Civil Justice Memo
No. 26 June 1996
Lawyers with Stethoscopes: Clients Beware
by Walter K. Olson
Lawyers don’t style themselves M.D., but they often exercise much control over the fitting out of their clients with diagnoses. They refer new clients to favored doctors and send samples to favored labs. They shape clients’ views of their medical condition and its likely prognosis by steering them to the right literature, seminars and peer support groups. Yet their own financial stake in the case is entirely wrapped up in the findings: they may get no compensation for their efforts if nothing is found to be seriously wrong with the client, if recovery is speedy and complete, or if any aches and pains found are deemed unrelated to suable conduct. At the extreme, responding to these incentives, some abusive “medico-legal” practices can be found willing to opine that practically every passenger involved in a low-speed bus collision has soft-tissue injury, every construction worker has asbestos disease, every harassed worker has suffered disabling post-traumatic stress, and so forth.
But when diagnosis veers from scientific truth, as doctors know, all sorts of unpleasant consequences follow. Some patients develop the symptoms predicted for “their” disease. Some resort to radical and perhaps dangerous therapies in hopes of combating it; the medico-legal practitioner may know better than to offer such therapies, but there’s no keeping a panicky patient from visiting the local quack. Other clients will believe that their joint pain, wheezing or neurological symptoms have been accounted for and cease to pursue the question, though in fact they’re suffering from some serious and genuine disease unrelated to the litigation. When trial lawyers stoked a national panic over the supposed effects of the morning sickness drug Bendectin in causing birth defects, numerous women who’d used the drug underwent abortion of fetuses they were carrying, though there was and is no reason to think the resulting babies would have been any less healthy than babies generally.
Allegations in several recent cases suggest that it may not be a wise idea to rely on medical advice from one’s tort attorney:
* The ABA Journal, National Law Journal and local press reported in May of last year that five Texas lawyers had been sued by many of their own clients for (legal) malpractice in representing them after a 1987 explosion at a Hoechst Celanese plant near Amarillo. According to their attorney, Larry Doherty, the lawyers “were out there scaring people to death with stories of how the people could expect brain damage, deformed babies, cancer deaths and everything else. There was never any medical basis for any of it.” Eventually, 800 neighbors sued the German-owned chemical company, which settled for $27 million. “The people were sold a bill of goods about cancer and mutations, and led to believe that the chemical company caused them mental anguish. Actually it was the lawyers causing the mental anguish,” says Doherty, who said the lawyers were incautious enough to allow clients to tape 80 conversations. (“Truthfully and candidly, Tom [another lawyer] and I created this out of smoke and mirrors,” a lawyer is said to assert in one of the transcripts.) Also according to pleadings, one of the lawyers set up a bogus environmental organization in order to get him before townspeople at a meeting where they were signed up on the spot.
* As The Wall Street Journal’s Max Boot has reported, another Texas complaint against a leading law firm involved in breast-implant litigation alleges that the firm mixed up clients’ tests, resulting in one client’s wrongly being informed that she had breast cancer–and undergoing an unneeded mastectomy–while another may not have been told that her results were positive for cancer. Meanwhile, the science magazine Discover last December ran a powerful account of how an expert heavily involved in silicone litigation had advertised in Trial (at a price of $350 a patient) a test that supposedly could “detect an immune response to body proteins damaged by silicone.” The Food and Drug Administration called the expert to task for what it said were claims that “imply [the test] is a diagnostic tool,” even though the test’s promotional materials curiously state that it was to be used “for research purposes only”—an apparent effort to establish its use in court while dodging the natural implication that it was actually diagnosing anything.
We’ve attached the latest cover story from the California-based monthly Reason, in which writer Michael Fumento (Science Under Siege) looks at the remarkable rise of claims of “multiple chemical sensitivity,” also known as clinical ecology. Fumento’s earlier article in Reason on the breast-implant imbroglio, along with the pathbreaking coverage of Gina Kolata in The New York Times and Joseph Nocera in Fortune and the recently published book on implants by New England Journal of Medicine executive editor Dr. Marcia Angell, already ensure that this will be a banner year for exposes of junk science.
Fumento points out that the multiple-chemical-sensitivity (MCS) subculture has a genuine life of its own; most of its believers are not apparently pressing compensation claims. On the other hand, our own sources in the litigation trenches tell us that suits backed by MCS theories have won fortunes and continue to thrive. Lawyers, their hired experts and peer-support coalitions are by no means the only force behind MCS (or, to take a psychiatric parallel, the also-much-litigated field of “recovered-memory” abuse charges). But they do lend a crucial element of structure, sophistication, publicity and seeming respectability that is cumulatively important in pulling worried people with vague symptoms into the MCS subculture. When they get into that subculture, as Fumento shows, bad things often happen to them.
Future discussions of the scope of medical malpractice should include a look at the extent to which it’s practiced by lawyers. Dr. Sidney Wolfe, take it away.
Walter K. Olson