Asbestos Lung Disease - A Primer for Patients, Physicians and Lawyers - part 2 Lawrence Martin, M.D., FACP, FCCP A NOTE FROM THE AUTHOR:
I am a pulmonary physician with experience in diagnosing asbestosis and other asbestos-related lung diseases. Because most cases of alleged asbestos lung disease end up as legal claims, I also have experience working with lawyers involved in asbestos litigation. While the majority of my legal work has been in defense of companies sued by workers, I have also been on the side of patients making asbestos-related claims. This web site has been created without help (financial or otherwise) from any attorneys or attorney advocates, and the views expressed are my own. To illustrate both valid and invalid asbestos claims, I have included several cases evaluated over the years. This Primer is written in lay language so as to reach the widest possible audience. Many web links are included and, for some topics, medical references for those who wish to research the topics further. Plaintiff's lawyers may take umbrage at some of my comments, mistaking my answers as "pro-industry." However, I am neither "pro-industry" nor "pro-plaintiff." I offer this Asbestos Primer with only one bias -- on the side of consistency and rationality in diagnosis, and toward expediting the thousands of extant asbestos claims. (A plea for objectivity in analysis of occupational cases can also be found in my on-line paper Pitfalls in Diagnosis of Occupational Lung Disease For Purposes of Compensation -- One Physician's Perspective.)
What are the principal disputes in asbestos-related claims? In this context, "claim" means that an individual or his estate: - is claiming he was exposed to asbestos, and
- has (or had if deceased) a condition or disease arising from such exposure, and
- is demanding another party pay him (or his estate) money for the disease or condition.
The demand could be against a company, a state worker's compensation board or a bankruptcy court. Most asbestos claims are disputed because of disagreement over one or more of the following: - the claimant's asbestos exposure history
- the responsible company or companies
- the diagnosis
The first and second disputes don't involves physicians, since they are based on employment records, job descriptions, co-worker affidavits, plant documents, previous court documents, etc. The third dispute always involves physicians, one way or another, because lawyers need physicians to read the chest x-rays and state the medical diagnosis.
What are the specific reasons for most asbestos litigation? Since there is no specific treatment for asbestos-related disorders, disagreements about diagnosis would be only "academic" if there were no legal claims. However, since most asbestos diagnoses are linked to monetary claims at some point, dispute is inevitable. Here are the most common specific reasons for asbestos litigation. - For many years the hazards of asbestos were known by companies involved in its mining and manufacture, but proper safeguards were not taken to protect workers. For this reason any worker who later develops an asbestos-related condition can make a claim against the miner/manufacturer. In other words, the worker can claim that he was exposed unnecessarily to an unsafe product, and that the product caused disease.
- Asbestos-related conditions have a long latency period, often two decades or more after first exposure before a condition becomes manifest. Because many companies once in the asbestos business have merged or gone out of business, it is often difficult to even identify the responsible company years later, when a claim is filed. Company X may be sued, but argue that it was really company Y that supplied the asbestos 30 years earlier. Or, several companies may have supplied the asbestos, and end up litigating over who supplied what proportion for which factory process.
- Even when the responsible company is known, the worker still must prove he was exposed to friable asbestos in the workplace, and in sufficient amount to have caused the condition. Yet job descriptions are often sketchy or non-existent decades later. Many times the claimant is deceased, and the lawsuit is brought by the widow or the estate; in those situations co-worker affidavits are often used to establish work place exposure for the deceased. Understandably, companies often dispute the exposure history.
Since World War II many people have worked in factories where asbestos was present, but it was not necessarily friable asbestos. For example many plants had, and continue to have, pipes covered with asbestos but wrapped so that no friable asbestos is released. If the worker's job was to cut, repair and replace these pipes all day long, chances are good he would be exposed to much friable asbestos during his career. Now suppose another worker drove a tow motor in the same plant and was never exposed to the pipes except in their intact state. Any lung condition that the first worker developed would have to be closely examined for an asbestos cause. Any lung condition that the second worker developed would be unlikely related to asbestos. The fact is, in many cases we don't know exactly what, or to what extent, workers were exposed to decades ago. In places like Canada and Montana, where there are asbestos mines, exposure history is often more apparent than in most American factories. - Lung cancer is almost always due to smoking, and virtually every ex-asbestos worker with lung cancer is a smoker or ex-smoker. All experts believe that asbestos is contributory when there is definite asbestos scarring (asbestosis) along with the lung cancer. Many researches feel that one must demonstrate radiologic or histologic (on lung tissue) asbestosis to link asbestos exposure as a cause of lung cancer (the Browne Hypothesis). Understandably, other researchers disagree, and this point is often the subject of debate - and a reason for litigation - in lung cancer claims.
- Even granted that a patient's lung cancer was due to both asbestos and smoking, different courts treat this information differently. Some award maximum damages if asbestos was any percentage of the cause; others only award compensation based on the percentage attributed to asbestos, a percentage which is subject to wide interpretation.
- Pleural plaques are almost never associated with any physical impairment. Controversy arises over whether they are associated with increased risk of developing lung cancer. (See next two questions).
- Mesolthelioma is invariably linked to asbestos if exposure can be documented. When cause and effect is so clearly established, attorneys for patients usually seek jury trial to maximize the award.
- The American Thoracic Society formulated standard criteria for the diagnosis of asbestosis, which were published in the mid 1980s. However, many physicians feel they are too restrictive and will argue a more liberal diagnosis in court.
- Claims based only on the chest x-ray are the most common type of claim today. Since these cases were solicited by plaintiff's attorneys from union rolls, the sued companies often hire their own physicians to examine the claimants. The companies' experts often disagree with physicians hired by plaintiff's attorneys.
Why is There Controversy over Diagnosis of Pleural Plaques? Pleural plaques from inhaled asbestos are relatively common (compared to other asbestos-related conditions), and are benign. In one study of asbestos- exposed factory workers who had pleural plaques, the size of the plaques averaged 47.9 sq. cm, or 2.4% of the typical pleural surface of 2000 sq. cm. Interestingly, the size of the plaques was not related to asbestos exposure intensity. Also, the lung function of workers with pleural plaques was the same as a comparable group of workers with no plaques or history of asbestos exposure (Van Cleemput 2001). Though a marker of remote asbestos exposure, plaques are sometimes difficult to diagnose on a plain chest x-ray because other shadows (particularly overlying body fat) may confuse the picture (Muller 1993). This is particularly true if the plaques are not calcified. While a chest CT scan can usually separate out pleural plaques from other shadows, CT scans are not routinely done in most asbestos claimants. Most claims filed for pleural plaques are based on the chest x-ray alone, resulting in much interpretive controversy. Though a marker of remote References for this question
Do Pleural Plaques Lead to Cancer? The only way to answer a question like this one is by population studies, i.e., identifying a group with and without pleural plaques, and then following each group for a long period of time. However, since lung cancer is almost always due to smoking, and since most asbestos-exposed workers have a smoking history, the two groups must be carefully controlled for smoking as well as other variables like how the initial chest x-ray was interpreted (see above question), the subjects' age, and any associated lung conditions. Published studies show either no relationship between plaques and cancer, or suggest a slight statistical association. Not unexpectedly, experts can select studies to support both sides of the issue. In one population study suggesting a relationship between pleural plaques and cancer, Hillerdal wrote (1994): "From the general population in the county of Uppsala, Sweden, 1,596 men with pleural plaques fulfilling strict radiologic criteria were identified from 1963 until June 1985. The men have been followed prospectively for 16,369 person-years...The risk for patients with pleural plaques without asbestosis was increased 1.4 times, which was statistically significant." An opposing editorial in the same journal (Smith 1994) was highly skeptical of Hillerdal's findings, as well as other studies on the subject. Smith pointed out the difficulty of quantitating asbestos exposure and true smoking histories, and of even confirming pleural plaques on the chest x-ray. After providing numerous citations and cogent arguments against Hillerdal's findings, Smith wrote: "The study of Hillerdal does not demonstrate a significant enough increase in risk to overcome the experimental limitations in his study. This study is just another study that has failed to demonstrate convincing evidence of a significant risk of lung cancer associated with pleural plaques without asbestosis." References for this question
What is the Browne Hypothesis? In 1986 Dr. K. Browne published a paper in the British Journal of Industrial Medicine titled: Is asbestos or asbestosis the cause of the increased risk of lung cancer in asbestos workers? Dr. Browne's basic conclusion was that asbestos per se may not be completely carcinogenic:
"neoplastic change [cancer] may appear only in the wake of inflammation and subsequent fibrosis...it is not asbestos per se but asbestosis which prepares the soil for subsequent malignancy." This assessment was based on epidemiologic and biological evidence that lung cancer in asbestos exposed workers was due to asbestosis and not to asbestos exposure per se. This hypothesis, to put it mildly, is hotly debated. The implications are obvious. If Browne's hypothesis is accepted, then simply being exposed to asbestos is not enough to implicate asbestos as a cause of cancer; the history of smoking (almost always present in lung cancer patients claiming an asbestos cause) should be sufficient to explain the cancer. If Browne's hypothesis is not accepted - if the worker has no evidence of an asbestos-related disease, but merely the history of exposure - then asbestos could be claimed as a co-contributor to lung cancer, along with cigarettes. Since 1986 dozens of articles have appeared favoring or disputing the Browne Hypothesis. The issue was put into perspective by a review in the British medical journal Thorax (Jones 1996). After surveying the literature the authors wrote: "Asbestos is the most studied of all occupational carcinogens and, apart from tobacco, the most studied cause of lung cancer. It may therefore surprise the general reader that there is an important area of uncertainty about the relationship between inhaled asbestos and the resulting increase in risk of lung cancer. At issue is whether asbestos-attributable lung cancers are always associated with asbestos-induced lung fibrosis -- that is, asbestosis. This uncertainty has engendered a heated controversy, fuelled by important implications for regulation, workers' compensation, and litigation." (Page S9) Jones, et. al. summarized their assessment of the issues as follows (page S14). "Lung fibrosis of many causes - known and unknown - is associated with increased risk of lung cancer. The much discussed synergism between asbestos "exposure" and smoking found in mortality studies of insulation workers turns out to be a synergism involving asbestosis, not just asbestos exposure. The site of origin and cell type of a lung cancer are not regarded as reliable indicators of causation (or non-causation) by asbestos. In asbestos inhalation experiments animals develop excess lung tumours only when lung fibrosis is also produced. Pleural plaques have not proved to be a reliable marker for increased risk of lung cancer. Excess lung cancer deaths in populations exposed to asbestos are generally first detected at about the same cumulative exposure levels as those at which asbestosis begins to appear." In 1999 Dr. William Weiss reviewed 39 English language reports of cohorts exposed to asbestos in an attempt to address this question. In his paper, Asbestosis: A Marker for the Increased Risk of Lung Cancer Among Workers Exposed to Asbestos, Weiss wrote: "The adequately designed studies in the literature support [the Browne] hypothesis. The summary relative risk for lung cancer was 1.00 in seven cohorts with no deaths from asbestosis. In addition, there is a high correlation between asbestosis rates and lung cancer rates in 38 cohorts in contrast to a poor correlation between cumulative exposure data and lung cancer relative risks in eight cohorts with adequate data. The evidence indicates that asbestosis is a much better predictor of excess lung cancer risk than measures of exposure and serves as a marker for attributable cases." Recognizing the controversy involved, the editors invited an editorial response to Dr. Weiss's paper, in which other physicians wrote: "Asbestosis is an indicator of high exposure and contributes additional risk to lung cancer beyond that conferred by sufficient asbestos exposure alone. In our opinion, the hypothesis that the excess lung cancer risk in worker cohorts exposed to asbestos occurs only among those with asbestosis is insufficient to explain this heightened risk of carcinogenicity." Even accepting the Browne Hypothesis, the problem still arises as to how one defines and diagnoses asbestosis. As already pointed out, physicians hired by plaintiff attorneys are much more liberal in their definitions than are most other physicians.
References for this question
What are the standard criteria for diagnosing asbestosis? In the mid 1980s the American Thoracic Society helped formulate criteria for diagnosing asbestosis. In the ATS medical journal a group of experts proposed the following criteria for diagnosing asbestosis (Murphy 1986; here paraphrased). - A definite history of exposure to friable asbestos
- A definitely, unequivocally abnormal chest x-ray showing changes typical of asbestosis
- A definitely abnormal breathing test, showing a certain degree of impairment that could be due to asbestos inhalation.
- Findings on physical exam of the lungs compatible with the diagnosis, and not due to some other condition.
Physicians adhering to these criteria would obviously not diagnose asbestosis in patients with only subtle shadows on chest x-ray, or with normal lung function tests, or with another diagnosis (e.g., congestive heart failure) to explain any abnormalities. The authors of the ATS article recognized that true asbestosis is a serious disease, for which there is no effective treatment. Patients are short of breath, at least on exertion. They have abnormal chest x-rays. They have abnormal breathing tests. The authors specifically chose not let the diagnosis encompass 'healthy' people with equivocal chest x-rays. Understandably, attorneys for claimants (and their experts) do not agree with this definition. They opine that the disease must be recognized early, before there are symptoms and before the x-ray is unequivocally abnormal. However, this position opens up a pandora's box of extreme bias in chest x-ray interpretation, as discussed above. At present many physicians won't certify a diagnosis of asbestosis unless the findings meet the strict ATS criteria. However, other physicians will argue just as strongly for their own personal criteria for diagnosing asbestosis. The result, of course, is not only medical controversy, but another (and major) reason for litigation.
References for this question
What are the Helsinki Criteria? In January 1997 a group of experts met in Helsinki, Finland to "discuss disorders of the lung and pleura in association with asbestos and to agree upon state-of-the-art-criteria for their diagnosis and attribution with respect to asbestosis." Their report, nicknamed The Helsinki Criteria, was published in a Scandinavian medical journal (see References). Prior to the Helsinki Criteria the only published consensus report about clinical diagnosis of asbestos diseases was the American Thoracic Society article published in 1986 (see above). Unfortunately, the Helsinki report does not refer to the ATS article; also, it does not offer any new research or even any references to earlier research or opinion. For these reasons the Helsinki report does not replace the 1986 ATS report, and is at best an editorial comment by a group of international experts. Principal points raised in the Helsinki Criteria article include: - Reliable work histories provide the most practical and useful measures of occupational asbestos exposure;
- High resolution CT scan can facilitate detection of asbestosis and asbestos-related pleural abnormalities, but is not recommended as a screening tool;
- New imaging techniques (MRI, gallium scanning, PET scanning) are not recommended for clinical diagnosis;
- Radiologic findings of small opacities, ILO grade 1/0, "are usually regarded as an early stage of asbestosis." (A score of "1/0" means the first impression is there is some scarring (1)/but a second impression is that the film may also be negative, that is, show no scarring (0).)
This last point is in contrast to the ATS report, which opined that the threshold of diagnosis should be a radiologic score of 1/1 (both the first and second impression is that there is some scarring on the chest x-ray). However, the Helsinki report also states that "Smoking effects should be considered in the evaluation of early asbestosis." This is a very important point often overlooked by people interpreting chest x-rays of known asbestos claimants.
References for this question
How are claims based only on the chest x-ray? To understand this situation, you must first understand that medical diagnosis of many conditions is often imprecise, or is based on imprecise tools. Asbestosis is defined as lung tissue scarring from inhaled asbestos. Pleural plaques/fibrosis is scarring of the lining of the lungs. These definitions seem straight forward, but how do we actually diagnose this scarring? As already pointed out, direct examination of lung tissue for evidence of asbestos scarring (lung biopsy and/or autopsy) is rarely performed. Instead, the vast majority of cases are diagnosed by "shadows" seen on the ordinary chest x-ray or chest CT scan (performed much less commonly than the chest x-ray). In this sense the diagnosis is usually inferential. Inferential diagnosis is accepted when you have a classic presentation - unequivocal exposure history, unequivocal chest x-ray. But the vast majority of the unequivocal patients were long ago diagnosed and compensated. What is left now are tens of thousands of workers and ex-workers whose exposure history and chest x-ray are far from unequivocal. Their cases are, in fact, very equivocal. And when you start with equivocal abnormalities on a chest x-ray, you are entering the realm of subjective interpretation, of inherent biases, of one doctor's opinion vs. another's (it is only physicians who are trained to interpret chest x-rays). For this reason, in most current claims there is often significant disagreement over chest x-ray interpretation and, ultimately, diagnosis. Years ago the U.S. Department of Labor set up a special program to train physicians to read chest x-rays of workers (principally coal miners) exposed to coal and silica dust. (Coal miners can develop a disease from inhaled coal and silica dust known as "black lung".) The goal of the training program was to bring some standards to the reading of these workers' chest x-rays, and to identify the workers with early dust disease. Because these physicians passed 'Part B' of DOL's training course, they are collectively known as 'B-Readers.' Now it turns out that coal, silica and asbestos dust can give similar appearances on the chest x-ray. For this reason B-Readers are usually called upon to read the chest x-rays of asbestos workers. It is now practically a legal requirement that any asbestos claim (based on chest x-ray) be certified by a B-reader. Yet studies have shown that B-Readers as a group display enormous variation in chest x-ray interpretation. The problem is manifest most acutely in the thousands of claims that started with screening chest x-rays. In this situation there are no real patients, no pre-existing diagnoses in people who worked around asbestos; instead, there are attorneys looking for claimants. In the 1980s and early 1990s plaintiff's attorneys visited unions of many plants known to have used asbestos in the past. Working from union rolls, the attorneys then offered free screening chest x-rays to tens of thousands of factory workers and ex-workers with one goal in mind -- to look for asbestos-related disease in order to file mass claims. (For a succinct history of asbestos litigation, see Asbestos Litigation 101 and USG Corporation - Background Information on Asbestos.) The plaintiff attorneys have justified this solicitation as an important service to the workers, since previously-unrecognized asbestos disease could be a precursor to crippling disease later on. Since a chest x-ray is harmless, and there is no up front cost to the workers, most of them signed up for the program (in many cases a breathing test was also done). The attorneys then sent the chest x-rays to B-Reader physicians hired specifically to interpret them. These B-Readers - who never saw the workers and had no direct knowledge about their asbestos exposure or medical history -- read the chest x-rays looking for asbestos-related disease. In fact, physicians hired by the attorneys are paid extra to find asbestos disease, and in some cases a particular chest x-ray will be shopped around to other B-readers until the attorney gets the reading desired (small opacity profusion of 1/0 or greater, or evidence for pleural plaques/thickening). (See Egilman D. Asbestos screenings. Amer J Indust Med 2002;42:163). Physicians reading the x-rays send their reports directly to the attorneys. When their reports indicated the possibility of asbestos disease, a lawsuit was filed on behalf of the worker against all the known asbestos suppliers of the worker's plant. Subsequent analysis of these cases -- on an individual basis, by other physicians -- shows that these attorney-generated chest x-rays were (and are) often over interpreted for asbestos-related disease. Smokers, in particular, can have subtle "opacities" on chest x-ray that are often mis-interpreted as due to asbestos disease. Such mis-interpretation can be shown with a high resolution CT scan. Also, many other diseases can manifest x-ray changes similar to asbestos-related disease; without proper investigation these cases are erroneously assumed to be asbestos-related. Remember, physicians hired to read these thousands of chest x-rays know nothing about the workers' medical histories.
References for this question
What results from claims based only on the chest x-ray? There are so many attorney-generated cases filed in the U.S. that no one judge or court system has a handle on them all. There is currently a huge backlog of claims. Each worker may file claims against a dozen or more asbestos suppliers; the settling of a claim by one supplier does not eliminate outstanding claims against other suppliers. For companies that choose to defend themselves, it is expensive just to prove a worker doesn't have asbestos disease; proof involves hiring experts to examine the worker, obtain and interpret a new chest x-ray, file a report, etc. Even though the vast majority of these claimants have no evidence for asbestos-related disease by objective criteria, it is usually cheaper to 'pay up' than to fight each case in court. As stated on USG Corporations's Web Site, "Many defendant companies have tens of thousands of cases filed against them by people who are not sick - those cases can usually be settled out of court for only a couple of thousand dollars per claim. To challenge each of these cases in court would cost many times more than the settlement cost." Some workers are found with real disease, but not many. This is because most patients with real disease will have seen a physician, already had a chest x-ray, and if something was found filed a claim. Screening has uncovered a small percentage of abnormal chest x-rays which do reflect remote asbestos inhalation. But because these cases are lumped together with all the bogus claims, patients with undisputed disease (such as mesothelioma) tend to get short shrift, as some funds to pay their claims are apportioned for claimants without real disease. Another result is that workers without symptoms or true abnormality on chest x-ray are subjected to numerous examinations, hearings, chest x-rays and doctor visits. Many have stated, spontaneously, that they wish they had never become involved in the process, since (so far) the monies received (by some company settlements) are small and the inconvenience not worth it. They understand that their claims serve mainly the attorneys who solicited them and that they are but pawns in the litigation. Plaintiff's attorneys can claim, with some justification, that workers deserve to be compensated if they have asbestos lurking in their lungs, since they could develop real disease (e.g., cancer) at any time. If the attorneys truly uncovered many workers with a ticking time bomb, the mass effort would be justified. But the vast majority of claims are filed for workers with no asbestos disease evident on the chest x-ray. How can this be? The problem is in the interpretation of the chest x-ray. Smokers, in particular, can have "shadows" that are often mis-interpreted as asbestos disease. Also, many other conditions (e.g., congestive heart failure) can mimic chest x-ray changes that are mis-interpreted as due to asbestos. Remember, physicians reading the chest x-rays know nothing about the workers' individual medical histories.
Is there a solution to the asbestos-litigation problem? In this context "the problem" is the manufacture of thousands of cases by attorneys looking for claimants, resulting in clogged courts, disappointed claimants, legitimate claims frustrated by interminable delays, and companies held hostage to junk science and trumped up diagnoses. The problem is perceived to be so bad that, in fact, a bill was introduced into Congress to forge a solution, but was never passed. It called for a "national claims facility to expedite fair and prompt compensation" to evaluate all claims, and eliminate those not based on real disease or impairment. According to an editorial in the Wall Street Journal (The Job-Eating Asbestos Blob, Wednesday, January 23, 2002) the congressional bill
"would have created a company-funded, government-run procedure to compensate anyone who's sick or becomes sick from asbestos exposure. The [plaintiff] lawyers nuked it, however, because they increasingly depend on collecting money for clients who claim exposure but aren't sick. The lawyers won partly because most of corporate America stayed on the sidelines. This was shortsighted, to say the least. " It is not clear just how the government-run, national claims facility was to function, but I will offer offer my own vision of a reasonable solution, from the perspective of a practicing pulmonologist. Proposal to Fix the Asbestos Litigation Mess Two panels of expert physicians should be created: board-certified radiologists to interpret the chest x-rays, and board-certified pulmonary physicians to examine any claimants with truly abnormal films. Physicians comprising both panels would be agreed to before hand by both plaintiff and defense attorneys. As a practical matter, this would probably entail about 100 radiologists and 200 pulmonary physicians, spread geographically around the country. Physicians eligible for the two panels would take a course on asbestos-related diseases, and have to pass some sort of test to be included. For radiologists, the B-reader exam might suffice. For pulmonologists, a new exam would be designed to test general knowledge of asbestos-related diseases. This might seem an expensive enterprise, but the total cost would be far less than what is now spent on screening evaluations, re-evaluations, and legal costs for the tens of thousands of claimants. All chest x-rays would be read in a blinded fashion by radiologists from the panel. The physicians would be paid for each film read, with the money coming equally from both sides out of a common fund. Among the chest x-rays submitted for reading would be a large portion (at least 20%) from patients never exposed to friable asbestos at work, who are otherwise matched to the workers who were exposed (e.g., similar smoking history and age). Inclusion of this group of chest x-rays should help guard against bias in the interpretations. Every chest x-ray would be interpreted on its own merits, and the radiologist would have no way of knowing anything about the person whose film is being read. The radiologist would not know if the subject was ever an asbestos worker, if he was party to any claim, or even if he ever smoked. In this way the radiologist would have no attorney to please or displease with his interpretation, and have only his own integrity to worry about. In this scheme each chest x-ray would be read by three experienced, unbiased, board-certified radiologists. If at least two of the three radiologists found no asbestos disease on the chest x-ray, that worker would not be allowed to file a claim for asbestos lung disease. Any worker whose claim is rejected in this fashion would be allowed to re-enter the review process after three years. If two of the three radiologists felt there was some asbestos-related disease on the screening chest x-ray, the individual's work history would be checked; if in fact he ever worked with or around asbestos, he would then go for a clinical examination, by the pulmonary physician, to evaluate his overall medical condition (including lung function tests). A final report would be filed by the pulmonary physician. He or she would also be paid from a common fund, and not directly by either side. After the report is filed any dispute (other than about interpretation of the initial chest x-ray) could be litigated. In this manner bogus cases based on over interpretation of chest x-rays would be eliminated. |
What are the legal impediments to a medical solution? The legal solution is far more complex, of course, since it would have to be
a) passed into law by Congress, and
b) accepted in spirit and practice by plaintiff and defense attorneys. Understandably, the current bill before Congress is meeting strong opposition from trial lawyers involved in asbestos litigation. The Trial Lawyers of America web site states: "With Congress considering legislation that would trap workers and citizens injured by asbestos in an elaborate bureaucracy and set up corporate lawyer-prepared medical criteria that would screen out 60 to 80 percent of potential claimants, it might prove useful to review some quotes from past court decisions that make clear the asbestos manufacturers' misconduct." This statement confuses facts about past company misconduct with the medical truth about current claims. In fact, if most claims were based on legitimate criteria, many more than "60 to 80 percent" would be screened out. In fact, the current scheme of thousands of claims with their interminable delays, and expert pitted against expert for each contested claim, is far more "elaborate" than any bureaucracy set up to blindly review chest x-rays. In any case, "corporate lawyer-prepared medical criteria" are not going to be acceptable. Furthermore, corporate lawyers have never set the criteria for diagnosing asbestos-related disease, and it seems unlikely they would do so in any national legislation. In my opinion, Congress' job would be simplified if the individual members asked themselves two basic questions and then acted on their responses: | 1) Do we (the U.S. Congress) wish to compensate people with a possible history of exposure to friable asbestos, irrespective of any medical information about them? In other words, should medical information be simply irrelevant in determining compensation? (This in fact is the philosophical position of plaintiff attorneys, and is one side of the fundamental philosophical rift mentioned earlier.) |
If Congress agrees with this position -- if the answer to the question is YES -- then Congress should enact legislation to: remove medical diagnoses and medical testing completely out of the claim process; this removal would eliminate the need for physicians to opine that claimants have asbestos-related disease when the evidence is lacking, or argue about subjective interpretation of chest x-rays. It would also free all worker claimants from the onerous process of multiple medical evaluations. develop a worker-compensation schedule based solely on exposure history; while the exposure history would still be debated among lawyers and employers, complete absence of medical issues would greatly simplify the evaluation process. If the answer to the first question is NO, then Congress should consider the second set of questions: | 2) Given that workers with possible exposure to friable asbestos should be compensated based on some medical information (first question), should this information come only from physicians not hired or paid directly by either side? In other words, should a system be developed which guarantees the objectivity and integrity of evaluating physicians? |
If the answer to this second question is YES, then legislation should implement the medical solution outlined above, or some similar fair and unbiased process. If on the other hand the answer is NO, then Congress should abandon any attempt to fix the problem, and accept that the current morass created by attorney-generated, medically-unfounded mass claims will continue ad infinitum. |
