Letter from Michael R. Harbut Opposing Action on Pending Asbestos Proposals


(248) 559-6663
FAX (248) 559-8254


January 27, 2000

Mr. Ronald Szabat, Esq.
Secretary, Council on Legislation
American Medical Association
Washington, D.C.

Dear Mr. Szabat:

This letter is written in opposition to the issue before the Legislative Council promoted by Dr. Edward Rosenow, Past President of the American College of Chest Physicians, to support pending legislation which would revise the existing methods of settling legal disputes which grow from a diagnosis of asbestosis.

Although most informed persons feel the existing legal approach is in desperate need of reform, this letter does not speak to the legal matters raised. It instead speaks to those matters not addressed by Dr. Rosenow, and those to which physicians may speak with authority -the medical issues, which of course should be the heart of the matter at the AMA, as well as it should have been at the ACCP.

It is painful for me to write this letter. I am Chair of the ACCP's Occupational and Environmental Health Section. This section comprises ACCP members with an interest in occupational and environmental health. I am also a very proud member of the AMA.

Neither I, nor any member of our Section's Steering Committee was consulted prior to ACCP Legislative Council endorsement of this Bill. No person identified by Dr. Rosenow as being one of the key figures in this endorsement has ever indicated an interest in our Section adequate to even be included on our mailing list.

Dr. Rosenow has written to me that the primary motivator and ostensible architect of the ACCP position is Dr. Hans Weill, a longtime and famous expert witness for the "asbestos companies." Furthermore, Dr. Rosenow explained to me that if Dr. Weill were for this legislation, that was basically good enough for him, and that he and others who were not identified were privy to non-reviewed, non-published data collected by Dr. Weill, which they found convincing in this matter.

This special regard for Dr. Weill is revealing of the nature of Dr. Rosenow's perfunctory dismissal of Dr. Oliver's testimony at the House Judiciary Committee. Dr. Oliver is a respected specialist in asbestosis who has testified on behalf of patients, and who has affirmed to me that she is not receiving any money from plaintiff's attorneys in this matter.

Of the many medical practice consensus statements the ACCP has adopted in regard to the elements of diagnosis and subsequent treatment, this is the first time a lengthy process of internal peer review and discussion has not occurred. It is the first time that no sub-specialist in the field in which the statement was issued was not consulted.

When I asked Dr. Rosenow how this could happen, he explained it as an "oversight." Others in the College have admitted "fault" for leaving my Section "out of the loop." I'm still trying to decide what to call it.

Dr. Rosenow did offer participation in a teleconference with a chance to make "4 or 5" specific criticisms of the Bill. I declined on an ethical basis. This issue is certainly as far-reaching as any ACCP Consensus Statement and as such, should be subject to the same process as all previous statements involving health and science policy. All appropriate experts should be asked to help formulate a statement based on the science and their clinical experiences. I suggested that participation in any final position be limited to physicians who had published on asbestosis, or who had seen an average of 5 asbestosis patients per year for the last 5 years, excluding any expert witness, legal advocacy, patient encounters.

Dr. Rosenow's response was to direct me to no longer communicate with him until such time as I was willing to do it his way.

The ACCP "endorsement" before you is hollow. It does not even meet the criteria to be published as a peer-reviewed case report in CHEST.

Secondly, the Bill does contain de facto practice guidelines. It defines asbestosis, cancer etiologies in relationship to asbestosis, and sets forth specific criteria to reach these diagnoses. Regardless of one's agreement or disagreement with these criteria, this Bill represents a definition of a disease (and by generally accepted practice, treatment and non-treatment for that disease) as defined and enacted by the United States Congress. What are patients and physicians to do if the law is in conflict with the science? Or if the science advances more quickly than the legislative process? This is dangerous territory and deserves more contemplation that this particular piece of legislation allows.

Thirdly, the Bill's medical reimbursement limit of $500.00 will cause a cost-shifting of medical care for asbestosis to private insurers and Medicare. Because asbestosis is simply pulmonary fibrosis caused by asbestos, it may manifest at different times as chronic obstructive pulmonary disease (usually of the small airways), hypoxia, pulmonary fibrosis, dyspnea on exertion, etc. It is also often "coded" as such, allowing payment by third parties. There is already an enormous disincentive to code illnesses caused by asbestos as asbestosis. This Bill is somewhat miraculous in that it virtually guarantees to end the disease overnight (at least for statistical purposes) by insuring that hospitals, physicians and oxygen suppliers won't get paid if the disease processes are coded as "asbestosis".

That leaves payment up to everyone except those who caused the illness.

Finally, the medicine, epidemiology, industrial hygiene and "science" of the Bill reflect a particular legal perspective. It is not that which is found most convincingly and thoroughly in the medical literature. The Bill's provisions have very little relationship to actual clinical experience, outside that seen as paid legal advocacy. To this end, I have attached a brief rebuttal of these portions of the Bill which I have cosigned with a number of other nationally recognized medical experts in asbestosis.

No one was paid to sign it, write it or circulate it. Additionally, I was not paid to write this letter.

Because I am a physician, my first duty is to protect my patients. Through this letter, I hope to help do that. Please do not endorse this Bill.



Michael R. Harbut, MD, MPH, FCCP
Chair, Occ/Env Health Section, American College of Chest Physicians
(for id only)
Clinical Assistant Professor of Medicine, Wayne State University
Section Chief, Occ/Env Medicine, Providence Hospital, Southfield, Mi.