Thursday, March 30, 2006
That gold attracted some out-and-out crooks--so far 26 people have been charged with submitting fraudulent claims--and a lot of claimants who were pushing the boundaries of legitimacy. By some estimates 70% of the billions paid for the most serious claims went to patients who aren't sick and don't deserve it. That adds up to $6 billion or more in payments that were fraudulent or in error. It may add up to one of the biggest tort scams ever, waged by a cabal of doctors and lawyers plying a tortuous legal system.
...even a lawyer on the claimant side admits to some concern. "There was an intentional effort to game the system," says Michael Fishbein, the court-appointed lead lawyer for the entire class of fen-phen users covered by an early $3.75 billion trust that Wyeth agreed to set up in late 1999. He believes 70% of the most serious claims, for severe damage to heart valves, were "medically unfounded and unjustified because the claimant doesn't have the condition." (Rival lawyers deny it and say his real interest is in a quick resolution so he can collect big fees.) Fishbein says he worries there won't be enough money left to pay the truly sick, but he stops short of alleging out-and-out fraud.
Others are more blunt. "Material misrepresentations" amounting to "pervasive fraud" drove 70% of the serious claims that were found payable by the Wyeth trust fund, says Joseph Kisslo, a court-appointed cardiologist who reviewed a sample of 1,000 echocardiograms in late 2004. "Thousands of people have been defrauded into believing that they have valvular heart disease when in fact they do not," Kisslo said in a report he wrote for the trust. A few months ago he was summoned to the U.S. Attorney in Philadelphia to show how echo machines could be manipulated to produce evidence of apparent heart-valve damage. In January the Justice Department took control of the several hundred thousand echocardiogram tapes held by the trust in Philadelphia.
Soon after the 1999 fen-phen settlement, lawyers and doctors teamed up across the country to set up makeshift "echo mills" in hotel rooms, in an office off a Texas highway and elsewhere to scan thousands of patient cases in search of high-profit payoffs. Some doctors were paid million-dollar sums for cursory reviews; legal staffs, rather than doctors, instructed technicians and recorded medical histories. Often the echocardiograms were taken without the supervision of a board-certified cardiologist, violating the settlement agreement.
"This is another example of how greed can warp the sensibilities of seemingly responsible legal and medical professionals, who then team up to create dubious claims that the lawyers then turn into mass torts," says Peter Zimroth, Wyeth's lead outside attorney and a partner at Arnold & Porter.
The article requires registration, but it's worth it. The story of fen-phen, like the story of asbestos, is a sad accounting (or lack of accounting) of how our legal system works.
And for Wyeth, the injustice is likely to continue:
"You don't have to prove causation. All you have to prove is that you took the drugs and have the qualifying conditions," says Petroff.
Which is why Wyeth and its shareholders have paid so high a price in the fen-phen debacle. Twenty-two billion dollars? For a medical mistake that may have killed several hundred people in a decade and caused 1,205 major surgeries--in a crowd of 6 million patients? And which resulted in no visible symptoms in thousands of patients who nonetheless reaped a payoff?
You bet, says plaintiff lawyer Paul Napoli. Heart-valve disease is progressive and takes years to develop fully, he says, and even Judge Bartle concurs on that point. Napoli says it is likely that thousands of new patients will pop up in coming years, as damage from the drugs finally shows up inside their hearts. Napoli predicts these patients will become "Wyeth's nightmare--a third wave of victims." On Mar. 8 Judge Bartle again refused Napoli's legal motion to scrap the Wyeth trust and settlement. His ambitions could force Wyeth into bankruptcy, at which point it will become another Johns Manville. "And then we can go after all its assets," he says, satisfied. "This won't be over until the last cannon is fired."
And then we'll have one less pharmaceutical company to manufacture our medicines.
I'm all for corporate responsibility. Wyeth should be held responsible for those actually damaged by the drugs, but the actual numbers are so small that they wouldn't likely force them into bankruptcy. It's the corruption of our system that's doing that, to the detriment of us all.
posted by Sydney on 3/30/2006 09:08:00 AM 4 comments
Someday these plaintiff's attorneys will be stricken with some horrible disease - severe athlete's foot, premature baldness, complete "inability to get *it* up" - and there will be no drugs to fix their problems. Poetic justice, I'd say. Unfortunately, the rest of us will be doing without improved treatments for heart disease, cancer, etc, etc. Freakin' scuzzball lawyers...
Get the whole story in "Dispensing With the Truth" by Alicia Mundy.
By 7:34 PM, at
"The story of fen-phen, like the story of asbestos, is a sad accounting (or lack of accounting) of how our legal system works."
By 11:39 PM, at
Michael Fishbein was my attorney while doing Phen-Fen (although I did not know this ubtik years later.)
By 9:39 PM, at