For mesothelioma patients, the crux of the crisis is how to buy more time.
How can we as lawyers help, if at all? Medical, logistical, and philosophical
questions abound: how bad is the tumor? What treatment options are there?
Are they any good? How much do they cost? Is one form of surgery better
than another? Is surgery even necessary? If my client gets radical treatments,
can he still endure a grueling two-week deposition? Can he make it to
trial? Can he still play golf, hike, bike, or putter with his grandkids?
What's his quality of life going to be? How long has he got
Where does the patient or the lawyer look for answers when the data are
confusing, when there are no clear answers, and when there is no standard
of care? Where do you look for answers when the doctors may not even know?
Let's step into the breached hull of a mesothelioma patient and try
to pick the best lifeboat. He's just been diagnosed. Water is pouring
in. Now what?
Searching for a lifeboat on a sinking ship
If the ship is going down, your first instinct is to grab for the nearest
lifeboat. If you had time to reflect, though, you might ask: how bad is
the breach? How much water have we taken on? Can it be repaired? How fast?
Are the bilge pumps working? And what about the lifeboat itself? Is it
stocked with provisions? Is it seaworthy? As with the sinking ship, with
asbestos cancer you need to assess or
stage the damage at the same time that the damage is escalating out of control
Staging a tumor is complex stuff. Mesothelioma doesn't thrive as a
solitary ball-type nodule. It's diffuse. It spreads, usually within
the confines of the pleural space - if the patient is "lucky"
- otherwise, by itself or during surgery (including needle biopsy) it
can spread like wildfire. Oftentimes we won't truly know the proper
stage until after radical surgery, when lymph nodes are dissected, as
few doctors require mediastinoscopy before surgery, and PET scans, though
helpful, are not reliably diagnostic of nodal invasion. There are at least
five different types of meso, some more amenable to treatment than others,
and there are at least six different tumor staging systems with no uniform
use among doctors. It's like trying to get the same answer from six
different people, none of whom speaks the other's language. Regardless
of the staging system, common sense teaches that the earlier the stage,
the higher the survival on average
Let's say we have an accurate fix on the size, type, and extent of
the pleural cancer: an early stage epithelial tumor that hasn't invaded
any surrounding organs or any lymph nodes, and the patient is a male in
his early 60's. Let's assume further that the patient is aware
of multiple options such as chemotherapy and radiation, but at the outset
wants desperately to rid his chest of the beast. Viscerally, he wants
it out, he wants an operation, and he wants to rage back against the disease.
Destroy the invader.
Crush it. Get it out
Our patient's threshold decision is whether to hook up to chemotherapy
or jump right into radical surgery. He must make this decision while his
ship is taking on prodigious quantities of water. Amidst the mayhem, he
must get to and choose a lifeboat. Even if the waters were calm and he
had the luxury of time, my nineteen years of watching how these decisions
get made convince me that his decision would still involve a throw of
the dice compared to other cancers.
The problem is a lack of reliable data. Surgeons at the forefront of mesothelioma
treatment are few and busy, often with little incentive to publish the
results of their work. Since mesothelioma is an uncommon cancer, research
money is scarce. Everybody talks about the merits of randomized clinical
trials, but few treatment centers have the funds to finance them, and
fewer still have been willing to set aside ethical concerns and design
and recruit for one.
Another theory is that some centers or doctors may worry that their "treatment
program," if subjected to rigorous outside scrutiny, could be shown
to be ineffective. Those who do publish are always at risk of criticism
for "cherry picking" because the pool of patients is so small,
the outcomes so often fatal, and because a patient - if he's lucky
- may over a 3-4 year survival period seek different treatments from different
hospitals. Very few surgeons or oncologists "quarterback" their
patient from start to finish. If it's a daunting obstacle for doctors,
it's even more daunting for lawyers who wish to engage.
A common approach is to look at the work of leading surgeons and pick the
surgery that advertises the longest survival time. Unfortunately, surgical
studies are typically retrospective rather than prospective and lack a
non-surgically treated comparison group, so it's impossible to say
whether surgery actually helped. The advent of chemotherapy, used alone
and used in combination with surgery, opens other vistas…and new
horizons of uncertainty.
Deciding which lifeboat to take isn't just hard for the patient, it's
hard for the doctor as well. Treatment ranges from doing everything to
doing nothing. If the doctors are divided, how can a lawyer possibly give
sound advice? And if the doctor and lawyer are confounded, how can a patient
ever hope to get through the maze?
An oncologist who spoke at the 2007 Mesothelioma Applied Research Foundation's
annual symposium described pleurectomy / decortication as "quick
and easy, but unwarranted." A client of mine in Iowa said that his
treating physician described the PD as "completely useless."
Others call PD "palliative only," or slightly better than doing
nothing. No randomized, controlled clinical trial has ever been conducted on
any surgical option for malignant mesothelioma, much less reached any of the
above conclusions specific to PD.
Flores R, Zakowski M et. al., Prognostic factors in the treatment of malignant
pleural mesothelioma at a large tertiary referral center, J Thorac Oncol., Oct 2007.