by Dr. Tom Fariss
Cancer is a common medical diagnosis and is the second most common cause of death in the U.S. It is also a topic of interest for attorneys who specialize in a number of areas, such as environmental law, product liability, negligence and medical malpractice, toxic torts, and employment law. Occupational cancer, which is cancer caused by or associated with an exposure at work, presents a number of challenges to attorneys who might be unfamiliar with the science and the principles of causation. The following is a brief overview of some of the key points and pitfalls in evaluating a potential case of occupational cancer.
First – What is the diagnosis? Has the diagnosis been confirmed? Typically, confirmation of a diagnosis of cancer requires a biopsy, with tissue samples sent for definitive analysis by a pathologist. This is the “gold standard” for a diagnosis of cancer, although pathologists can disagree on the interpretation of a biopsy.
Second – What is the exposure? Are there known carcinogens present in the workplace? Can the amount of exposure (the “dosage”) be quantified in any reliable way, such as by industrial hygiene monitoring of the work environment, personal monitoring, or biomonitoring (medical testing)? Were any medical evaluations or medical surveillance programs conducted of employees in the workplace? Is the duration of exposure known? If exposure cannot be reliably quantified, is there other evidence that can be used to suggest or presume exposure? In some well-established occupational cancer cases, statutory rules (“rebuttable presumptions”) have been implemented in various jurisdictions which give workers the benefit of the doubt regarding potential exposure to known carcinogens in their workplace, based on their job description or title. Examples include firefighters with lung cancer; railroad workers with asbestos-related disease; and Vietnam veterans with service-related cancers tied to Agent Orange exposure.
Third – Once a cancer diagnosis has been confirmed, and the exposure(s) identified, developing a solid case for causation and linking the exposure to the disease may be challenging. Is the association between a particular exposure and the specific type of cancer already well-documented in the scientific literature and generally accepted by the scientific community? If so, the requirements of “general causation” have likely been met. Organizations that identify known carcinogens and the specific cancers they are associated with include the International Agency for Research on Cancer (IARC); the U.S. Environmental Protection Agency (EPA); the National Toxicology Panel (NTP); and others.
Fourth – Even if general causation has been established, the circumstances of the particular case (“specific causation”) need to be evaluated to ensure that causation is plausible and that principles of science and epidemiology are not violated. Did the exposure occur before the diagnosis was made? If not, a causal relationship is not possible. Was the latency between exposure and cancer of appropriate duration? Most cancers have minimum latencies of 10-15 years between exposure and development of disease; mesothelioma following asbestos exposure can have a latency of 20-40 years or more. Additional elements used to assess causation for chronic diseases are the “Bradford Hill” criteria, which represent a systematic approach to establishing a causal relationship between an exposure, or set of risk factors, and a disease, while eliminating factors that introduce bias, confounding, and errors in analysis.
Finally – Occupational cancers are thought to be uncommon relative to cancer diagnoses in general. It is estimated that 4-6% of all cancer diagnoses are caused by or associated with occupational exposures. Strong cases for occupational causation are more likely to involve unusual or less common types of cancer; solid evidence supporting general and specific causation; statutory rules favoring employees with presumed exposure; and clusters of unusual cancers in a well-defined population linked to a known or likely carcinogen.
To earn CLE credit while learning about causation in occupational cancer, please join Dr. Tom Fariss, Director of Occupational Health at Elite Medical Experts, for a 90-minute CLE: Did My Job Cause Cancer? Establishing and Disproving Causal Links to Cancer in the Workplace. This accredited CLE sponsored by NBI will stream live on December 17, 2020, at 1:00 PM Central (2:00 PM EST). Please contact Elite Medical Experts or NBI to learn more.
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About Dr. Tom Fariss: Dr. Tom Fariss holds 16 state medical licenses and is Board Certified in Internal Medicine (ABIM) and Occupational & Environmental Medicine (ABPM). He recently served as the Vice President of Global Health at Kimberly-Clark Corporation where he was responsible for overseeing occupational health for over 41,000 global employees. He now leads the Occupational Health Division of Elite Medical Experts.
About Elite Medical Experts: Elite Medical Experts is a physician-led consulting firms specializing in any issue at the intersection of Medicine & Law. Elite also hand selects leading Professors of Medicine and Surgery to serve as expert witnesses. With over 8000 engagements in all 50 states and internationally, Elite is a first-stage strategic resource for trial attorneys and their clients. To learn more about Elite, please visit EliteMedicalExperts.com, or call [888] 790-1399.
About NBI: The National Business Institute (NBI) is the nation’s largest CLE provider with over 18,000 hours of live and on-demand CLE. By aligning with leading legal authorities across the U.S., NBI curates a diverse catalog of leading-edge seminars spanning every practice area and niche of the law. To learn more about NBI, please visit NBI-sems.com, or call [800] 930-6182.
