By Roger G. Worthington, Esq. and Seth Davidson

Manning the oars

A mesothelioma client [1] is on a ship whose hull has been breached. His first instinct is to rush for the nearest medical "lifeboat" that promises to extend his life. Do lawyers have a duty to advise their mesothelioma clients about the best available medical treatment "lifeboat?"

Every lawyer who represents mesothelioma clients knows that the patient and his family are in the throes of crisis. We know that eventually the tumor will take our client's life. We also know that the tort system puts a premium on a longer "damaged" life. The longer a terminal patient lives, the greater the damages, and the greater chance the case will be resolved at or near trial, where settlement values usually peak.

The "longevity" premium is especially high in California, where the law allows an in extremis plaintiff to get to trial within four months, but then penalizes his estate if the cancer kills him before the jury renders a verdict. [2] The legislature has exacted a "penalty" of sorts by stripping the family of any right to recover damages for the pain, suffering, disfigurement, and anguish that their mortally wounded loved one endured while alive.

Regardless of intent, the California legislature has rewarded tortfeasors whose bad conduct kills instead of maims (hence the sick joke here: "If you run your car over a guy, check the rear view mirror. If he's still moving, shove it in reverse.") In the litigation world of winners and losers, if the measure is strictly money, the defendants enjoy an economic windfall when their victim perishes. The victim earns a chance at a full recovery only if he survives, and thus lawyers clearly have a pecuniary interest in their client's longevity.

To live and die in LA: a premium on life

From July 2000 to September 2007, my firm represented 37 living mesothelioma clients whose personal injury cases were filed in Los Angeles. Of those, 40.5% died before their case was resolved. See Charts A1-A3, "To live and die in Los Angeles Superior Court." Some died before their depositions, while others died right before trial, just as we began to seriously engage in settlement negotiations. When our clients died, the defendants either took their settlement offers off the table or slashed them to the bone. Clearly, in California and in Oregon [3] , which limits the recovery in a death case, plaintiffs' lawyers again have an interest in their client's longevity.

It's intuitive that the longer a mesothelioma patient lives, the more therapies he will pursue, and the more medical costs he will incur. As lawyers, we need to know about the various therapies and their respective costs, if only so that we can present the jury with future medical costs, which can be enormous. An ad hoc body of mesothelioma medical experts in 2006 presented Congress with anecdotal data to defend the common sense supposition that for mesothelioma patients to get more life, it takes more money. The group argued against the proposed $1.1 million one-size-fits-all matrix award to mesos irrespective of age, wage loss, and dependents, because in select cases this would not even cover the patient's medical bills. The group cited instances in which "long term" survivors had medical bills for multi-modal therapies ranging from $201,000 to $1.4 million. See Chart B, "Longer life, bigger bills: medical costs for 14 mesothelioma victims."

Our experience with medical bills for long term survivors is even more dramatic. The average past and present medical bills for the last ten mesothelioma cases set for trial in LA was $308,000. The low was $216,000 and the high was a whopping $2.4 million for a 72 year-old, three-year survivor who pursued multiple therapies. See Chart C, "Verified medical bills for nine RGW, PC living mesothelioma clients, 2007."

Lawyers can present the jury with reasonable and medically necessary bills for past medical services. It's more difficult to present evidence of future costs. If our client belongs to a defined treatment protocol, and is somewhere in the middle of it, it's easier to assess the future costs on a case-by-case basis, if you have a knowledgeable treater. The problem is that in the real world mesothelioma patients must be opportunistic and "light on their feet," swiftly and smartly shifting from one regimen to a newer and more promising one. If medical experts could agree on a standard of care that utilizes a uniform treatment protocol we conceivably could put on credible evidence of future medical costs in every case.

Lawyers have stronger cases with longer-living mesothelioma clients, and we should therefore deeply care about the treating physicians and the treatment options the client pursues. That said, how do we go about learning what the best options are?

I want more lif

For mesothelioma patients, the crux of the crisis is how to buy more time. How can we as lawyers help, if at all? Medical, logistical, and philosophical questions abound: how bad is the tumor? What treatment options are there? Are they any good? How much do they cost? Is one form of surgery better than another? Is surgery even necessary? If my client gets radical treatments, can he still endure a grueling two-week deposition? Can he make it to trial? Can he still play golf, hike, bike, or putter with his grandkids? What's his quality of life going to be? How long has he got

Where does the patient or the lawyer look for answers when the data are confusing, when there are no clear answers, and when there is no standard of care? Where do you look for answers when the doctors may not even know? [4]

Let's step into the breached hull of a mesothelioma patient and try to pick the best lifeboat. He's just been diagnosed. Water is pouring in. Now what?

Searching for a lifeboat on a sinking ship

If the ship is going down, your first instinct is to grab for the nearest lifeboat. If you had time to reflect, though, you might ask: how bad is the breach? How much water have we taken on? Can it be repaired? How fast? Are the bilge pumps working? And what about the lifeboat itself? Is it stocked with provisions? Is it seaworthy? As with the sinking ship, with asbestos cancer you need to assess or stage the damage at the same time that the damage is escalating out of control

Staging a tumor is complex stuff. Mesothelioma doesn't thrive as a solitary ball-type nodule. It's diffuse. It spreads, usually within the confines of the pleural space - if the patient is "lucky" - otherwise, by itself or during surgery (including needle biopsy) it can spread like wildfire. Oftentimes we won't truly know the proper stage until after radical surgery, when lymph nodes are dissected, as few doctors require mediastinoscopy before surgery, and PET scans, though helpful, are not reliably diagnostic of nodal invasion. There are at least five different types of meso, some more amenable to treatment than others, and there are at least six different tumor staging systems with no uniform use among doctors. It's like trying to get the same answer from six different people, none of whom speaks the other's language. Regardless of the staging system, common sense teaches that the earlier the stage, the higher the survival on average

Let's say we have an accurate fix on the size, type, and extent of the pleural cancer: an early stage epithelial tumor that hasn't invaded any surrounding organs or any lymph nodes, and the patient is a male in his early 60's. Let's assume further that the patient is aware of multiple options such as chemotherapy and radiation, but at the outset wants desperately to rid his chest of the beast. Viscerally, he wants it out, he wants an operation, and he wants to rage back against the disease. Destroy the invader. Crush it. Get it out

Our patient's threshold decision is whether to hook up to chemotherapy or jump right into radical surgery. He must make this decision while his ship is taking on prodigious quantities of water. Amidst the mayhem, he must get to and choose a lifeboat. Even if the waters were calm and he had the luxury of time, my nineteen years of watching how these decisions get made convince me that his decision would still involve a throw of the dice compared to other cancers.

The problem is a lack of reliable data. Surgeons at the forefront of mesothelioma treatment are few and busy, often with little incentive to publish the results of their work. Since mesothelioma is an uncommon cancer, research money is scarce. Everybody talks about the merits of randomized clinical trials, but few treatment centers have the funds to finance them, and fewer still have been willing to set aside ethical concerns and design and recruit for one.

Another theory is that some centers or doctors may worry that their "treatment program," if subjected to rigorous outside scrutiny, could be shown to be ineffective. Those who do publish are always at risk of criticism for "cherry picking" because the pool of patients is so small, the outcomes so often fatal, and because a patient - if he's lucky - may over a 3-4 year survival period seek different treatments from different hospitals. Very few surgeons or oncologists "quarterback" their patient from start to finish. If it's a daunting obstacle for doctors, it's even more daunting for lawyers who wish to engage.

A common approach is to look at the work of leading surgeons and pick the surgery that advertises the longest survival time. Unfortunately, surgical studies are typically retrospective rather than prospective and lack a non-surgically treated comparison group, [5] so it's impossible to say whether surgery actually helped. The advent of chemotherapy, used alone and used in combination with surgery, opens other vistas…and new horizons of uncertainty.

Deciding which lifeboat to take isn't just hard for the patient, it's hard for the doctor as well. Treatment ranges from doing everything to doing nothing. If the doctors are divided, how can a lawyer possibly give sound advice? And if the doctor and lawyer are confounded, how can a patient ever hope to get through the maze?

iMedicine: the quest for good, solid data

The mesothelioma client's first step is to hop on the Internet, where his beleaguered boat is quite often capsized by a monster wave of information, pseudo-information, and misinformation. His first task is to begin ruling out bad options like the unregulated nostrums in the Bahamas and Tijuana.

However much time this takes, and it usually involves one or more relatives devoting all of their spare time to online research, the client finally concludes that although there is no single option, surgery is most often the bedrock of a successful mesothelioma treatment plan. The most recent study examining mesothelioma survival reviewed 939 cases and showed that surgery plus other treatments is associated with a median survival of 20 months. [6] And although there is no consensus on the best way to treat mesothelioma, the International Association for the Study of Lung Cancer makes clear that the goal is maximal tumor debulking in patients who are candidates for surgery. [7] That is, leave no visible chunks of tumor behind. There was no agreement among the experts, however, about the optimal type of surgery, the need for radiation therapy, or the need for combined modality treatment incorporating chemotherapy. [8]

So the one thing we think we know-that surgery extends survival-we don't really know. Flaws in past data and the development of new techniques mean that the intuitive choice of surgery-cut the tumor out-won't be validated until a true randomized prospective trial has been done. Just such a trial is underway in the United Kingdom, although even this groundbreaking study will only test the extra-pleural pneumonectomy (EPP) and not the lung-sparing pleurectomy / decortication( PD). [9]

Until those results are in, how is a patient to decide, as the clock ticks and water fills the engine room?

Choices: the good, the bad, and the ugly

Mesothelioma defies quick fixes. It has a long incubation period, its symptoms are often interpreted as pneumonia, it's a soft and diffuse tissue, the diagnosis is not easy, the time from diagnosis to treatment is harrowingly short, it commonly afflicts elderly patients in their 70's and 80's, and it is associated with co-morbidity factors such as heart and lung disease that make aggressive treatment risky at best.

The medical seascape reflects this violent storm of circumstances, as doctors vacillate between two extremes. Some surrender to nihilism and counsel that the ship is quite literally sunk. Others subscribe to the radical interventions of slash, burn, and poison, otherwise known as surgery, radiation, and chemotherapy. Most agree that, left untreated, the patient will almost certainly die in a median of nine months. [10]

On top of that, for many patients, the first concern is insurance. Will their HMO or Medicare cover a non-standardized series of treatment by out-of-plan doctors? Most won't. Many doctors will tell a patient that they don't need to go to UCLA or Brigham and Women's Hospital in Boston because they have a perfectly good thoracic surgeon in the neighborhood who, by the way, has only done one or two, if any, radical surgeries in his entire career.

Chemotherapy: the standard of care?

In 2004, the FDA approved Alimta for the treatment of mesothelioma. Before that, there was no drug that had been approved specifically for meso, and most patients were steered to multi-modal therapy protocols that included radical surgery. Oncologists and Eli Lilly touted Alimta/Cisplatin as the new "standard of care." A large randomized trial showed that the Alimta/Cisplatin regimen offered about 12.1 months of life rather than Cisplatin alone, which offered about nine. Since then, many surgeons have commented that they are seeing fewer patients, as primary care doctors have begun to bypass surgeons and refer their patients directly to the town oncologist.

Experts in the field continue to differ, and most, like thoracic surgeon Dr. Raja Flores, agree that "controversy still exists with regard to standard care." [11] The reason that experts disagree is that promising results and longer lives seem to result from multi-modal therapy, which uses chemotherapy in conjunction with some form of surgery. Chart D, "Cocktails and single shots: measuring drugs by the numbers," provides an overview of available drugs and median survival times. Critics note that the University of Chicago Alimta/Cisplatin study that led to FDA approval barely reached levels of statistical significance, [12] prompting some to conclude that if Alimta/Cisplatin is the standard of care, it's not by much.

Clinical trials: more drug cocktails

Bewildering, experimental, little accountability, less data, and fraught with complex rules for eligibility, clinical trials are sometimes the only hope a mesothelioma patient has. Most involve combinations of drugs. By definition, as "experimental," there is little if any data about survival times or recurrence rates. On the other hand, cost is rarely a factor, as the sponsor of the trial normally supplies the drugs and the attendant medical care.

A full listing and description is available in Chart E, "Best web resources for clinical trials." There are about nine trials in the U.S. still recruiting patients. The client and his doctor should look at each one carefully.

Multimodal therapy: the kitchen sink approach

Since there is no silver bullet, doctors have combined different treatments, hoping that the mixture of therapies will provide a lifeboat. Multimodal therapy, which uses surgery as the bedrock and adds chemotherapy or immunotherapy with radiation, is associated with longer survival in younger, early stage mesothelioma patients. [13]

Multimodal therapy based on surgery appeals to common sense and to the approach with other cancers: extract the monster from the chest, and then blast all remaining traces with radiation or drugs. It also appeals to thoracic surgeons, who make their living cutting. Just when it seems like the lifeboat choice is getting clearer, though-at least we know we need surgery-new issues arise, buffeting the boat harder than ever.

The three surgical options are talc pleurodesis (TP), pleurectomy / decortication (PD), and extrapleural pneumonectomy (EPP). That much is easily said. But here's the kicker: "There are no randomized studies comparing these techniques [TP, PD, EPP] and results are generally found in retrospective series that often used different staging systems, further confounding comparisons." [14] The effect of surgery on mesothelioma is unclear because there has never been a randomized, controlled clinical trial to determine whether PD or EPP improves the survival of patients or even effectively palliates the symptoms of the disease. [15] To compare techniques and decide which one is better, there must be a trial that randomly assigns some patients to a treatment group, and others to a nontreatment group. This is the only way to answer the question, "How much better is this than that?"

It's important to understand what these experts are saying: because you can't reliably compare patients, and you can't reliably compare treatments versus non-treatments, you therefore can't reliably compare outcomes. An educated guess at best, a roll of the dice at worst.

But which guess is best? Multimodal therapy is associated with increased survival, and most patients with early stage, lymph node negative tumors will seriously consider surgery. At this point, the lawyer as patient-advocate can help.

Talc pleurodesis (TP): stem the effusions

Though talc pleurodesis is not always recognized as a "treatment" for malignant mesothelioma, some researchers have shown that unselected survival data is comparable to highly selected surgical series of combined pneumonectomy, radiation, and chemotherapy. [16] Chart F, "Talc Pleurodesis," provides an overview of this treatment option. Most agree that the TP is very effective in retarding recurrent pleural effusions. Myths abound about whether a mesothelioma patient post-TP is eligible for a pleurectomy / decortication, but the truth is a careful surgeon won't be deterred, unless perhaps the TP included a lung biopsy or other procedure that opened up the lung or chest wall to deep tumor invasion.

Radical surgery: keep the lung? Or let it go?

Chart G1, "Six recent studies on mesothelioma surgery-a toss up?" lists medical research that probes deeply into the issues associated with mesothelioma treatment and survival. Take a look, but don't take comfort that the best and brightest are on the case. Few of these trials are available in the U.S., where research money for mesothelioma is depressingly tight.

Chart G2, "The mother of all clinical trials?" lists the only randomized clinical trial ever held to test the efficacy of mesothelioma surgery versus non-surgery. Unfortunately, the trial only tests EPP and is only available in the United Kingdom.

Chart G3, "Keep the lung or lose it? A comparison of the PD and the EPP," breaks down the key differences between the two surgeries. Read it closely. Many of us have been taught that PD is "palliative," a word that suggests the operation is hardly worth the effort, like putting a band-aid on a gashed hull. Many of us presumed that the only chance a patient had for a five-year survival was to head to Boston and have his lung amputated. And yet the published data surprisingly shows that in many cases the PD numbers are better than EPP's. In truth, all surgical procedures to date could and should be considered "palliative."

Why surgery? Surgery designed to remove all possible tumor-invaded or contaminated tissue is radical surgery. Because mesothelioma is a diffuse tumor, and because surgery itself can spread the cancer cells, in order to eradicate all tumor the surgeon would have to cut out the ribs and intercostal muscles, the pleura, lung, trachea, pericardium, diaphragm, esophagus, superior vena cava, aorta, subclavian artery and vein, nerves, and vertebral bodies. [17] Essentially, whack out everything below the neck and above the gut, and you'll be "cancer free." You'll also be dead.

Both PD and EPP are controversial in that no randomized clinical trial validates either over the other, or even over no treatment at all. The medical benefit of EPP over PD has never been shown, although there are good indications that PD is associated with longer survival. Some surgeons perform both the EPP and the PD. Indeed, Boston is regarded as the home of the EPP, but recently Dr. Sugarbaker's team has been offering the PD as well. How does a "switch hitter" surgeon decide which operation is best? Dr. Harvey Pass of NYU has said he can't really tell until he pops the hood and takes a look inside. Apparently, the more "bulky" a tumor is, the less inclined the surgeon is to do the PD. The problem is that there is no standardized "bulk" threshold, i.e., how heavy and how extensive, questions which can probably only truly be answered if the tumor is cut away from the lung, either intraoperatively via the PD or later after the tumor-encrusted lung has been amputated. As with obscenity, for the bulk-sensitive surgeon, you just know it when you see it.

With the advancement of science, the sun usually sets on ultra-aggressive surgeries. Radical surgery for breast cancer, sarcomas, and colonic cancer have all evolved into narrower, meticulous operations. There is reason to believe that mesothelioma surgery will eventually conform to this approach, favoring the meticulous and careful surgery of the PD.

Even then, it's clear to this author that, just as not all EPP's are performed with equal skill, neither are all PD surgeries. At a recent MARF conference in Washington, D.C., an oncologist informed the largely patient audience that the PD was a relatively "quick" procedure. I've witnessed three PD's performed at UCLA. From opening to close, each took about ten hours of painstaking and meticulous surgery in order to remove all visible tumor from the chest, while sparing the lung, diaphragm, and pericardium.

During one procedure, another surgeon walked in, saw the massive operation, checked his watch, shook his head and half-joked: "I'll bet you could amputate the whole thing and get three of these operations done in the time it takes you to do one." It turns out that this jest hits close to the truth, as Medicare pays a higher reimbursement to the surgeon who does the EPP over the PD. Reminds me of what my journeyman boilermaker used to say back in the summers when I was a helper at the Exxon refinery in Baytown, Texas: "The less you work, the more you get paid."

Survival: the golden ring

Patients are hesitant to give up a lung, and this ends up being the strongest argument for them to go with PD. The issue of greatest concern to patients, "Will I survive the operation?" falls squarely in the PD camp. The numbers vary between surgeons, but the literature shows that surgical mortality for the PD is substantially less than the EPP (with less physiologic stress as well) [18] , while another study of 384 patients showed deaths from PD at 3%, as compared to 5% for EPP. [19]

In addition, doctors agree that it's only a matter of time before the tumor recurs. Patients tend to like their chances better if they have two lungs instead of just one. And the distinction between whether the tumor recurs "locally" in PD or "distant" with EPP is not terribly important, as the seeding of tumor during surgery makes virtually every body cavity "local." The lawyer should also note that since the asbestos fibers are distributed between the left and right lungs, if the left lung is removed (or vice versa), experience shows that the same pathogenic disease process will often rear its ugly head in the adjoining lung.

See Chart H, "Example of data misrepresentation." Bad data can be easily found in the very places that patients most commonly troll for answers. I co-founded the Mesothelioma Applied Research Foundation, but even this highly respected institution sometimes provides questionable data. On its website, MARF has posted a table that purports to correlate the median survival with various treatment modes. Without citing any author, it lists the survival for the PD as 13 months, rather than the correct figure, which is between 19 and 22 months depending on the institution or surgeon who does the surgery. That's how hard this is, and that's how difficult it is to come by reliable data.

Buying more quality life

Helping a mesothelioma client means more than winnowing out the best survival data. Clients want to know about quality of life. If their ship is going down, and their time is sorely limited, few want to spend precious days, let alone months, going through horrendous recoveries. They want treatment that will allow them the quality of life to enjoy the time left with their families and friends. We were unable to find a single study examining quality of life for different mesothelioma treatments, and even studies that only look at a single treatment modality rarely address quality of life associated with a given procedure. The upcoming UK trial discussed previously is groundbreaking because it also considers quality of life issues associated with EPP v. chemotherapy.

Consider doing more for your client than counseling him to leap into the first lifeboat. Helping him ask the tough questions to any doctor pushing a particular treatment benefits everyone. We may want to fixate on statistics and numbers, but clients may rank quality of life "intangibles" as their top priority. It's imperative that the lawyer and the client understand foreseeable complications no matter the therapy, and always have at the ready a back-up plan.

Alternative therapies: keeping the beast at bay

A few leading surgeons have taken steps to experiment with new compounds designed to delay tumor recurrence and manage it at tolerable levels. These doctors recognize that eradication may be the ideal, but until then it's best to try to tame the beast. Dr. Robert Cameron at UCLA has achieved promising results by having his patients take a daily injection of low dose interferon-alpha after surgery and radiation. In an unpublished study, he reported median survival of greater than 36 months for this particular multi-modal therapy.

Dr. Harvey Pass is another surgeon at the forefront of finding new and better compounds to delay tumor recurrence. As an example, Dr. Pass performed a clinical trial in which he had his post-surgery patients, either PD or EPP, take tetrathiomolybdate in pill form, an anti-angiogenic copper chelate compound that he describes as "maintenance" therapy. For stage 1 or 2 patients he has reported a time to progression of 18.5 months, which is encouraging but requires validation in a larger trial.

Although promising, neither study has been tested in a randomized clinical trial due to lack of funding. For more information on novel treatments, see Chart I, "Alternative therapies: Interleukin, interferon, and gene therapy."

Do surgeons rate?

Even with decent data, many patients will still base their treatment decisions on intangibles, such as the doctor's bedside manner, the doctor's enthusiasm, location of the hospital, the hospital's reputation, and scuttlebutt found on Internet chat rooms. "Harry saw Dr. X and he's been alive now going on 5 years," may be more convincing to a patient than a stack of peer-reviewed randomized clinical trials.

Consumer Reports hasn't yet rated mesothelioma surgeons, but getting specific information about surgeons is crucial to choosing the best lifeboat. We faxed, emailed, and made follow-up phone calls to the top mesothelioma surgeons in the country, and we applaud those who participated in our survey. We laud doctors who disclose that surgery alone doesn't result in a cure, who freely share their data with their patients and the medical community, and who advocate for more research to buy mesothelioma patients more time

The nonresponse rates of the doctors to whom we sent surveys also illustrate the problem: if I can't get complete surgical data leveraging my career and contacts in mesothelioma law and science, how much harder is it for patients to self-educate?

We also used Medline to research the published results of the surgeons we surveyed who did not respond, and contacted a total of about fifteen mesothelioma surgeons. In Chart J1, "Surgeons who responded to Worthington survey," we list as much baseline data as we could get from thoracic surgeons who treat meso. We also included a column to find out which surgeons testify for their mesothelioma clients. A patient should know whether their doctor feels comfortable sharing with a jury their expertise in treating the disease and assessing the damages. In Chart J2, "Surgeons who did not respond to survey, but for whom some published data was available," we list doctors for whom we found some data on the Internet.

No quick fixes

"MPM does not have one widely accepted treatment modality since none reliably results in cure." [20] This is the bottom line for mesothelioma science today: no cure. At the same time, there are certainly some slow fixes. Since few doctors have experience with the disease, one five-year survivor summed up the first step in a sound treatment plan as, "Get thee to an expert. And when you're done with him, get thee to another."

Lawyers can ask some simple, critical questions about survival rates, and encourage their mesothelioma clients to do the same:

1. What was the staging of the patients for whom the rate is claimed?
2. How was staging decided (PET scan, mediastinoscopy, open lung biopsy)?
3. How selective was the group for whom the rate is claimed?
4. Are these your rates, or someone else's?
5. For PD, what kind of PD do you do and is your goal a R1 resection?
6. How many mesos do you see each year? In your career?
7. How many mesos do you treat each year? In your career?

And even as they try to help clients guide their way through the roughest of waters, lawyers can get on the boat, help read the navigation charts, and even man the oars. Most lawyers who have been "in the business" for a decade or more have working relationships with mesothelioma doctors. It's important for lawyers to not only fund research, but also to drive it, by taking an interest in the research objectives of the doctor or institution they financially support.

Hope and heartbreak: Oregon case study

I recently had a 72 year-old, stage 2, lymph node negative union pipefitter client with high performance status who was extremely intelligent. I told him about the PD and the EPP, and he flew from his home in Portland, Oregon to UCLA to learn more. In the end, he wanted to be close to home, so he picked the local thoracic surgeon who promised a good result with the EPP, an operation the surgeon had performed only a few times. The surgeon amputated the lung and most of the diaphragm, and in the process probably seeded the abdomen with cancer cells. Within a few months, the tumors swelled within Greg's gut. He died savagely, painfully, and tragically on the second day of trial in Oregon, where the law caps the widow's recovery at $500,000, a number that had already been greatly surpassed in settlements. Prior to Greg's death, the local surgeon adamantly refused to testify live or by deposition, even when Greg's son, a medical doctor, asked him to. The surgeon did offer up a letter in which he stated that Greg had bad "recurrent" disease in his abdomen after he had performed "a large surgical resection in attempt for cure" - but, alas, "this cure has not been realized…"

I personally reviewed with Greg the risks of both procedures and emphasized the dangers of having an EPP performed by a thoracic surgeon with little mesothelioma experience. He never questioned the reliability of the data, nor did he express any regret about his decision. Would Greg have chosen differently-and be alive today-if he'd had access to a simple chart laying out the relative risks?

It's impossible to say. He may have been set against any surgery far from his home, and who can blame him? Quality of life means something different to everyone.

At the same time, I've always felt it was my obligation to inform my client about specific doctors and the data underlying their regimen. Unfortunately, there is no master document to which anyone can refer. We're often left with suggesting a clinical trial, or a doctor, or a hospital, with little more than anecdotal evidence. Institutions jealously guard their data, and few report in published journals. Even those who do find the time to write up their results do not always have their work accepted for publication. The small number of people who choose a given treatment under the same conditions (tumor staging, cell-type, and lymph node involvement, to name only three crucial parameters) make larger, randomized trials unlikely to happen any time soon. The more we try to make a good recommendation, the harder it gets, and the more we tend to shrink behind the vague generalizations of "mesothelioma help" web sites.

Helping clients live longer and better lives is the right thing to do. But for those who simply shrug at the moral imperatives, there's a bottom-line factor as well: a longer life means the ability to withstand grueling depositions, appear at trial, and have a shot at getting a full and fair recovery. We should help our clients get more life, just as we are duty-bound to present evidence of all past, present, and future damages.

This burden is one that many lawyers are unwilling to pick up because medicine evolves. Fifteen years ago there was no standard of care. Ten years ago EPP was the whisper choice. Three years ago Eli Lilly and a cadre of oncologists touted Alimta/Cisplatin as the standard of care without any serious objection from the medical community. Now, patients are asking hard questions about the EPP, and surgeons are looking more closely at the razor-thin margin of statistical significance that pushed Alimta into the anointed role of "FDA approved treatment." Trial lawyers have an interest in critically examining which option makes the most sense. Does this mean that we don the doctor's white coat? No. But if we're advertising ourselves as guides, we'd better be able to offer the best roadmap we can lay hands on, and let the chips fall where they may.

If we as lawyers make the affirmative choice to market to patients in their time of crisis, and to hold ourselves out as experts with inside information and connections to the medical world, if we speak to clients in tones of concern about their medical condition and suggest that we can guide them, then we must make good on the implied promise: we must be able to discuss chemotherapy, radiation, talc pleurodesis, palliation, and surgery, and make recommendations to doctors who we think can help, after we've done our "due diligence" on them. We must amass the data, analyze it, and we must share it. If we truly believe in it, we must be willing to put our money where our mouth is, and help fund good research by good doctors who truly care. And part of truly caring is being willing to testify for their patients in lawsuits for compensation.

Anything less is bad business, bad lawyering, and bad judgment.

Charts A1-A3: To live and die in Los Angeles Superior Court

The Law Office of Roger G. Worthington, P.C., has filed 37 living mesothelioma cases in Los Angeles, California, from July 19, 2000 to September 21, 2007. See Chart A1.

• Of those 37 cases, 15 clients, or 40.5%, died before or during trial, showing the desperate need for a speedy trial setting* and resolution of the patient's claim because the victim earns a chance at a full recovery only if he survives. For these patients, justice delayed is literally justice denied.
• Of the 15 clients, 11 clients, or 29.7%, died before or during trial. See Chart A2
• Of the 15 clients who died before trial, 4 clients, or 10.8%, died before they were even able to secure a trial date. See Chart A3.

15 died before their case was resolved (40.5%)

11 of the 15 died before or during trial (29.7%)

4 of the 15 died before securing a trial setting (10.8%)

Chart A1: 37 living mesothelioma cases filed in Los Angeles Superior Court, 7/2000-9/2007

*Under California law, the courts are required to set cases for trial if the plaintiff is over the age of 70 or the plaintiff produces a declaration in which a medical doctor opines that there is substantial medical doubt that the plaintiff will survive six months [C.C.P. §34 (d)]. Typically, the motion for preference is filed after the defendant appears in the case, which usually takes six weeks.

Chart A2: 29.7% died before or during trial

Chart A3: 10.8% died before even obtaining a date for trial

Chart B: Longer life, bigger bills: medical costs for 14 mesothelioma victims

As reported by the Doctor-Patient Alliance in their report to Congress of June 30, 2005, below is a list of actual medical costs for fourteen mesothelioma patients.

These figures do not include out of pocket costs, travel and lodging, or other incidentals such as OTC drugs. The complete letter can be found at www.mesothel.com/pages/alliance_policy_paper.htm

Chart C: Verified medical bills for nine RGW, PC living mesothelioma clients, 2007

* Died during trial. Under Oregon law, the decedent's estate's recovery is limited to $500,000 for non-economic damages. O.R.S. § 31.710

^ Medicare lifetime healthcare reimbursement of $2.1 million was surpassed. The jury awarded $12 million for pain and suffering and $600,000 for past medical expenses.

The above numbers were actual medical costs compiled while the client was alive at a time near trial, and do not include anticipated future medical costs.

Chart D: Cocktails and single shots: measuring drugs by the numbers

We were able to find treatment costs for Alimta/Cisplatin only, which is as follows: Every course consists of 6 cycles. A patient may receive up to three courses, for a total of 18 cycles. The estimated cost for one course is between $60,000 and $80,000.

Chart E: Best web resources for clinical trials

Chart F: Talc pleurodesis

Chart G1: Six recent studies on mesothelioma surgery-a toss up?

The following studies attempt to correlate median survival, surgical mortality, and prognostic factors with the PD and EPP.

Chart G2: The mother of all clinical trials?

Chart G3: Keep the lung or lose it? A comparison of the PD and the EPP

Chart H: Example of data confusion

The chart below was once on the Mesothelioma Applied Research Foundation's website. A copy of this article was sent to MARF by a patient, and MARF corrected the problem by removing the data. This is an example of how difficult it is even for experts and institutions dedicated to curing mesothelioma to provide 100% reliable data about the ever-changing landscape of this disease.

**The MARF table had no citations and incorrectly listed PD survival as 13 months, rather than the correct number of 22 as cited by Flores, Maziak, Martin-Ucar, Cameron, and other studies. There was no citation for a 30-month median survival for EPP or for any other data in the table. Former URL:

www.marf.org/Resources/Treatment/Treatment.html#Primary_Treatments

Chart I: Alternative therapies: Interleukin, interferon, and gene therapy

Chart J1: Surgeons who responded to Worthington survey

The following surgeons did not respond to the survey nor was any published EPP/PD median survival research available on PubMed: Robert Caccavale, Joseph Friedberg, Daniel M. Labow, David P. Mason, Daniel L. Miller, Valerie Rusch, , Stephen C. Yang