Abbreviations--- Summary of paper (including list of pitfalls)--- Introduction to paper--- Pitfalls #1-7--- Pitfalls #8-15--- Discussion--- References
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In general, pitfalls in diagnosing OLD arise from one of two basic reasons: physician bias or inadequate evaluation. It would be naive to assume that bias does not play a role in what is inherently an adversarial situation. The "no-fault" nature of workers' compensation does not inhibit litigation, since the employer's Workers' Compensation premiums rise when a claim is sustained. As a result, many, if not most, occupational lung disease claims are contested.

Morgan (1995) has written:

". . . in the U.S. at the present time an attempt is being made to relate virtually all naturally occurring disease to occupational exposure, and suits for all types of so-called occupational injury and illness are extremely common. The present system has done much to undermine the public's faith in the legal and medical professions, but since vast sums of money are involved, it is likely to persist at least for a time."

Thus, in the present litigious climate, one could argue that many of the examples in this paper are not pitfalls at all, that they merely reflect purposeful mis-statements, distortions or omissions to satisfy the hiring attorney's needs: either to turn a non-disease, or a non-occupational chronic disease, into an occupational condition; or to nullify a legitimate occupational condition. Such intentions are probably true some of the time, but more often, I think, the pitfalls discussed in this paper are unintended, and the consequences unwanted.

* * *

There is a lesson here for both physicians and attorneys. Should physicians assume the position of lawyers -- able to take either side of a case and argue it in a way that is provably biased? I don't think so. Physicians should evaluate OLD objectively no matter who is paying for the opinion. Such a position in no way obviates becoming a paid expert. Indeed, "when called upon on behalf of either defendants or plaintiffs, physicians have an obligation and a duty to participate in the justice system as expert witnesses." (ACCP 1990) The author has written reports and testified on behalf of both patients and companies (and, yes, become trapped in a few pitfalls himself!). The point is to evaluate each claim thoroughly and fairly, and not to take a position against one's better medical judgment.

When colleagues in medicine question a diagnosis it is usually in a friendly context. Diagnosis of OLD is different. Inappropriate and unsupported claims can expect to be challenged, and when that happens even the most casual declarative statement will come under intense scrutiny (Richman 1989; Richman 1990). Other physicians will likely be paid to argue against the diagnosis. The physician may be deposed, his or her background explored, credentials examined, integrity called into question. A physician who takes a medically incorrect or obviously biased stand can actually harm the side he is trying to help, especially if his testimony becomes discredited.

The best way for a physician to survive intense scrutiny is to anticipate it. If a physician is asked to review a case of possible OLD, the problem should be approached like a review for a medical journal or a medical grand rounds presentation. What are the facts? Is all the pertinent history included? What is supportable and what is not? Is the assessment consistent with what is currently published about the problem? What conclusion can be comfortably presented to colleagues in an open scientific forum?

Medicine is an art and legitimate controversies exist about many diagnoses, including OLD. The literature is replete with articles about the difficulty in attributing cancer to asbestos exposure (Browne 1986; Cullen 1987; Mossman 1989) or silicosis (Goldsmith 1982; Heppleston 1985); in differentiating occupational from intrinsic asthma (Richman 1990; Chan-Yeung 1988); in deciding if asbestos is the cause of pleural thickening (Rosenstock 1987) or effusion (Epler 1982), etc. Physicians live with uncertainty in both diagnosing and attributing causation in these and many other diseases. It is only in the legal world that physicians are asked to state a diagnosis (or its cause) as "more probable than not" and, if need be, swear to this statement under oath.

The fact that OLD also involves the legal profession should not affect one's objectivity or clinical approach. Physicians have an obligation to themselves and to the larger society to help assure that patients deserving compensation get it, and that claimants without a compensable occupational illness are not unjustly rewarded.

* * *

As for attorneys, they are paid to be advocates. Can they be faulted for relying on a physician's report in favor of the client, no matter how incorrect, sloppy or biased it may be? Yes, in one unarguable aspect: if the report ends up hurting the client, by involving him in a series of futile evaluations, depositions and court dates.

The author has seen, on numerous occasions, claimants put through unnecessary and expensive re-examinations because an attorney sought to justify a diagnosis initially made in a patently shoddy report by an unqualified physician. On many occasions clients have expressed dismay at the multiple series of chest x-rays, blood tests, and doctor visits requested of them, and opined they should never have started the process. I have also been involved in three cases that went to trial lasting, respectively, one day, one week, and two weeks, where there was not a shred of evidence to support any occupational diagnosis. All three cases were predicated on reports full of contradictions and incorrect statements, and the claimant lost in all three instances.

What is the attorney's obligation to his or her client? From a physician perspective, it seems that a smart attorney will know when the expert physician, hired to make a diagnosis, in fact weakens a case. No doubt this realization happens quite often, and many claims are dropped or settled quickly for a small amount. Yet some attorneys seem to drag their hapless claimants through the medical evaluation process, and then through the administrative and civil courts, in a futile attempt to justify a diagnosis without merit. An advocacy position so encumbered can trap not only the physician, but also the attorney and the claimant.



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Abbreviations--- Summary of paper (including list of pitfalls)--- Introduction to paper--- Pitfalls #1-7--- Pitfalls #8-15--- Discussion--- References
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