Trust Fund Bill Would Exclude Many Asbestos Victims
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By Andrew Schneider
10/10/2004 Medical criteria used by Senate are outdated, incomplete, critics say SANDPOINT, Idaho - Mick Mills endures the agony of full-blown asbestosis. The 72-year-old former safety manager for a lumber company, part-time helicopter medic and passionate photographer of Glacier National Park is shackled to an oxygen tube, which helps him breathe. He needs the oxygen to live. Scarring caused by asbestos fibers has made his supple lung tissue rough and leathery, like the covering of a football. He shuttles between home and hospital, often having four, five or six quarts of suffocating fluid drained from his abdomen each visit. Congress has spent four years struggling through often rancorous debate to get federal legislation that would help people like Mills and those with asbestos-caused cancers that kill far more quickly. The proposed law is called the Fairness in Asbestos Injury Resolution Act. The bill was meant to help Americans sickened by asbestos exposure without their having to sue the companies responsible for the exposure. Under the legislation proposed, these people would be compensated from a trust fund. Much of the discord around the measure was over the size of the trust fund and how much was going to be contributed by corporations that used asbestos, their insurance companies and the government. But to those suffering with the disease and to the physicians treating them, the most important deficiency in the bill was the medical criteria that controlled who would get help and who wouldn't. Now there is a compromise on the table between Republican and Democratic Senate leaders on the size of the fund - $140 billion. Specialists in chest diseases say the bill would still leave many people as sick as Mills - and there are thousands like him - out of luck. They would be on their own, scrambling for the $400,000 to $800,000 usually spent on oxygen, drugs and pain medication before they die. Mills is paying his own medical bills with a combination of insurance and personal money. The argument that thousands of asbestos victims are wrongly excluded from being eligible for help has flared again with the publication of the American Thoracic Society guidelines for identifying and treating people like Mills. The ATS guidelines, released last month in the American Journal of Respiratory and Critical Care Medicine, differ dramatically from the Senate criteria. The Senate's criteria were developed in part by a committee of the American Bar Association and then were presented to Sen. Orin Hatch, R-Utah, chairman of the Judiciary Committee, who had sponsored the bill. Hatch first embraced the ABA offering but modified it after many union officials and public health specialists denounced it as "pro-industry" and unfair to victims who would be prevented from suing. Many believe that Hatch's plan is still too exclusionary. "On the basis of the current science and medicine, the diagnostic criteria in Sen. Hatch's bill are outdated, incorrect and incomplete, and if enacted into law, will harm untold numbers of patients," said Dr. Michael Harbut, a co-author of the ATS study and chief of the Center for Occupational and Environmental Medicine at Wayne State University in Royal Oak, Mich. Major differences The differences in the two criteria are vivid. For example, in two of the most easily explained differences, Hatch's bill says people must have been exposed to asbestos for at least five years to qualify for compensation by the trust. ATS says studies have shown that as little as two months of exposure can cause disease. Hatch's legislation says only people exposed to asbestos on the job would qualify. ATS criteria say spouses and children of workers and those who lived near plants using asbestos must be considered. Hatch's bill centers predominantly on malignant asbestos-caused cancers, including the fast-killing mesothelioma. The ATS guidelines examine the much more prevalent asbestosis, which is a scarring of the lungs that leads to breathing problems and heart failure, and pleural plaque, a fibrous thickening of the lining of the chest cavity. "None of this makes sense. Why should workers with asbestosis but less than five years' exposure be left without any recourse?" questioned Joel Shufro, executive director of the New York Committee for Occupational Safety and Health, a nonprofit training and advocacy group with a membership of some 250 union organizations. "Under the Hatch bill, someone who gets asbestosis from nonoccupational exposure will lose all right to compensation, even though the ATS criteria states, as we know perfectly well, that children and spouses of workers exposed to asbestos can, and do, get asbestosis from the fibers that get tracked into homes and cars." The trust fund was offered up as a way to unclog courts across the nation that have had to deal with tens of thousands of asbestos claims. For vastly different reasons, people on both sides of the issue believe that the court process must be streamlined. About 70 corporations have filed for bankruptcy protection, with protection against a flood of asbestos claims often being the stated concern. From the perspective of the victims, their claims often languish for years, and many people die before they get their day in court. Last spring, Senate Majority Leader Bill Frist, a Tennessee Republican and physician, threw his influence behind the Republican-favored legislation, which had stalled for the third time. Frist said it must be passed. All summer, Frist and Senate Minority Leader Tom Daschle, D-S.D., made offers and counteroffers, and finally agreed that $140 billion would be the size of the trust fund. But the insurance lobby and several unions, including the AFL-CIO, balked, saying the fund was too small to cover existing cases, let alone any new ones. Worried for future When the legislation was introduced in the House in 2000 by Rep. Henry Hyde, R-Ill., as the Fairness in Asbestos Compensation Act, the logic was that the tsunami of asbestos cases was over and all that had to be dealt with were the thousands of survivors whose cases were overloading court dockets. Now, more than four years later, government health researchers are reporting that a new rush of asbestos victims is expected to surface over the next two decades. The ATS study said "asbestos is still a hazard for 1.3 million workers in the construction industry and for workers involved in maintenance of buildings and equipment." In addition, the study warned of "new products that may contain" asbestos, and listed brake pads, roofing material, vinyl tiles and imported cement pipe and sheeting. "It is absurd to say that asbestos is not a continuing threat in this country," said Shufro. "Sen. Frist, who is a medical doctor, is ignoring best and latest science on the subject." Last month, about 40 miles from where Mills lives, some of the nation's best asbestos specialists gathered in a remote timbered lodge in western Montana. Their goal was to develop a research center for better identifying and treating asbestos disease, especially illness from the type of particularly toxic asbestos that came from a vermiculite mine in nearby Libby, Mont. None of these participants - from major medical centers, federal agencies and universities - said they believe the asbestos epidemic is over. "The scope of the asbestos problems is really not known. We need more information on how far the asbestos from Libby has spread and how pervasive it is. But there is significant reason for concern," said Dr. Stephen Levin, co-director for the World Trade Center Workers Medical Screening Program and one of the research group's founders. X-rays and lung function tests taken in Libby by the federal government have shown that thousands of people in that tiny logging community have signs of asbestos-related disease from the world's largest vermiculite mine, last owned by W.R. Grace & Co. The U.S. Agency for Toxic Substances and Disease Registry also is evaluating former workers and neighbors of some of the hundreds of plants across the country that processed Libby's vermiculite. Some in the group were highly critical of the medical criteria proposed by Hatch. "I am treating about 1,500 patients, and two-thirds of them will not be covered by the Senate criteria," said Dr. Alan Whitehouse, a board-certified pulmonologist who first identified the disease in Libby, which has killed more than 200 miners, family members and neighbors. "You can't make disease disappear by outlawing it. The government has its head in the sand. They made the criteria so rigid that it excludes far too many people," said the chest specialist, who treats asbestos patients from both Libby and the Hanford Nuclear Reservation in Washington state. Harbut, also a member of the Montana group, saying he was not speaking for the ATS, said it's "senseless" for Congress to pass any legislation that didn't consider all sources of asbestos exposure. "The ATS paper also recognizes that persons exposed to vermiculite mined in Libby and used as housing insulation all over America, are at risk of exposure to asbestos and the development of asbestosis and asbestos cancers, if improperly exposed," said Harbut. He is co-director of the National Center for Vermiculite and Asbestos-Related Cancers. In Washington a week ago, Frist's spokeswoman, Amy Call, said that the senator had not seen the ATS study. Daschle's staff said the minority leader had the new medical criteria and "if the legislation is reintroduced next year," the ATS material will be examined with other new information. Mills says he doesn't think he'll live long enough to see the legislation passed. "I'm not sure anyone will," he says. "They're trying to pass that bill without knowing what this disease is all about." He stops for a moment, tugs on the oxygen tube and tries to find a comfortable position for his skinny frame to sit on the dining room chair. "I wouldn't wish asbestosis on anyone, but just for a brief moment, I wish those senators creating the asbestos legislation could know what it feels like to be drowning in your own fluids," Mills said last month. "Some type of legislation is probably needed, but the decision of who gets help and who doesn't must be left up to the doctors who treat people like me and not the politicians who just can't understand the pain."
Andrew Schneider
*** POSTED OCTOBER 11, 2004 *** |