In 2008, the Department of Labor (DOL) paid for Tony Adams, a 48-year-old coal miner, to have a chest x-ray. His doctor found stage I black lung disease. Yet Adams’ claim for medical benefits was denied. This was because the insurance group that represented his employer hired a different ― more credentialed ― doctor as their medical expert. That doctor said he saw no such evidence. The judge ruled in favor of the mining company on the basis of the latter’s “expertise.”
Before he died 5 years later, at age 53, Adams went through this process again. In fact, he did it four more times. Each time, his doctor found evidence of black lung, but the company’s medical expert did not. He died without receiving benefits. Among the causes of death listed on his autopsy were cardiopulmonary arrest and coal worker’s pneumoconiosis (CWP): black lung.
Since his death in 2013, two judges have awarded Tony’s benefits to his widow, Linda. Both times, the mining company appealed the decision, most recently in December 2020. She’s not giving up. “Two weeks before he died, he told me, ‘I’m going to die of black lung,’ ” Linda recalled. ” ‘But I don’t want you to give up on black lung. There are too many people screwing these miners out of what they deserve.’ “
There has long been suspicion among miners and their advocates that doctors used by coal companies to fight claims like Tony’s are in the pocket of “Big Coal.” At the very least, some say these physicians are swayed by their client’s preference when reading a coal miner’s chest x-ray. A recent study published in the Annals of the American Thoracic Society provides empirical evidence that these doctors’ conflict of interest ― namely, that parties representing coal companies hired them ― appears to influence their medical opinion.
Proof of a “Broken System”
The Annals study examined 63,780 radiograph classifications made by 264 physicians ― all certified as B-readers, a certification by the National Institute for Occupational Safety and Health (NIOSH) for physicians who demonstrate proficiency in classifying radiographs of pneumoconiosis. The results showed that doctors hired by miners identified black lung 49% of the time; those hired by coal companies identified black lung only 15% of the time.
The study also found that B-readers contracted by employers read results differently for different clients. The same doctors were significantly less likely to say a miner’s lungs were negative for CWP when they were hired by the DOL (77.2%) than when they were hired by a coal company or its insurers (90.2%).
The bias does appear to work both ways: B-readers hired by miners and miners’ attorneys were more likely to find evidence of black lung when they worked with plaintiffs. However, a much higher number of doctors appeared to be biased in favor of the companies. “There were 3X more B-readers providing 8X more classifications among those affiliated with employers compared to those affiliated with miners,” the study concluded.
The authors suggest that one reason for this was the difference in pay. Some company-hired doctors made as much as $750 per reading, about 10 times what miner-hired doctors were paid.
“We knew [about the potential bias] from our work over the decades taking care of these guys,” said Bob Cohen, MD, a pulmonologist and the study’s senior author. “But then you see it with P values that are incredibly statistically significant….”
The study finally put numbers to a problem that many working with black lung claims had always assumed. Those within the system are accustomed to seeing names of the same doctors on documents and reports, with little to no overlap between those hired by the defense and the plaintiffs.
“The vast majority of the time, we know what a report will say based on the doctor’s name,” Evan Smith, JD, advocacy director at AppalReD Legal Aid, in Prestonsburg, Kentucky, said. It is far more surprising, he said, when a defense-hired doctor agrees with a miner-hired doctor.
Over the years, Katherine DePonte, MD, a radiologist and B-reader in West Virginia, has often seen an “almost textbook appearance” of CWP, only to later learn that “another radiologist read it as negative.” She explained, “They would use some other term, like ‘old granulomatous disease.’ “
Employer-hired doctors often do acknowledge the same lung damage on the radiograph as miner-hired docs; they simply don’t attribute it to coal dust. Common “alternative diagnoses” include chronic obstructive pulmonary disease or histoplasmosis. “I know a number don’t believe this disease of coal worker pneumoconiosis exists [at all],” DePonte said.
What’s inarguable is that, even as coal mining in Appalachia is on the decline, black lung disease is on the rise. NIOSH now estimates that it affects over 20% of long-term (25+ years) coal workers. That’s the highest prevalence in a quarter of a century.
Smith said that at its most basic level, these doctors’ conflicts of interest “lead to people who have the disease that these benefits are for, having them denied.” People like Tony Adams. Whether the doctors involved are complicit or just conservative, critics say they have become a fixture of a broken system.
Financial Bias or Difference of Opinion?
Broken system or not, evidence suggests that the problem can’t be solely blamed on medical experts. DePonte primarily reads for the DOL and miners. “Not that I necessarily chose that,” she said. “You get pigeonholed.”
Some say that the bias demonstrated by the Annals study is at least partially driven by the litigation process itself. It is an adversarial system. As such, attorneys on both sides are naturally inclined to seek out doctors who will best support their client’s case. Doctors with a legitimately conservative perspective on what constitutes black lung are more sought after by the coal companies’ attorneys.
“It can often be impossible to tell whether the money is driving a change in the behavior or if the behavior is causing them to be sought out,” said Matt McCoy, PhD, a medical ethicist who specializes in conflicts of interest at the University of Pennsylvania.
Although some believe that certain doctors are driven purely by financial incentive and offer a specific reading to secure repeat business, B-readers can end up working exclusively for companies because of other reasons. Wes Addington, JD, an attorney at the Appalachian Citizens’ Law Center, said some doctors appear to have an authentically different ― often antiquated ― view of the disease.
Perhaps the most extreme example is Paul Wheeler, MD, a highly credentialed John Hopkins radiologist who was exposed for false medical testimony in Chris Hamby’s 2013 Pulitzer Prize reporting. In 1500 readings, Wheeler never diagnosed a single case of severe black lung. And yet, Cohen, Addington, Smith, and other experts all agree that Wheeler appeared to wholeheartedly believe that his view of black lung was accurate. That made him a valuable asset to mining companies.
Since Wheeler’s exposure, there has been a greater sense of accountability among B-readers, John Cline, JD, a West Virginia–based attorney who represents miners with federal black lung claims said. “Radiologists were thinking, ‘Somebody could be watching me.’ Even if they thought they were doing this in the shadows, it made people more cautious,” he said.
The data used in the Annals study predates Hamby’s investigation, going back to 2000. Thus, it is possible that, as Cline argues, things may be different now. However, Lee S. Friedman, PhD, an associate professor at the University of Illinois at Chicago, who is the lead author of the study, remains skeptical.
“While the Wheeler case might have dampened some physicians [who were] completely skewing their readings always negative, I think it’s premature or incorrect” to say it resolved the issue, he said. “Did they all change their behavior the morning after? It doesn’t seem likely, given the evidence of financial conflicts of interest and behavior that’s been demonstrated.”
Skewing the Evidence?
Hamby’s 2013 reporting also revealed that even when company-hired doctors did diagnose CWP, law firms were burying those readings. In 2016, the DOL attempted to stop this practice. They made suppression of written evidence illegal – emphasis on written/
Law firms can’t hide positive reports, but they can prevent them. Cohen explained that now, “a doctor on the phone says, ‘I will read this as positive.’ Then the company says, ‘No, thank you,’ we will send you a check.”
This practice was confirmed by Kim Adcock, MD, a retired radiologist and B-reader in Littleton, Colorado, who primarily reads for 26 law firms. Some of his clients want a report no matter how he reads the radiograph. However, some want him to call them first if he’s going to read the radiograph as positive. Adcock said this practice skews the dataset to make company-hired docs appear to read more negatively than they actually do.
Because the dataset used in the study is from the Federal Black Lung Program (FBLP), it only includes readings that made it to court. Adcock said he reads approximately 2000 radiographs a year, although only a few of his readings appeared in the study’s dataset, according to a search by Friedman. This difference is likely because the study only evaluated readings between 2000 and 2013, the year Adcock started B-reading.
“I think it’s important to get a message that, to a certain extent, contravenes this paper. Yes, we should have some reservations about the conclusions,” Adcock explained. “There are people out there attempting to do the best job they could do.”
Law firms shopping for the reading they want and censoring the ones they don’t might alter the FBLP data, but experts say that doesn’t change the underlying problem. “In any case like this, where you’re looking at individuals going up against corporations,” McCoy said, “[corporations] are able to marshal their resources and hire more officials in a way claimants can’t, and that’s a baseline concern here.”
Admitting bias is notoriously difficult; thus, it isn’t surprising that many doctors involved refuse to believe they are influenced by money, incentives, or other biases. DePonte said she’s not swayed by money, nor does she actively take a pro-miner stance. She views herself as more of an advocate for accuracy. However, she did say that it has traditionally been far more difficult for miners to prove their case, a problem that has improved with new regulations in recent years.
In Colorado, Adcock’s approach is to stay as far removed from the litigation process as possible. He said he has limited understanding of how his reports are used or how claims are filed and awarded. He leans heavily on his initial ― almost instantaneous ― impression of a chest x-ray.
DePonte and Adcock were both hired as experts on Tony Adams’ case. In 2008, DePonte read his chest x-ray as positive for early-stage black lung (1/0). Adcock also read two of Adams’ four chest x-rays, one in 2009 and the other in 2013. He read them as negative. When asked about the case, which autopsy confirmed as black lung, Adcock explained that positive histopathology doesn’t mean the radiograph reading was wrong, only that the disease didn’t show on that radiograph. He said his “highest ambition” is to be “an objective finder of fact” and that he trusts the process to work out the truth.
That process didn’t work in time for Tony Adams. Friedman argues that people who provide expert testimony have an ethical responsibility to know how their testimony is being used; to do otherwise, he says, is “willful ignorance.” Still, the Annals study authors, along with Deponte, Cline, and West Virginia attorney Sam Petsonk, say that the process is getting fairer, thanks to new policies developed over the past 5 years by the DOL.
“The DOL has worked very hard to reconcile the final award rate (around 30%) with the incidence of disease in the population (between 20% and 25%),” Petsonk said. Although the study calls into question the integrity of the system and the doctors within it, it’s critical for miners to know that the system is working and that they can get benefits, he explained. Many fear that cynicism about the system drives miners away and causes them to resort to Social Security or long-term disability.
Fixing What’s Broken
The Annals study’s authors propose some solutions to the problems they quantified. The first is a sort of “super panel” that collectively evaluates readings. Although a completely unbiased panel would be nice, such impartiality is likely unsustainable, Smith said. He believes that over time, the panel would become vulnerable to politics and would work in favor of the companies.
Even without a panel, a method to provide greater transparency could be a great start, some suggest. The DOL could make the entire FBLP database public and analyze it annually. The authors also propose a flat fee for readings. Even now, Adcock said he doesn’t make anywhere close to the upper limit of $750 per readings. “My understanding is around $125 is a pretty characteristic fee [for reading a chest x-ray],” he elaborated. “Everyone I’ve had a conversation with is within 25 bucks [of that].”
That said, Adcock is not currently listed among the heavy readers who appear in the data used for the study; it’s possible that his experience is not representative. Some readers who were included in that dataset read more than 10 times the average number of classifications per reader ― the average was 242 classifications ― and read 95% of chest x-rays as negative, according to Friedman. Medscape obtained the names of two doctors whose readings were 95% negative on a high volume of cases. Neither agreed to an interview.
It’s possible that if the dataset had included readings from more recent years, Adcock would have appeared more frequently, given his personal estimates. That’s why the study authors recommend that the DOL conduct this kind of analysis annually in order to get an accurate picture of who is contributing to these cases, in what way, and how often. By doing so, readers who appear biased could be identified and addressed with more regularity, Friedman said.
Even if the rate were more consistent and the data were more frequently analyzed, the very nature of the adversarial system will put any potential solution at risk. “I’m not sure there’s a foolproof system that can be devised that can’t be corrupted in time,” Cline said.
Donavyn Coffey is a freelance journalist who covers health and the environment from her home in the Bluegrass. Her work has appeared in Popular Science, Insider, and SELF.