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Black Lung Blues

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The Center for Public Integrity is running a really great series about how coal miners get black lung from decades in the mines and then face a wall of denial of their claims far harder than any coal seam. The second part of the 3-part series came out yesterday, detailing how doctors at Johns Hopkins deny all black lung claims. This is just awful.

Doctors have come and gone from the unit over the years, but the leader and most productive reader for decades has been Dr. Paul Wheeler, 78, a slight man with a full head of gray hair and strong opinions.

In the federal black lung system, cases often boil down to dueling medical experts, and judges rely heavily on doctors’ credentials to resolve disputes.

When it comes to interpreting the chest films that are vital in most cases, Wheeler is the coal companies’ trump card. He has undergraduate and medical degrees from Harvard University, a long history of leadership at Johns Hopkins and an array of presentations and publications to his credit. In many cases, judges have noted Johns Hopkins’ prestige and described Wheeler’s qualifications as “most impressive,” “outstanding” and “superior.” Time and again, judges have deemed him the “best qualified radiologist,” and they have reached conclusions such as, “I defer to Dr. Wheeler’s interpretation because of his superior credentials.”

Yet there is strong evidence that this deference has contributed to unjust denials of miners’ claims, the Center found as part of a yearlong investigation, “Breathless and Burdened.” The Center created a database of doctors’ opinions — none previously existed — scouring thousands of judicial opinions kept by the Labor Department dating to 2000 and logging every available X-ray reading by Wheeler. The Center recorded key information about these cases, analyzed Wheeler’s reports and testimony, consulted medical literature and interviewed leading doctors. The findings are stark:

In the more than 1,500 cases decided since 2000 in which Wheeler read at least one X-ray, he never once found the severe form of the disease, complicated coal workers’ pneumoconiosis. Other doctors looking at the same X-rays found this advanced stage of the disease in 390 of these cases.
Since 2000, miners have lost more than 800 cases after doctors saw black lung on an X-ray but Wheeler read the film as negative. This includes 160 cases in which doctors found the complicated form of the disease. When Wheeler weighed in, miners lost nearly 70 percent of the time before administrative law judges. The Labor Department does not have statistics on miners’ win percentage in all cases at this stage for comparison purposes.
Where other doctors saw black lung, Wheeler often saw evidence of another disease, most commonly tuberculosis or histoplasmosis — an illness caused by a fungus in bird and bat droppings. This was particularly true in cases involving the most serious form of the disease. In two-thirds of cases in which other doctors found complicated black lung, Wheeler attributed the masses in miners’ lungs to TB, the fungal infection or a similar disease.
The criteria Wheeler applies when reading X-rays are at odds with positions taken by government research agencies, textbooks, peer-reviewed scientific literature and the opinions of many doctors who specialize in detecting the disease, including the chair of the American College of Radiology’s task force on black lung.
Biopsies or autopsies repeatedly have proven Wheeler wrong. Though Wheeler suggests miners undergo biopsies — surgical procedures to remove a piece of the lung for examination — to prove their cases, such evidence is not required by law, is not considered necessary in most cases and can be medically risky. Still, in more than 100 cases decided since 2000 in which Wheeler offered negative readings, biopsies or autopsies provided undisputed evidence of black lung.

It’s not clear why this one doctor has dedicated himself to denying black lung claims, but this is a person who has committed a great evil in the world. Despite his self-serving rhetoric about his ethics, he has done nothing but deny relatively small amounts of money to very sick people. Workers have no recourse once the experts at Johns Hopkins led by Wheeler deny their claims. They work for decades. They die in misery. Wheeler is a big reason why.

Seriously, read the whole thing. This is how the system defeats working class people’s attempts at a dignified life. Very powerful stuff.

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  • Jesus this is just awful. Horrific. Talk about the banality of evil? This is a textbook example of it. I can’t think of anything worse–even a serial killer does less harm.

  • Epicurus

    What is up with Hopkins? First Ben Carson, now this idiot? I begin to question the hiring practices as this august institution of higher learning. But then…John Yoo is teaching at Stanford and Alan Dershowitz is seemingly invulnerable to criticism.

    • I’m blaming Harvard given the Ted Cruz plot point. However JH has always been rather…southern in its racism and its corporate shill-ism, hasn’t it?

    • Amanda in the South Bay

      There’s an awful lot of transphobic history there as well.

    • rea

      There is a very brillant professor of bioethics and former blogger at Johns Hopkins–it’s a shame that great institution has to deal with stuff like this.

      • rea

        I’ll add, she uses a pseudonym, but her real identity is sufficiently well-known that it’s in her wikipedia entry, so I don’t feel I’m transgressing.
        Anyway, the Johns Hopkins faculty isn’t entirely evil.

    • DrS

      Yoo is at UC Berkeley, not Stanford.

    • Hogan

      John Yoo is teaching at Stanford

      Berkeley, ackshelly.

      • Linnaeus

        I know my UC alumni friends would much rather have him at Stanford.

    • DrDick

      I suspect he plays golf with the mine owners or managers.

      • Bartleby

        Poker could be a possibility, too.

    • drkrick

      Given that his findings have so often been contradicted by biopsies, why do they still get treated with so much deference. Isn’t attacking the credibility of expert witnesses a routine part of the process, and wouldn’t this record be extremely vulnerable?

      • I presume that because there is no controlling authority any given lawyer wouldn’t necessarily know about the autopsy findings for other cases so they wouldn’t have the information on hand to impeach his testimony.

        • rea

          Courts are often slow to allow discovery about an expert’s opinions in other cases.

          • Really? Depends on your venue, I guess. I find that experts are implausibly forgetful about those opinions, but it’s pretty sweet when you can go “all right, Dr. Hack, but didn’t you opine the exact opposite, on materially identical facts …?” Judges like to hear that kind of thing, when you’ve really got the goods.

  • Pretty bad. I’ve defended a couple of silicosis cases, one of which was an extremely dubious one for the plaintiff, but this J.H. guy’s stats are just ridiculous. I wouldn’t believe a defense expert who found 1% black lung any more than a plaintiff’s expert who found 99% black lung.

    • mpowell

      The amazing thing is that judges that have ignored his input based on this pretty reasonable observation have had their decisions overturned.

      • Yep. In my state, at least, the trial court gets a LOT of discretion on making a call like that.

        I wonder how many of those appellate reversals were in the bought-and-paid-for W. Va. court?

        • dp

          It’s a federal administrative process, I think.

    • Marek

      Is it possible that he wasn’t cross-examined on this point? Seems like an obvious question.

      • njorl

        I don’t think it would be that effective. It could be argued that he is only called in when a company believes the plaintiff is faking, that most cases never get to him.

        A much better argument would be his previous poor record when compared to biopsies and autopsies. It’s phenomenal coincidence that so many miners are cured of TB and fungal infections then die from black lung after he examines them.

        • Marek

          If he answered honestly, which I doubt he would, I think it would be pretty damning that he had never testified to finding black lung in that many cases. In the absence of having his record available, I still think it’s a question worth asking.

  • Warren Terra

    It’s like the old song goes: nice work if you can get it, and you can get it if you lie.

    … less flippantly, it seems like this guy should be decertified; it seems possible that lawyers who’ve knowingly employed him should be sanctioned. Getting a sympathetic expert is one thing, casting doubt is normal – but an “expert” who never diagnoses the condition, even in cases where others do and that are later confirmed by autopsy, is so obviously lying or unsuitable that there should be consequences.

    • it seems possible that lawyers who’ve knowingly employed him should be sanctioned

      Um, what? Because lawyers are now the appropriate judges of medical expertise?

      Should lawyers who employ expert M.D.’s who find black lung in hundreds of cases where it *doesn’t* exist, get sanctioned as well? Because that would be very bad news for the plaintiffs’ bar.

      • Warren Terra

        Well, if they knowingly employ an “expert” who they know is a fraud and a liar, isn’t that cause for sanctions? And doesn’t calling Wheeler, who has detected signs consistent with severe black lung in 0/1500 cases over the last dozen years amount to knowingly employing a fraud and a liar?

        • Katya

          But no one had the stats on his diagnosis rate until CPI calculated them. An attorney might know that Wheeler is a good witness for the defense without knowing that he misdiagnoses plaintiffs.

          • There are variables. I can think of lawyers who, if you told me an expert had found 100% of their clients’ claims of asbestosis to be bunk, I would have no trouble believing it, because those lawyers are bottom-feeders (i.e., they take the claims that more responsible attorneys decline to pursue).

            So I would want to know something about these cases and about the doctors who were finding contrary results.

            But Wheeler’s comments provide enough rope to hang him. I would hope he’ll have a hard time getting qualified as an expert after this.

            • mpowell

              Apparently he has been going through certification regularly for years. And during certification he consistently identifies the required x-rays as demonstrating the presence of black lung. And then refuses to apply the same standard in his practice. It seems to me there should be stronger discipline than simply disqualification for that kind of thing. That’s active malice and an attempt to undermine the intended policy.

              • I think the medical profession would have to take responsibility there; the courts are pretty much confined to refusing to qualify him as an expert.

                Which can then snowball: “Dr. Wheeler, isn’t it true that the Podunk County Court held that your opinions were so biased that you aren’t a reliable expert?” Pretty soon, no one is paying Dr. Wheeler to testify for them.

              • Warren Terra

                This suggests one obvious and desirable (if moderately expensive/problematic) solution: when possible, the expert witnesses’ examinations of the evidence should be double-blinded. Instead of giving them the plaintiff’s autoradiograms, give them the autoradiograms of a half-dozen people. One is the plaintiff, at least one (but not consistently only one) is clearly affected, at least one is unaffected and healthy, and a couple chosen at random. The expert has to submit their testimony to the court before they can be told which sample is the plaintiff’s.

                • Cool idea. Here’s another: the parties don’t hire the expert witness at all. The court should hire them from a fund and they should not be beholden to either party.

      • DocAmazing

        If lawyers brought evidence that Dr. Wheeler read the same films differently to the credentialling authorities at Hopkins, he couild lose his privileges. That’s a good place to start.

        • Linnaeus

          Would that create a legal impediment to Wheeler’s ability to serve as an expert witness, or is it more of a reputation thing, i.e., no one’s going to want a witness with the taint of lost privileges?

      • Barry

        “Um, what? Because lawyers are now the appropriate judges of medical expertise?”

        Read the f*cking comment you were replying to.

  • Origami Isopod

    JFC, does this story infuriate me. “Doctor” Paul Wheeler is right up there with Andrew Wakefield.

    • drkrick

      A very apt comparison.

  • dp

    This is horrible. Perhaps this will empower the ALJ’s and the appeals boards to throw out this guy’s opinions. He certainly doesn’t sound like he could withstand a Daubert challenge given his unwillingness to follow accepted methodologies.

  • Jeezlebub, he’s like the Dr. Death of Black Lung cases.

  • mds

    Workers have no recourse once the experts at Johns Hopkins led by Wheeler deny their claims. They work for decades. They die in misery. Wheeler is a big reason why.

    God damn that Obama and his war on coal. We need someone in the White House who will work to eliminate even the possibility of such lawsuits, so that this Wheeler character is no longer involved.

  • Sargasso Sink

    This is outrageous, but to me it’s not really much more shocking than most expert witnesses — many successful expert witness are well known for selling their opinion; after all, the expert is naturally incentivized to give their customer (the lawyer) what they want. Some experts are defense witnesses, some are plaintiffs’ witnesses. As is frequently the case, defense pays better: http://www.publicintegrity.org/2013/10/30/13641/consulting-fees-black-lung-cases-flow-directly-johns-hopkins

    The solution? Courts should appoint special masters (experts hired by the court, instead of the lawyers, who don’t have an incentive to satisfy a lawyer that hired them). But most lawyers don’t want an objective actual expert deciding the case based on science — they are comfortable with the “dueling expert” system they were brought up in. Plus, it is much easier for a court to just arbitrarily decide which expert they will believe, as opposed to managing the dispute between the lawyers over which expert the court is going to hire.

    • Sargasso Sink

      Although certainly the normal problems with the adversarial expert system are exacerbated by the administrative setting that the Black Lung determinations are made in, and the attendant lower awards in that system.

      While of course Dr. Wheeler is not ethical, clearly his is not a very savvy expert either, as the extreme degree to which his opinion was for sale has caused some ALJs to expressly determine that he is a hack; which can shorten the length of your career. ‘Course, he’s made plenty of money off this already.

  • Theophrastus Bombastus von Hoenhenheim den Sidste

    Assholes like Wheeler make me ashamed to be a Harvard man.

    I shall snub him at our next reunion.

  • Manta

    The doctor could act in good faith (i.e., having a hobby horse/pet theory): what is wrong is the system, that allows each side to pick his favorite expert, because if you look around hard enough you can find an expert having almost any opinion you like.

  • Lee Rudolph

    New development.

    BALTIMORE — Johns Hopkins Medicine says it has suspended a service in which radiologists give second readings on X-rays of coal miners seeking benefits for black lung disease.

    Hopkins announced the suspension Friday. The medical institution had provided the service for a federal agency for 40 years.

    The suspension comes after a report this week by ABC News and the Center for Public Integrity questioning Hopkins’ interpretations of X-rays.

    Hopkins said in a statement that it was conducting a review as a result of the report and that the program would be suspended until the review is completed. […]

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