When Asbestos Exposure and COVID-19 Intersect | Texas Lawyer – Texas Lawyer

Kevin McKie is an attorney at the Environmental Litigation Group and a partner with the Law Center.

The list of individuals who are especially at risk regarding COVID-19 infection is oft-cited in the media and well-known to many. Some common examples included on this list are the elderly, the immunocompromised and those with preexisting lung diseases. However, there is relatively little information on the intersection of asbestos exposure and COVID-19 infection, despite the clear connection in risk factors. For example, the Environmental Protection Agency (EPA) highlights lung cancer, mesothelioma and asbestosis as the three major health effects of asbestos exposure; all of which can be classified as preexisting lung diseases. Moreover, in 2017, the CDC reported that the number of mesothelioma related deaths increased from 1999 to 2015 with significant increases among persons aged 85 years and above. The latency period for asbestos exposure and the development of mesothelioma is 20 to 71 years. The CDC study indicates that many who were exposed to asbestos years ago are only now developing health effects.

Who Should Get Screened?

Due to the ubiquitous use of asbestos in the mid-20th century and the latency period for developing asbestos-related medical conditions, many are unsure if they should get screened for asbestos. However, certain occupations have been linked to higher levels of asbestos exposure due to the workplace environment and products being made. For example, researchers for the American Academy of Family Physicians noted key sources of asbestos exposure, indicating that some industrial workers and veterans may be at higher risk. These cases of occupational exposure occur from working with asbestos-containing products such as: flight materials, electrical products, shipping materials, brake linings, building materials and others. Although the EPA has reduced the number of asbestos containing products since the 1970s, many have been exposed prior to EPA regulation, while others are exposed through legacy uses. It is more likely that industrial workers and veterans have been exposed years ago because environments such as shipyards, steel mills and refineries are related to “past direct occupational exposures.”

How COVID-19 Affects Screening

Industrial workers and veterans who were exposed to asbestos may be asymptomatic for decades because the asbestos dust remains in the lungs long after exposure and slowly causes damage. This lung damage can lead to diseases such as asbestosis, lung cancer, mesothelioma, COPD and pleural plaques. Therefore, the National Heart, Lung and Blood Institute recommends screening for asbestos because a doctor may be able to slow the disease, ease the symptoms, or prevent future complications. Unfortunately, the effects of the COVID-19 pandemic on the medical system have also affected the screening and treatment of asbestos-related diseases. Patients may be less likely to go to the hospital, while doctors may delay X-rays, chest CT scans, pulmonary function tests and other recommended diagnostic procedures. Similarly, people with prescribed treatment, such as chemotherapy or surgery, may experience delays or gaps in their treatment. According to a study done by the American Cancer Institute, 51% of the surveyed cancer patients reported COVID-19 related disruptions in their care.

How COVID-19 Affects Claims

The COVID-19 pandemic also affects toxic tort claims for occupational exposure to asbestos. For example, in Handling Toxic Tort Litigation, 57 Am. Jur. Trials 395 § 83 (2020), Mark S. Dennison and Warren Freedman state that an essential element in toxic tort litigation is that the plaintiff had or does have an asbestos related illness, disease or condition. Therefore, despite the existence of asbestos trust funds for veterans and industrial works, the delays in screening and testing due to COVID-19 will prevent many from joining toxic torts suits. This problem is compounded by the shortage of personal protective equipment (PPE) that industrial workers need to reduce the risk of exposure. As states begin to reopen, the lack of PPE may increase the risk of future disease claims and medical monitoring damages. Medical-monitoring-based damages award compensation for future medical costs, while an increased risk of future disease claim is based on the emotional distress associated with the fear of a future disease. (Handling Toxic Tort Litigation, 57 Am. Jur. Trials 395 §§ 13, 31 (2020)). The pandemic’s economic impacts may also affect latent asbestos claims, as an increasing number of businesses file for bankruptcy. For example, in In re Energy Future Holdings Corp, 949 F.3d 806 (3d Cir. 2020), the latent asbestos plaintiffs were barred from bringing their claim against a bankrupt business for failing to file before the “bar date.” Although the case did provide some protective measures for latent asbestos claims, it is important to stay up-to-date on the financial status of defendants.

Getting Treatment Safely

Given the strain COVID-19 has put on our medical system and the higher risk of COVID-19 exposure, it is important to take all necessary precautions when getting treated for asbestos-related medical conditions. It is generally recommended to avoid in-person doctor visits to reduce COVID-19 exposure, but it is still possible to stay informed. The CDC recommends calling your doctor if you have concerns about a preexisting condition. Given the long latency period in developing asbestos related medical conditions, the doctor may be able to evaluate whether an in-person visit is necessary based on your symptoms, and knowledge of past asbestos exposure. For those currently undergoing treatment and in need of in-person treatment, follow CDC guidelines on how to reduce your risk of exposure and keep (at least) a two-week supply of needed medication. It is crucial for those with underlying medical conditions to sanitize their hands and surfaces often, wear masks and gloves, avoid touching faces and surfaces, and maintain at least six feet of space from others.

Kevin McKie is a lawyer at the Environmental Litigation Grou, a partner of the Law Center.

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