean up their dockets, and new asbestos filings are declining nationally. But they're still climbing in Michigan, the venue for nearly 14% of U.S. asbestos suits and No. 1 in 2007 for new filings (996).

Enter Dr. Kelly, who is behind many of these cases. The Lansing physician is neither a radiologist nor a pulmonologist. In 1989 he failed the federal test that certifies doctors to read X-rays for lung disease. Yet according to Michigan state records, over 15 years Dr. Kelly has reported 7,323 cases of asbestos-related disease. Lawyers paid him $500 per person screened.

Unlike the silicosis doctors who did their own phony work, Dr. Kelly made the mistake of sending his clients to a hospital for X-rays. Under hospital procedures, staff radiologists read the X-rays first. When asbestos defendants obtained the plaintiff medical records, the hospital findings were included. In 88% of the 1,875 cases in which plaintiff X-rays were reviewed both by Dr. Kelly and hospital radiologists, the hospital readers found no evidence of disease. The medical records also showed that the vast majority of the lung-function tests Dr. Kelly performed failed to meet accepted standards.

Of the 91 asbestos cases Judge Colombo was set to oversee this month, Dr. Kelly provided a diagnosis in 80. In addition to giving the judge a broad picture of Dr. Kelly's work, defense attorneys also retained two respected pulmonologists to review specific cases. Jack Parker, who spent years at the Centers for Disease Control, provided the court with a blind study in which independent X-ray readers found an abnormality in only one of 68 (1.5%) X-rays that Dr. Kelly read. Dr. Kelly had found abnormalities in 88% of those X-rays.
Michigan Medicare may cover the price of X-rays.

Judge Colombo, who has been the state's asbestos judge since the early 1990s, initially balked at diving into this medical evidence -- suggesting he preferred a quick and easy settlement. But in the face of evidence that up to 90% of the cases in front of him were fraudulent, he ultimately relented and last week agreed to a hearing on Dr. Kelly. At which point something astonishing happened. Within 24-hours of the judge's decision, the plaintiffs attorneys voluntarily pulled all but one of the suits. They clearly have no interest in subjecting their "doctor," and his methods, to judicial scrutiny.

Judge Colombo should do it anyway, and get to the bottom of Dr. Kelly. It's always easier for judges to orchestrate quiet settlements than to preside over trials, which take time and effort. But the reason so many asbestos defendants have pre-emptively settled over the past 20 years is because court rules have been stacked against them. Now that they've finally cracked the lid on this diagnosing for dollars fraud, courts have a responsibility to investigate.