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July 2006 Archives

By Elizabeth M. Whelan, Sc.D., M.P.H.

(This piece appeared in the May/June 2006 issue of Skeptical Inquirer)

As society grapples with a possible avian influenza epidemic, threats of biological and chemical terrorism, AIDS, cigarette smoking, drug abuse, obesity, and more, it is vital that public health professionals present reliable scientific information and that the credibility of the public health profession be beyond reproach.

In recent years, however, a worrisome trend has emerged: many in the public health community appear to be promoting politics and ideology over sound science. The slippage of public health science into pseudoscience and agenda-driven initiatives has been going on for some time. The problem was addressed in a 1998 article by the Manhattan Institute's Heather Mac Donald. She noted that the field of public health "increasingly identifies itself by the most radical elements within it," noting that meetings of the American Public Health Association feature speakers like Jesse Jackson and promote caucuses on everything from socialism to lesbian/gay and bisexual rights. Mac Donald decries the drift of the public health community from programs based on sound epidemiological science (with a focus on preventing premature deaths from established causes like cigarette smoking) to the pursuit of agendas related to fighting poverty, racism, and sexual discrimination. She laments the flight of public health from sound science, noting that this evolution "squanders the great legacy of public health."

Last year, the credibility of the public health profession came even more sharply under scrutiny—and Mac Donald's predictions about the erosion of public health as a respected and legitimate profession seem more on target than ever before.

Specifically, two major public health institutions selected for their highest awards individuals whose focus in public health was not traditional preventive medicine interventions (for example, promoting immunizations, smoking cessation, disease screening, etc.). Instead, the award recipients' practice of "public health" focused on litigation against corporations. The message emerging from these awards is this: lawsuits against corporations, whether it means suing a soda company to hold it accountable for childhood obesity or litigating against a chemical company for allegedly causing cancer, are now accepted as standard public health practice—as important or more important than traditional public health educational and service programs based on epidemiological findings about the causes of human disease.

The first of these two awards, the Sedgwick Memorial Medal, described by the American Public Health Association as its "oldest and most prestigious award," was given to Dr. Barry Levy in December 2005. The APHA reserves this award for "an individual who has demonstrated a remarkable record of service while working to further public health practice and knowledge." What remarkable public health achievements by Dr. Levy singled him out for this award? Did he promote water fluoridation? Establish smoking cessation clinics? Advocate more widespread influenza vaccinations? Increase the use of lifesaving seatbelts and bike helmets? Encourage people to eat less and exercise more?

No, not exactly. Dr. Levy may be best known as being one of nine physicians who are at the center of a growing scandal over silicosis and asbestos diagnoses in the course of litigation against corporations. At one point, it was revealed that he produced over 1,200 "diagnostic evaluations" in 72 hours, that being a rate of about one diagnosis every four minutes. The clinical criteria for diagnosing silicosis, among other factors, requires: evidence of significant exposure to the substance over a substantial number of years, radiographic evidence of disease, and confirmation of the absence of any other causes of the condition. These criteria were not met by the physicians making the silicosis diagnoses. Specifically, Dr. Levy was accused by Judge Janis Graham Jack, in the course of his role in Texas silicosis litigation of having "an agenda: diagnose silicosis and nothing else." The judge wrote that Dr. Levy "saw his role with respect to these cases as beginning and ending with litigation." Judge Jack ultimately blasted the diagnosing physicians, including Dr. Levy, asserting that their "diagnoses were driven by neither health nor justice: they were manufactured for money."

As summarized in a Wall Street Journal editorial, "The problem is that over the years, as Judge Jack's opinion shows, litigation has turned into a lucrative industry and some doctors have compromised their professional ethics in the process. This has profound consequences...in the area of 'public health' for which Dr. Levy is being honored. As Judge Jack noted, sham diagnoses have huge consequences for the unfortunate individuals who are pulled into these suits. The vast majority are in fact healthy but are saddled with 'diseases' that drive up premiums on their health and life insurance...they must deal with the wrenching emotional toll of being told (falsely) that they have a serious illness."

The bottom line is that Dr. Levy's participation in what the Judge deemed to be sham diagnoses to support litigation did nothing to improve the state of public health. But APHA still felt he was worthy of the organization's highest award.

Erin Brockovich's Prize for Fighting

At least Levy has been an adjunct professor at Tufts and worked at the Centers for Disease Control, though. The second award that raised questions about public heath credibility was more ridiculous.

The Harvard School of Public Health bestowed its 2005 Julius Richmond Award, the school's highest honor, upon environmental activist Erin Brockovich. Since HSPH notes that the Award "seeks to pay tribute to individuals who—like Dr. Richmond—have promoted and achieved high standards for public health," we must ask, as we did with Dr. Levy, what Brockovich accomplished in the field of public health and disease prevention to merit this prestigious award. (The award is named after the Surgeon General in the Carter administration.)

During the 1990s, Erin Brockovich worked as a file clerk for a California law firm. She ascertained that a Pacific Gas and Electric plant in Hinkley, California was leaching trace levels of chromium 6, a rust inhibitor, into Hinkley's water supply and speculated that this exposure might be making local residents sick. She gathered health records and, working with her legal colleagues, identified some 600 prospective plaintiffs to sue PG&E, claiming exposure to chromium 6 caused a spectrum of diseases ranging from nosebleeds to breast cancer, Hodgkin's disease, miscarriages, and spinal deterioration. In 1996, PG&E settled the case for $333 million, ostensibly to compensate "victims" (the story was later portrayed in a motion picture starring Julia Roberts).

There was never any evidence to support Ms. Brockovich's claim that traces of chromium 6 made people sick. The Environmental Protection Agency does consider chromium 6 a human carcinogen, but it's linked to lung cancer only when it is inhaled (not ingested) in high doses, over many years in occupational settings. A 2001 report by the California Department of Health Services, addressing the cancer claim of plaintiffs' lawyers, concluded: "We found no basis in either the epidemiological or animal data published in the literature for concluding that orally ingested chromium 6 is a carcinogen." For what was tantamount to a corruption of science, the attorneys received $133 million in fees; Ms. Brockovich received over $2 million as a "consultant."

In other words, Erin Brockovich received Harvard's highest accolade for her success in what the HSPH announcement called one of "the largest direct action lawsuits of its kind...where [the] giant utility paid one of the largest toxic tort injury settlements in United States history." She was honored for successfully suing a corporation that allegedly harmed the health of Hinkley residents, even though there was never any evidence that the actions of the corporation caused any ill health whatsoever.

Given this, it is understandable Harvard received considerable criticism for choosing Brockovich as the awardee. While qualified, science-oriented public health professionals were saving lives and preventing premature illness—through educational programs on the dangers of smoking, the benefits of lifesaving technologies like seat-belts and bike helmets, the importance of early detection of disease, and more—an individual who never did anything to save lives and protect public health was feted as a public health heroine.

When called upon to justify the award, the dean of HSPH, Dr. Barry Bloom, maintained that Brockovich was being honored for work "on behalf of all of us...especially the residents of Hinkley, CA whose health was adversely affected by toxic substances." When challenged by critics of the award and reminded that there was no evidence at all that the health of residents was "adversely affected" by "toxic substances," Bloom defended his action, noting, "[T]here are always areas of causal uncertainty...but there...is also an urgency to prevent harm and protect the health of people." In referring to "areas of causal uncertainty," Dr. Bloom apparently meant "no causal link was found, but only suspected." If one is to interpret this explanation literally, it appears that Dr. Bloom was arguing that even if there is no evidence of a health threat, it is important to assume there is one—just in case—and take punitive action against those charged with "causing" the harm.

But such a definition of causality violates the basic scientific (and epidemiological) requirement that before one can identify cause and effect, one must identify a cause. Eschewing scientific rationale, Bloom apparently believes that mere allegation suffices to assign causation and condemnation—bringing us back to burning "witches." This hardly seems like the type of educational message one would expect to be communicated at an institution of higher learning in the field of public health

Thousands of public health professionals are at this moment saving lives and preventing premature disease following sound scientific protocols, yet the American Public Health Association and Harvard singled out individuals who instead pursued self-serving financial opportunities through litigation. These awards have stirred controversy (a commentary on the Brockovich incident in Science magazine was titled "Toxic Award?") among scientists who fear the negative impact on public health credibility. And well they should. The APHA and Harvard awards to those whose public heath "specialty" was litigation were egregious examples of poor judgment and, just as Heather Mac Donald wrote, an example of the public health field being dominated "by the most radical elements within it." The question is whether this poor judgment was a fluke or part of an ominous trend. It is time for all public health professionals to reflect upon exactly what should be the basis of our activities: lifesaving interventions based on sound, peer-reviewed science—or political activism and agenda-driven activities that do nothing to prevent premature disease and death.

Dr. Elizabeth M. Whelan is president of the American Council on Science and Health (ACSH.org, HealthFactsAndFears.com).

By Walter Olson

(Reprinted from the New York Post, 6-15-06)

A report released Tuesday by the city's Independent Budget Office found that the share of the city bud get devoted to lawsuit outlays doubled from 1990 to 2004. And the whopping $575 million the city spent to settle lawsuits in 2004 is expected to balloon to nearly $800 million by 2010.

The 2004 figure testifies eloquently to the cost of the Litigation Lobby's stranglehold on Albany. It amounts to $71 for every man, woman and child in the city, a sum that gets passed directly into the city's tax burden. (Although trial lawyers like to portray the liability crisis as one of the insurance system rather than of the lawsuit system, New York City happens to be self-insured, so the raw numbers tell the tale.)

Is this just the inevitable cost of running a big city? Well, the 2004 budget for the city of Denver is available online, and it includes a line item for liability claims of - no misprint - $3.9 million, a number that would practically disappear as a rounding error in Gotham's legal budget. That's $7 per resident, about one-tenth the burden New York taxpayers face.

Yes, New York's government does more than Denver's - especially in running hospitals - but much of the tenfold difference per capita remains once you control for such factors. And the $575 million figure doesn't include several huge sources of lawsuit exposure for New York taxpayers - starting with the MTA, with its subways and buses, and the Port Authority, which was a magnet for liability lawsuits even before 9/11. Add them to the count, and you'd vault the figures far higher.

The bigger story here is not just the continued growth in lawsuit outlays. It's that Gotham was already facing a crisis in liability payouts 10 or 15 years ago, and things keep getting worse rather than better, despite the vocal complaints of virtually every mayor.
And also despite some concerted efforts by the city to limit its exposure. Sidewalk slip-fall claims are off sharply, for example, because of a 2003 law backed by Bloomberg that sticks adjacent property owners (as opposed to City Hall) with liability for many slip-falls. Victor Serby, a New York attorney who often represents plaintiffs, says the Health and Hospitals Corp. has acted lately to clean up its chaotic patient recordkeeping, a step that is likely to help the city in its defense of malpractice claims.

Overall, 30 percent of city lawsuit outlays go to medical liability claims, where million-dollar payouts are common. The most important category of these claims by far are cases of infant brain damage, most of which are not avoidable by obstetricians no matter how skillfully they practice, but which (particularly before plaintiff-friendly Bronx and Brooklyn juries) can generate enormous verdicts even when they rest on highly doubtful scientific theories of blame. In fact, the most likely hope for reducing the incidence of these cases is probably improved social conditions (e.g. fewer premature births, less substance abuse by moms), rather than error-free obstetrics.

Attorney Ellen Lombardi, with the city's Law Department, said the state's appeals courts are more willing to uphold high verdicts than formerly. Plus, the city's new push to settle cases early has led to some short-term bulging of outlays.

The city has some highly regarded legal talent, and it's quite possible its strategy is sound. But the overall direction of the numbers is unlikely to improve any time soon.

Why not? Some judges in the city's own back yard are considered deeply unsympathetic to the city as defendant. But the wider reason lies in Albany: New York is one of the very few states that has enacted little or no liability reform worth the name.

And that's exactly the way the immensely successful trial-lawyer lobby - along with its favorite representative, Assembly Speaker Sheldon Silver of Weitz & Luxenberg - aims to keep it.

 

 


Isaac Gorodetski
Project Manager,
Center for Legal Policy at the
Manhattan Institute
igorodetski@manhattan-institute.org

Katherine Lazarski
Press Officer,
Manhattan Institute
klazarski@manhattan-institute.org

Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.