Saturday, December 27, 2008

Colombo the Asbestos Sleuth

A judge exposes more phony claims

Good legal news for a change: The courts keep making progress against phony asbestos lawsuits, this time in Michigan, where Wayne County Circuit Court Judge Robert Colombo, Jr., has risen to the challenge of a case we wrote about in November.

Judge Colombo has been overseeing asbestos cases in which defendants were trying to disqualify Michael Kelly, a physician who had diagnosed thousands of people with asbestos-related disease on dubious grounds. The judge made clear in court that he didn't appreciate the national attention of our editorial, to put it mildly. But in the end he did the right thing by granting a hearing into Dr. Kelly's diagnoses. Tellingly, the plaintiff attorneys immediately withdrew all but one of their suits.

The judge plowed ahead anyway, helping to expose another asbestos scam. Defendants presented evidence that Dr. Kelly was neither a radiologist nor a pulmonologist and had failed the test that certifies doctors to read X-rays for lung disease. They also showed that the overwhelming majority of hospital radiologists who had reviewed Dr. Kelly's patients found no evidence of disease. An outside panel of radiologists who looked at Dr. Kelly's work found abnormalities in only 6 of 68 patients; Dr. Kelly had found abnormalities in 60 of those 68.

More than 90% of the lung function tests Dr. Kelly performed failed to meet basic standards. The defendants also showed that Dr. Kelly submitted nearly identical reports for every patient he saw, yet he failed to note that some of his patients also had heart disease or renal failure. Asbestos attorneys apparently don't pay for doctors to observe the Hippocratic Oath.

In his ruling, Judge Colombo laid out the facts and found that "the only conclusion in the face of such overwhelming medical evidence is that the opinions of Dr. Kelly are not reliable." He then disqualified him from the case. The effects will be dramatic -- and salutary to the cause of justice. According to Michigan records, Dr. Kelly has been responsible for reporting more than 7,300 cases of asbestos disease. It is unclear how many of those cases have already been adjudicated, but what is clear is that no new suits bearing the doctor's name will see the legal light of day. Some 95% of Michigan asbestos cases are filed in Wayne County and come to Judge Colombo.

The plaintiffs firm -- Greenberg, Persky and White -- has already requested a delay in another 180 cases that were due to be heard in January and May -- and which presumably also relied on Dr. Kelly. Judge Colombo denied that request, which means the plaintiffs will either have to dismiss or find some other doctor to replicate Dr. Kelly's miraculously consistent diagnoses.

Asbestos tort litigation is one of the great rackets of the age, with bogus claims tying up courts in ways that deny justice to the genuinely sick. Too many judges have tried to clear their dockets by running an assembly line that failed to look at the actual evidence, letting plaintiffs and their pliant doctors pass through phony claims. Congratulations to Judge Colombo for cleaning up his own court. If more judges did the same, the asbestos shakedown would end and our legal system would have a better reputation.


Genetic screening ends fears of breast cancer for British couple

A baby genetically screened to be breast cancer free is due to be born within days. In what is believed to be the first publicised case in the world, a British couple underwent pre-implantation genetic testing to free their children from the disease. At the same time, IVF Australia has announced it will start the genetic testing for the aggressive breast cancer gene BRACA 1 next year.

Testing for the breast cancer gene has been available in Australia for about five years. Very few IVF clinics offer it due to the ethical dilemma involved. Pre-implantation genetic testing is used to screen for hereditary diseases such as cystic fibrosis. But screening for breast cancer is considered controversial by pro-life groups because there is a chance not all embryos will develop the gene mutation and could have led a healthy life.

The British couple, who do not wish to be identified, are one of two in the UK who have publicly decided to undergo the test after their families had been afflicted with breast cancer. Without screening, any daughter of the couples would have an 80 per cent chance of developing the fast-spreading form of breast cancer. "I thought this was something I had to try because if we had a daughter with this gene, and she was ill, I couldn't look her in the face and say I didn't try," the 27-year-old expectant mum said.

Men can be carriers of the rogue gene. Had the couple conceived naturally, any child would have a 50 per cent chance of also carrying the gene. "We had been through his sister being ill, so it was something we had seen first hand," the woman said.

Another couple, known as Matthew and Helen, have also undergone the screening to try to eradicate the hereditary breast cancer gene. "I've lived much of my life with cancer and death, and fear that I might have to face it and might pass on the risk to my children," Helen said. "This gives us the chance to make sure our daughters won't have the same experience."

Genetic testing involves using IVF to create a selection of embyros. Scientists then select the ones without the rogue gene and implant them in the woman. Several clinics, including Sydney IVF, offer screening for BRACA 1 and 2 genes. "What is significant about this case is that normally genetic testing is done for things that affect the baby, not adult diseases," said Peter Illingworth, IVF Australia's medical director.

Breast cancer survivor Ayda Soydash, 29, may never be able to have children after her treatment, using Herceptin, brought on early menopause. But yesterday Miss Soydash said she supported genetic testing for hereditary breast cancer. "Definitely, definitely it is something I would do," she said.


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