Is Tort Fraud Even Possible

Lester Brickman thinks that doctors who do mass screenings for asbestos should be prosecuted. His theory is that in a mass screening there will be 500-600 positive asbestos tests out of 1000 subjects, while if you looked at a normal numbers in the workforce a screening of one thousand should result in 30-50 positive tests. His theory is that the doctors are inflating the numbers in exchange for money. The justice department hasn't prosecuted the doctors yet, they say because they think they'll be unlikely to get a guilty verdict.

In fact, if the Justice Department didn't think they were reasonably likely to get a guilty verdict, and went along with the prosecution anyway, they would be violating cannons of prosecutorial ethics. The issue is that you'll have a battle of the experts. The prosecution will say that there's no way so many of the tested people could have asbestosis, and the defense would say, that all of the cases were asbestosis or borderline. The jury would then likely find that the government hadn't proven their case beyond a reasonable doubt.

My question, though, is in an adversarial system, where these diagnoses aren't submitted to insurance companies, or medicare, can it really be fraud? The idea is to prove if there really is asbestosis, and if there is to prove who caused it. How can one party trying to prove their case be fraudulent?

Now, if it were fraudulent, and as a result, false claims were made to governmental entities, or other groups which can result in prosecution, then I say go for it, but you still have the problem of dueling experts. In short, I don't think you can prosecute fraud that's wholly contained in the adversarial process.