Letter from Medical Specialists on Asbestos-Related Disease Opposing Medical Criteria on Proposed Federal Legislation. |
The following letter is from leading physicians and scientific investigators in public health with specialties in internal, occupational, and pulmonary medicine. Other specialists are encouraged to add your name to the growing list of opponents to the medical criteria contained in the proposed federal legislation. January 28, 2000
As physicians and scientific investigators in public health with specialties in internal, occupational, and pulmonary medicine, we are concerned about recent attempts to federally legislate medical diagnostic criteria and eligibility for compensation for asbestos-related disease. We are writing to inform you of our concerns, summarize those provisions of the legislation to which we are opposed, and enlist your aid to block passage of this legislation as currently conceived. Two pieces of "asbestos legislation" were introduced in the United States House of Representatives in the past year and a third has been drafted. Because the legislation ostensibly deals with legal issues, it falls within the purview of the House Judiciary Committee. However, it should be noted that because of the medical criteria contained in these bills, they are pari passu medical practice guidelines, establishing criteria for the diagnosis of disease and by extension the basis for medical treatment, or lack thereof. The first bill introduced in the House was the Hyde "Fairness in Asbestos Compensation" Act (HR 1283). The second, in preliminary draft form, was the so-called BAGAL (Boston Area Group for Asbestos Legislation) bill; and the third is offered as "Amendment in the Nature of a Substitute to HR 1283". Each contains medical criteria designed to 1) determine presence or absence of an asbestos-related injury and 2) determine whether the injury is of sufficient magnitude to warrant legal compensation under the tort system. These medical criteria serve as a "gate" to entry into the legal system for those with known or suspected asbestos-related disease. The medical criteria in each of these pieces of proposed legislation are similar. The criteria apply to asbestos-related pleural abnormalities, asbestosis, and asbestos-related malignancies – including lung cancer, malignant mesothelioma, and other cancers such as gastrointestinal malignancy and cancer of the larynx. Determining variables are exposure, latency, radiographic findings, lung function test results, and for lung cancer the presence of asbestosis or asbestos-related pleural disease. In addition to determining what constitutes an "acceptable" asbestos-related injury, the criteria establish who shall make these determinations – i.e., what medical specialists. Notably absent are occupational physicians, arguably the specialty most capable of diagnosing asbestos-related disease. Key features of the proposed legislation are summarized below and are entitled "Eligible Medical Conditions", or "Medical Criteria", and "Definitions". Specific sections on medical conditions are non-malignant conditions with impairment, lung cancer, other cancer, and reimbursement for certain medical testing. Definitions include "Asbestos claim", "Chest X-rays", "Clinical evidence of asbestosis", "Evidence of bilateral pleural thickening with impairment" and "Latency period". In the following respects medical criteria in the proposed legislation are 1) arbitrary, without support in and generally contrary to published medical and scientific literature, 2) ambiguous, and 3) likely to limit access to medical care and due process for a large number of asbestos-exposed workers. First, in order to qualify for compensation for a nonmalignant condition with impairment, an individual must meet criteria that link specific classifications of either pleural or interstitial abnormalities on chest X-ray with specifically and narrowly defined lung function test results. These criteria are without foundation in published medical or scientific literature. Second, individuals with lung cancer do not qualify for compensation unless they have asbestosis as defined in the bill, asbestos-related pleural plaques or thickening as defined in the bill, or pleural abnormalities and "evidence of 15 years of heavy occupational exposure to asbestos-containing materials in employment regularly requiring work in the immediate area of visible asbestos dust" – further qualified by an arbitrary exposure paradigm. To say the least, such a requirement flies in the face of numerous published scientific studies showing and government policy based upon a dose-response relationship between asbestos exposure and lung cancer that is linear. In addition, the predominance of scientific evidence now is that asbestosis is not a necessary prerequisite to an asbestos-related lung cancer. The evidence is quite to the contrary. Further, the latest iteration of the legislation includes a subsection under Asbestos-Related Lung Cancer not found in earlier versions. Entitled "Smoking", this section precludes from compensation individuals otherwise qualified for compensation for an asbestos-related lung cancer but who have a "substantial history of smoking". Scientific evidence overwhelmingly indicates that asbestos and cigarette smoke act synergistically to increase the risk for lung cancer in individuals exposed to both compared to those exposed to neither. The results of some studies indicate that nonsmokers are at equal if not increased risk for asbestos-related lung cancer. And what constitutes a "substantial" smoking history? This section is not only unscientific but also unnecessarily and unfairly restrictive. Third, individuals who do not meet criteria for compensation under the provisions of the bill are eligible for reimbursement for "certain medical testing expenses" but only if they meet specific ILO classification criteria for lung parenchymal abnormalities (small opacity profusion 1/0) or pleural abnormalities (width B/extent 2) on chest X-ray. In fact, medical consensus is that individuals with occupational exposure to asbestos need periodic and lifelong medical surveillance because of their asbestos exposure, whether or not they have radiographic abnormalities at a given point in time. But if they have any asbestos-related abnormality on chest X-ray, they are at significantly increased risk for the subsequent development of lung cancer and malignant mesothelioma – and some studies have shown, for overall mortality. This group is critically in need of long term medical follow-up. The legislation allows a maximum of only $500 for medical testing for those that qualify, to be dispensed in a manner that is difficult for even a physician to understand. Fourth, a critically important determining variable in the legislation is "latency". Latency is defined in the bill as the period between the "first significant exposure to asbestos or an asbestos-containing product" and manifestation of disease. "Significant" is not defined. And this is not the definition of latency used in epidemiology, namely the first exposure – not the first significant exposure. Who will determine what exposure is "significant" under this legislation? SUMMARY In summary, the proposed national asbestos compensation legislation contains provisions for a Medical Advisory Board, medical criteria for eligibility determination, and definitions. These provisions contain common threads that we believe are cause for concern. These are 1) the designations of medical specialists qualified to render opinions about medical diagnosis of asbestos-related disease and medical determination of claimant eligibility, 2) latency criteria, 3) selection of radiographic findings necessary to establish medical eligibility, and 4) selection of pulmonary function test results needed to satisfy medical criteria for eligibility. The latter would likely preclude from compensation individuals with asbestosis who may have another underlying lung condition such as asthma or emphysema. An additional cause for concern is the exposure schema set forth as necessary to satisfy medical criteria for eligibility for asbestos-related lung cancer. The exposure criteria are not only arbitrary but also unrealistic for most asbestos-exposed workers whose exposure likely occurred decades ago when the hazards were unknown to them and airborne levels of exposure were not being measured by employers. In our opinion, these provisions of the legislation are arbitrary, illogical, without foundation in either clinical experience or published studies in the medical and scientific literature, and open to bias. The proposed legislation, if passed, will impact the lives of thousands of current and former workers in the United States who have been exposed to asbestos during the course of their work – most of them unknowingly. These workers are at risk for or have already developed asbestos-related disease, in many cases fatal. To legislate medical provisions and criteria that are arbitrary and unnecessarily restrictive, as we believe these are, places an unreasonable burden on these workers and their families and will deny them benefits to which they are entitled. For many, this denial of benefits will preclude access to necessary preventive and therapeutic medical care. We ask that you consider these issues when you consider the legislation and any action you or your organization might take with regard to this legislation. Relevant references are provided below for your information and review. Authors are listed alphabetically.
Very truly yours,
Jerrold L. Abraham, MD
Arnold R. Brody, PhD
Donald D. Cameron, MD, MHA, DABR
Nicholas Gerber MB,BS, FCP
Michael R. Harbut, MD, MPH, FCCP
Philip J. Landrigan, MD, MS
Jacques F. Legier, MD
John C. Maddox, MD
James Merchant
Peter Orris, MD, MPH
Andrew W. Prychodko, MD JD MPH FCLM
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