A New Super Weapon In Health Injury Cases?

A new application of DNA testing, already used in a number of workers' health injury cases, has the potential to save insurers billions of dollars in defense costs, a scientist who pioneered the process said.

Dr. Bruce S. Gillis, chief executive officer of the Cytokine Institute in Los Angeles, said the trademarked technology--called "msds1" (otherwise known as Cytokine testing)--can ascertain if a person has had an injurious exposure to virtually any chemical or toxin and whether they experience pain from an injury.

The process has already been applied to two dozen workers' compensation cases in California, resulting in one settlement that the defense attorney on the case says has easily saved the insurer involved $1 million.

"It's an extraordinary advance in forensic medicine," said Neal Jardine, of the Zurawsky Jardine and Houston law firm in Los Angeles, who has employed the testing in cases on which he has worked.

Dr. Gillis--who has a medical degree along with an advanced degree with toxicology--said not all his interactions with lawyers have been harmonious. He mentioned that one attorney doing defense work for an insurer questioned him about using the technology to screen asbestos claims.

When Dr. Gillis explained the certainty of his results, he said the lawyer quickly concluded their talks after remarking the test "could eliminate thousands of claims for us [attorneys]. That's going to kill us."

So far, Dr. Gillis said he has had difficulty alerting insurers to the potential value of his process because, "I'm a scientist. I don't know what doors to knock on."

He has published peer-reviewed papers in several journals, and yesterday presented to the International Congress of Toxicology in Montreal.

According to his company, an individual test--which costs $6,250--can tell with 99.9 percent certainty if a person has been affected by a toxin after analyses that are performed by the University of Illinois College of Medicine in Chicago.

Dr. Gillis said he expects the cost will fall rapidly as demand increases, and that plans are in the work to add the Harvard University School of Public Health to do analyses.

The scientist said that the DNA test matches he performs on cells to measure a specific chemical impact meet more stringent criteria than the FBI-mandated level of 13 DNA parameters for criminal cases. "I can give you 22,000 parameters to tell if a chemical harmed you or not," he said.

Mr. Jardine said that in one workers' comp case, which is in continuing litigation, the testing has already saved his client "easily over $1 million" by eliminating the claimant's assertion his cancer was the result of exposure to benzene in the workplace.

The lawyer said that in another case the test was used on a visiting nurse who claimed an injury had left her with intractable pain that prevented her from doing any work.

Mr. Jardine explained that the Cytokine/DNA test will reveal an inflammatory reaction in cells, which is caused by pain. The analysis showed the claimed pain did not exist because there were no levels of inflammatory response, saving the carrier involved "several hundreds of thousands of dollars without question."

He said that in addition to quickly disposing of unsupportable claims, the test can benefit insurers by validating others, because in those instances carriers can immediately establish a reserve and make it a medical-only file. "It's vastly cheaper than a litigated or denied claim," he said.

The test, he said, "is underutilized, which is a shame."

At this point, even industry experts such as Robert P. Hartwig, president of the Insurance Information Institute, are not familiar with the test and all its aspects.

Mr. Hartwig said he would have to know more about it, suggesting the test might not provide a definitive answer in all cases because, for example, many people have worked for several different companies that may have exposed them to asbestos.

He suggested that the Cytokine/DNA analysis might possibly be applied in the case of those claiming harm from tobacco products. Also, he thought it might be challenged in court for offering false positives.

Mr. Jardine said that like any other evidence or tests, the Cytokine analysis might be challenged over how carefully it was performed.

Lawyers, he said, might question whether a sample was corrupted due to handling, the qualifications of those doing the testing, the accuracy of the calibration and reporting, whether the test was in proper ranges, and whether re-testing was done to ascertain accuracy.