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Legal overview: Lung cancer claims
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Lung cancer
impacts over 175,000 people and is the second leading cause of death in the U.S.
Smoking is a substantial cause of the disease, but occupational exposure to
asbestos, silica and other carcinogens creates potential claims. Here's an
overview of the legal issues and basic medicine involved with lung cancer
claims.
Worker's compensation
In
a worker's compensation claim, an individual alleges his disease was caused by
exposure to carcinogens during his employment. Many industrial environments have
involved dusts such as asbestos and silica; carpenters, plumbers and contractors
not infrequently file claims. Claims typically involve multiple employers since
each may have been responsible for part of the exposure and there is no way of
identifying which actually caused the disease. With lung cancer thought to arise
from 10-20 cellular mutations causing a disruption of the body's cell signaling
network, many if not all of these exposures theoretically played some role. (The
existence of duplicate copies of most genes and the body's sophisticated system
of cell repair and cell death are generally sufficient to address a single
mutation).
Claims of
deceased workers can be more difficult since someone needs to identify the
nature and source of exposure. Once exposure is identified, a physician is asked
to provide a report causally relating the exposure to the disease.
Product liability and third party claims
A product liability or third party claim alleges an individual's exposure to
a dangerous dust or substance caused or contributed to his disease. The most
prevalent claim involves asbestos with medical studies showing its capacity to
cause cancer in the lung. Multiple defendants are common and the plaintiff must
establish his exposure to each defendant's product. This is done through the
plaintiff's own knowledge or observations, those of co-workers or occasionally
documents or other means. Under Sholtis v. American Cyanamid Co., 238
N.J. Super. 8, 19 (App. Div. 1989), plaintiff must satisfy the regularity and
proximity exposure test though the meaning of these terms has been debated, and
exposure constituting less than 5 percent of overall may still be sufficient for
liability.
The plaintiff has the burden of showing that collectively asbestos was a
substantial cause of his disease. Claims are frequently filed even if the
plaintiff was a smoker and if he can demonstrate asbestos' role as a substantial
cause, damages are allocated between asbestos and tobacco.
Silica
Silica is also a carcinogen though the evidence associating it with lung
cancer is not as compelling as that of asbestos. Silica claims typically involve
many of the same issues as asbestos. Can plaintiff demonstrate exposure to a
particular product (s) and show the exposure contributed to his disease. Absence
or inadequacy of warnings, instructions and recommendations for product use are
a part of both cases. Along with a medical expert, an industrial hygienist or
other expert may provide a report discussing the nature and levels of exposure,
particularly if they exceed established standards. For example, a sandblaster
might aver that he was exposed to substantial quantities of air-borne silica
beyond threshold limits during his work and that the manufacturer failed to
provide warnings of the dangers of this process, and recommendations for masks,
ventilators and yearly pulmonary screening. Who has the responsibility for
insuring safety conditions - employer or manufacturer - is a frequent question.
Lung
cancer medicine overview
The
disease is divided into basic categories non-small cell lung cancer (NSCLC) and
small cell. NSCLC represents about 85 percent of cases and is comprised of
adenocarcinoma, squamous cell, and large cell. The three types were categorized
together because they were thought to behave in a similar biologic fashion and
respond to treatment. Today much research focuses on subtle differences
particularly in cellular behavior.
NSCLC, the focus of most claims is divided into stages 1-4. At stage one, the
tumor is limited to the lung and the primary treatment is surgical removal of
the tumor with a 60 percent 5 year survival rate. At stage two the tumor has
infiltrated adjoining lymph nodes reducing survival though surgery is still
used. At stage 3, the tumor has infiltrated distant lymph nodes. This stage is
divided into 3A and 3B and complex surgery combined with chemotherapy used for
stage 3A, while chemotherapy is the primary treatment for 3B. Long-term survival
is problematic. By stage 4 the tumor has gone on to metastasize to another organ
and survival rates are generally less than two years. Chemotherapy is the
principal treatment for stage 4 with a combination of drugs employed if the
patient can tolerate it. There is a partial response rate of about 25 percent
but frequent recurrence and chemotherapy resistance.
Thus, non-small cell lung cancer is treatable in its early stages with surgery,
but at its advanced stage chemotherapy is the principal treatment, though
largely ineffective. Radiation is used at advanced stages to relieve pain and
discomfort. Because a smaller lung tumor may not impact breathing or cause pain,
the majority of tumors are sadly diagnosed at advanced states.
Initial
diagnostics tools vary. The chest x-ray is still widely used but smaller
treatable tumors can be overlooked because of the test's limitations. The chest
Ct Scan is a far more accurate tool and a preliminary diagnosis of lung cancer
is usually confirmed through biopsy.
The other category, small cell lung cancer, comprises about 15 percent of
reported cases and is divided into limited and extensive. The tumors are usually
diagnosed with the extensive categorization, initially respond to chemotherapy,
but chemoresistance develops and the disease cannot be successfully treated.
Improving the efficacy of chemotherapy and developing genetic therapies are
goals of lung cancer research.
Evaluation of occupational claims
Various factors come into the assessment of claims. First, consider the type
of lung cancer: Adenocarcinoma is most frequently associated with occupational
exposure and some recent clinical studies show non-smokers developing it. Since
many smokers also develop adenocarcinoma, the significance of the classification
will be disputed.
Squamous cell and small cell are more related to smoking, though here too
plaintiff and defense counsel will debate the issue. Finally there is a rare
type of cancer related to asbestos exposure called mesothelioma. Almost all
agree to its association with asbestos exposure and most claims are litigated
based upon whether the plaintiff was exposed to a particular product and which
defendant is responsible.
A tumor generally does not disclose its origin excepting rare cases where
pathology shows asbestos bodies near the tumor. Some patients will have other
lung disease such as asbestosis or silicosis, with their existence confirming
exposure and strengthening the plaintiff's case. Conversely the existence of
chronic obstructive pulmonary disease may point to the role of smoking in the
development of the disease.
Damages involve lost wages, pain and suffering and other elements. Attorneys
frequently assess the overall value of the claim, discount that amount by the
smoking history and estimate their client's percentage of liability. Various
settlement modalities are used though the failure of many companies in the
asbestos industry has led some to defend claims where they believe smoking
played the predominant role.
Medical malpractice
Since the timeliness of diagnosis can predict the success of treatment,
medical malpractice claims also arise. Chest-x-rays where small tumors were
missed or followup not performed are one frequent type. There are no protocols
for lung cancer screening and a simple failure to provide a chest x-ray at an
annual physical would not create a claim unless the patient's symptoms or other
facts indicated the need for diagnostic testing. Interestingly liability is more
likely to arise from an incorrectly interpreted x-ray than the failure to give
one at all.
Family members sometimes point to errors in treatment of a patient with advanced
cancer but deviations there frequently do not create claims because they did not
alter the patient's long-term prognosis. Indeed many malpractice claims are
assessed in reverse order, causation, then damages and liability, with the
reasoning that expert assessment of the treatment is warranted only if there
will be a substantial claim.
Conclusion
Lung cancer can create various types of claims which the attorney needs to
evaluate. Familiarity with the basic medicine may help determine what claim
cases exist and help assess their value.
Howard Gutman is the author of the book Lung Cancer and Mesothelioma
now entering its second edition, and available at
Amazon.com. He is an attorney with offices in New Jersey and New York who
handles litigation involving lung cancer