Originally published by LexisNexis
The onset of a novel coronavirus has swept the world by storm, challenging the capacity and durability of national healthcare systems and bringing respiratory fragility to widespread international attention. As of June 2020, there are over 6.53 million cases and over 387,000 deaths as a result of the pandemic and its corresponding disease, COVID-19 (https://covid19.who.int/). United States citizens make up roughly one-third of those who have lost their lives to COVID-19, demonstrating the severity of the situation and thoroughly testing the capacity of the nation’s healthcare infrastructure.
After months of state sanctioned quarantine measures which almost immediately brought the international economy to a halt, many governments are slowly reopening commercial sectors over the coming weeks. While necessary for economic stimulation, re-opening economies too soon endangers the progress made in reducing the spread of the disease. This constitutes an ongoing, serious concern for healthcare and governmental authorities. While the pandemic is still in its early stages, scientists and medical experts are working tirelessly to study and treat existing cases in a coordinated effort to combat its negative externalities. Unfortunately, the social, legal and medical consequences are only beginning to unfold. Specifically, the gradual return to the status quo not only threatens the global population through a potential resurgence of the coronavirus, but the persistence of COVID-19 (and any potential mutations) will inevitably lead to important legal decisions regarding healthcare coverage, decision making in healthcare facilities, and the rights of employers and their employees regarding the pandemic. These rulings will encompass many jurisdictions and affect nearly all sectors of the economy.
The forthcoming phases of the pandemic will signify a shift of primary focus from the healthcare sector to the legal sector, testing its ability to ensure the provision of care while maintaining the safety of citizens around the nation. The legal matters will target the potentialities of the pandemic and define the parameters of legal protections extended to all those affected by the coronavirus. The ways in which people are protected from the virus at home, at work and in public spaces will be challenged in court, testing the extensiveness of existing legislation and safety regulations in place to protect and ensure the health of all citizens. The outcome of these legal proceedings and court rulings will likely shape future health standards, which will be determined over the short to medium term and help to establish protocol for future medical emergencies.
Familiar Scenarios: Asbestos & Coronavirus Targeting the Respiratory System
Whereas the number of reported coronavirus cases and associated deaths are increasing daily, there are some at-risk groups who will remain vulnerable until a sufficient cure or vaccination exists. One of the most at-risk groups are those that have been occupationally exposed to toxic materials such as asbestos, whether or not they have been diagnosed with an asbestos-related disease (https://www.cdc.gov/coronavirus/2019-ncov/faq.html#Higher-Risk). Not only does COVID-19 constitute a significant threat to these individuals because of a lack of immunity to the disease, but the nature of the pandemic and its effects on the respiratory system could present a drastic increase in the severity of its symptoms.
Asbestos exposure can lead to many diseases and illnesses, the most common being asbestosis, mesothelioma, and abnormalities with pleural- thickening, development of plaques, and effusion. Together, these diseases constitute substantial “preexisting conditions” at risk for contracting COVID-19, as determined by the Centers for Diseases and Prevention (CDC). These asbestos-related diseases remain notoriously undetected over a lengthy latency period, and despite eventual diagnosis, can signify a compromised or weakening immune and respiratory system. For these individuals, COVID-19 can trigger the onset of asbestos-related conditions and cause severe side effects.
One key difference in coronavirus cases and related deaths and that of asbestos-related diseases is the latency period. Illnesses such as mesothelioma, asbestosis, or respiratory cancers can manifest anywhere between 20 and 40 years after initial exposure (https://www.atsdr.cdc.gov/csem/csem.asp?csem=29&po=11). Contrastingly, the coronavirus is highly infectious and contagious, and once airborne and ingested, can manifest in as little as a few hours (https://www.cdc.gov/coronavirus/2019-ncov/faq.html#Coronavirus-Disease-2019-Basics). The scarring incurred as a result of inhaling asbestos fibers can cause serious swelling and inflammation of the respiratory tissue, whereas the long-term effects of coronavirus are not yet known.
If occupational exposure victims were to struggle with COVID-19 during the latency period of an asbestos-related disease, disruptions to normal breathing and the presence of a persistent cough could worsen the overall condition of the respiratory system. Actions such as false diagnoses and aggressive treatments (through mechanical ventilators, for example) constitute another threat and increase the ability to cause damage and further deteriorate the lungs (https://www.europeanlung.org/en/covid-19/covid-19-information-and-resources/covid-19-info). Regardless of the symptoms, the pairing of an asbestos-related disease and COVID-19 have the ability to thoroughly overwhelm the body, especially the lungs. Even worse, the strain on the respiratory system could also increase the risk of developing lung cancer in the long run.
According to the American Lung Association, lung cancer is the most fatal cancer among men and women in the United States; there were over 154,000 deaths in America from lung cancer in 2018 (https://www.lung.org/lung-health-diseases/lung-disease-lookup/lung-cancer/resource-library/lung-cancer-fact-sheet). This accounts for 25% of all cancer-related deaths, and, sadly, is comparable to the coronavirus pandemic fatality rate in the United States (https://www.lung.org/lung-health-diseases/lung-disease-lookup/lung-cancer/resource-library/lung-cancer-fact-sheet). Lung cancer is typically caused by a mutation of cells in the lungs, such as the development and subsequent growth of malignant tumors that prevent or impair breathing capabilities. Cancerous tumors that originate in the lungs can spread throughout the body through blood or natural fluid in lung tissue. Patients diagnosed with lung cancer have blocked air passages which render parts of the lung incapable of breathing and more prone to infection (https://www.lung.org/lung-health-diseases/lung-disease-lookup/lung-cancer/learn-about-lung-cancer/what-is-lung-cancer/lung-cancer-basics). This can pose a serious condition that can worsen if COVID-19 is contracted. This is particularly troubling because there is no way to reverse or completely heal the damage caused by COVID-19 in the lungs, which is the same case when asbestos fibers are introduced into the respiratory system.
The Largest Running Tort & Patients at Risk
In addition to the medical similarities between coronavirus and asbestos-related diseases, the legal situation of the increasingly large pool of occupational exposure victims will prove to be vaguely similar to victims of COVID-19 that pursue litigation against negligence or contract the disease in a hazardous labor setting. As previously mentioned, this danger is amplified when economic sectors reopen. Returning to the workplace also implies the provision of sufficient protective equipment, inspection of spaces, and proper sanitization. This will constitute some of the major focus of litigation, as protection of workers falls under national legislation and major health and safety regulations. This also stipulates an employer’s responsible elimination of hazards on worksites, as well as proper reporting, and access to information. In addition, workers have rights to refuse to work in an environment where their health or personal safety is compromised, which could also be challenged in some jurisdictions.
In the initial phases of the coronavirus pandemic, there were many news reports and studies on healthcare workers who contracted COVID-19 in work environments such as in hospitals, medical clinics, and assisted living residences. As a result, those employees who choose to pursue litigation will have their claims assessed and eventually heard in court, where key findings will determine liability amid a global pandemic. As these processes begin, lawmakers and legal practitioners will rely on some of the groundwork made in asbestos tort law, especially through cases involving workers compensation claims or those that target negligible employers or commercial entities.
There is a long, convoluted history of occupational exposure torts nationally and internationally. In the United States, occupational exposure constitutes one of the largest and longest running mass torts in the history of the United States judicial system (https://www.rand.org/pubs/monographs/MG162.html). The decades-long progression of legislation and policies that address occupational exposure has resulted in the establishment of legal precedents that are wide-ranging and all-encompassing. While certain environmental protection groups have already shifted their focus to occupational hazards related to COVID-19, there is already a considerable foundation to build off of from successes achieved by workers unions and consumer protection agencies in their plight against negligible asbestos exposure, which originated in the 1970s as asbestos-related diagnoses were beginning to become commonplace (https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1564458/).
Since then, the United States Environmental Protection Agency (EPA) has implemented laws and regulations to protect citizens from improper exposure in the workplace. Laws such as the Asbestos Hazard Emergency Response Act, Asbestos Information Act, and the Asbestos School Hazard Abatement Reauthorization Act outline specific and strict measures to protect buildings such as residences and schools (https://www.epa.gov/asbestos/asbestos-laws-and-regulations). These laws and regulations outline the proper disclosure of asbestos ingredients in manufacturing and aim to increase transparency regarding the presence of asbestos. Notably, they can be directly applicable to situations where COVID-19 is spread in an occupational setting, as employers are legally bound to inform, report, and assess conditions that produce potentially hazardous situations for their employees or those with whom they engage in business.
In the past, occupational exposure was most commonly associated with civilian and military construction or the electrical and automotive industries. With coronavirus, exposure will also affect those employed in commercial sectors or settings where individuals work alongside or in close contact with others. This represents a shift in the at-risk population of occupational exposure from industrial and manufacturing sectors, to business and commercial sectors. The CDC outlines and recommends certain measures such as social distancing and the use of medical-grade protective equipment to decrease contamination and the spread of the virus (https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/asthma.html). These measures are of particular importance for those that have endured occupational exposure to toxic materials due to their already weakened respiratory and immune systems.
Legal Procedures Pertaining to Asbestos & Coronavirus
There are considerable similarities between asbestos-related diseases and the novel coronavirus, especially in regard to the upcoming legal procedures that will arise regarding the latter. Legal analysts anticipate a surge in litigation concerning COVID-19, especially in medical malpractice, negligent injury or occupational exposure.
Through appropriately filed claims and litigation within the statute of limitations, patients diagnosed with asbestos-related diseases have been entitled and eligible to receive financial resources to offset and alleviate the costs incurred as a result of extensive treatment and care. Those that experienced exposure while under contractual employment can receive a settlement if the exposure occurred in a hazardous work environment or through negligence without proper warning. Litigation focused on occupational exposure has resulted in the ratification and passing of laws and regulations that require employers to properly and promptly warn and disclose of toxic and hazardous material on site. Additionally, these protections grant employees the right to refuse to engage in labor under adverse conditions where their health and safety can be compromised. As will soon be played out in jurisdictions across the country, these same provisions should be applied to those that have similar experiences with COVID-19.
As such, many legal practitioners are already making headway into such claims and potential lawsuits, shifting their focus from asbestos-related exposure to COVID-19. Attorneys that represent victims of asbestos-related diseases and illnesses are specialized practitioners that have significant experience representing clients that incur occupational injuries, toxic exposure and wrongful death. Most likely, this class of attorneys and their respective firms will engage in advocacy and represent COVID-19 victims that have valid claims against healthcare centers, employers, merchants or insurance companies.
While the current stage of the coronavirus pandemic has tested the medical capacities to address and attend millions of victims, the next phases will soon determine legal liability and what protections are extended to patients, employers, employees and consumers. With time, the emergency measures taken by federal and state governments will show their demonstrated ability to protect citizens and impact the spread or containment of the virus. The transition back into normal business practices will not come about in the short term, but over the course of the next months and years. The rulings in these landmark cases will determine protocol to be implemented in the case that another international pandemic arises.
The similarities between the novel coronavirus and respiratory conditions experienced as a result from occupational exposure to toxic material will open the floor for a more cohesive debate on legal protections granted to citizens. Additionally, the expected volume of claims against negligent employers or healthcare professionals regarding actions or inactions in the wake of the coronavirus pandemic will determine the specific avenues in which victims can receive financial and legal support to receive the treatments they need.
Hopefully, any settlements or compensation packages will help finance advanced and innovative treatment to reduce the pain and suffering for those affected by COVID-19. The coronavirus pandemic has important medical and social implications for those individuals and the legal ramifications will soon surface and determine important legal protections and establish protocol for years to come.
[Editor’s Note: Kevin McKie is a lawyer at The Environmental Litigation Group, P.C., a partner of The Law Center, a national network of law firms with decades of experience in advocating for those who have suffered from personal injury, asbestos-related diseases, motor vehicle accidents and more. Mr. McKie represents thousands of clients around the country in complex environmental toxic tort cases in pursuing their legal remedies. He works on individual lawsuits and on large community exposure cases, but he has also represented businesses in environmental matters. As a former elected official, Kevin served for 2 years on the Board of Directors for the Birmingham Water Works Board, one of the country’s largest water systems. Any commentary or opinions do not reflect the opinions ofThe Law Center or LexisNexis®, Mealey Publications™. Copyright © 2020 by Kevin McKie.]