Legal overview: Lung cancer claims

By Howard Gutman






Lung cancer impacts over 175,000 people and is the second leading cause of death in the U.S. Smoking is a substantial cause of the disease, but occupational exposure to asbestos, silica and other carcinogens creates potential claims. Here's an overview of the legal issues and basic medicine involved with lung cancer claims.

Worker's compensation

In a worker's compensation claim, an individual alleges his disease was caused by exposure to carcinogens during his employment. Many industrial environments have involved dusts such as asbestos and silica; carpenters, plumbers and contractors not infrequently file claims. Claims typically involve multiple employers since each may have been responsible for part of the exposure and there is no way of identifying which actually caused the disease. With lung cancer thought to arise from 10-20 cellular mutations causing a disruption of the body's cell signaling network, many if not all of these exposures theoretically played some role. (The existence of duplicate copies of most genes and the body's sophisticated system of cell repair and cell death are generally sufficient to address a single mutation).

Claims of deceased workers can be more difficult since someone needs to identify the nature and source of exposure. Once exposure is identified, a physician is asked to provide a report causally relating the exposure to the disease.

Product liability and third party claims

A product liability or third party claim alleges an individual's exposure to a dangerous dust or substance caused or contributed to his disease. The most prevalent claim involves asbestos with medical studies showing its capacity to cause cancer in the lung. Multiple defendants are common and the plaintiff must establish his exposure to each defendant's product. This is done through the plaintiff's own knowledge or observations, those of co-workers or occasionally documents or other means. Under Sholtis v. American Cyanamid Co., 238 N.J. Super. 8, 19 (App. Div. 1989), plaintiff must satisfy the regularity and proximity exposure test though the meaning of these terms has been debated, and exposure constituting less than 5 percent of overall may still be sufficient for liability.

The plaintiff has the burden of showing that collectively asbestos was a substantial cause of his disease. Claims are frequently filed even if the plaintiff was a smoker and if he can demonstrate asbestos' role as a substantial cause, damages are allocated between asbestos and tobacco.


Silica is also a carcinogen though the evidence associating it with lung cancer is not as compelling as that of asbestos. Silica claims typically involve many of the same issues as asbestos. Can plaintiff demonstrate exposure to a particular product (s) and show the exposure contributed to his disease. Absence or inadequacy of warnings, instructions and recommendations for product use are a part of both cases. Along with a medical expert, an industrial hygienist or other expert may provide a report discussing the nature and levels of exposure, particularly if they exceed established standards. For example, a sandblaster might aver that he was exposed to substantial quantities of air-borne silica beyond threshold limits during his work and that the manufacturer failed to provide warnings of the dangers of this process, and recommendations for masks, ventilators and yearly pulmonary screening. Who has the responsibility for insuring safety conditions - employer or manufacturer - is a frequent question.

Lung cancer medicine overview

The disease is divided into basic categories non-small cell lung cancer (NSCLC) and small cell. NSCLC represents about 85 percent of cases and is comprised of adenocarcinoma, squamous cell, and large cell. The three types were categorized together because they were thought to behave in a similar biologic fashion and respond to treatment. Today much research focuses on subtle differences particularly in cellular behavior.

NSCLC, the focus of most claims is divided into stages 1-4. At stage one, the tumor is limited to the lung and the primary treatment is surgical removal of the tumor with a 60 percent 5 year survival rate. At stage two the tumor has infiltrated adjoining lymph nodes reducing survival though surgery is still used. At stage 3, the tumor has infiltrated distant lymph nodes. This stage is divided into 3A and 3B and complex surgery combined with chemotherapy used for stage 3A, while chemotherapy is the primary treatment for 3B. Long-term survival is problematic. By stage 4 the tumor has gone on to metastasize to another organ and survival rates are generally less than two years. Chemotherapy is the principal treatment for stage 4 with a combination of drugs employed if the patient can tolerate it. There is a partial response rate of about 25 percent but frequent recurrence and chemotherapy resistance.

Thus, non-small cell lung cancer is treatable in its early stages with surgery, but at its advanced stage chemotherapy is the principal treatment, though largely ineffective. Radiation is used at advanced stages to relieve pain and discomfort. Because a smaller lung tumor may not impact breathing or cause pain, the majority of tumors are sadly diagnosed at advanced states.

Initial diagnostics tools vary. The chest x-ray is still widely used but smaller treatable tumors can be overlooked because of the test's limitations. The chest Ct Scan is a far more accurate tool and a preliminary diagnosis of lung cancer is usually confirmed through biopsy.

The other category, small cell lung cancer, comprises about 15 percent of reported cases and is divided into limited and extensive. The tumors are usually diagnosed with the extensive categorization, initially respond to chemotherapy, but chemoresistance develops and the disease cannot be successfully treated. Improving the efficacy of chemotherapy and developing genetic therapies are goals of lung cancer research.

Evaluation of occupational claims

Various factors come into the assessment of claims. First, consider the type of lung cancer: Adenocarcinoma is most frequently associated with occupational exposure and some recent clinical studies show non-smokers developing it. Since many smokers also develop adenocarcinoma, the significance of the classification will be disputed.

Squamous cell and small cell are more related to smoking, though here too plaintiff and defense counsel will debate the issue. Finally there is a rare type of cancer related to asbestos exposure called mesothelioma. Almost all agree to its association with asbestos exposure and most claims are litigated based upon whether the plaintiff was exposed to a particular product and which defendant is responsible.

A tumor generally does not disclose its origin excepting rare cases where pathology shows asbestos bodies near the tumor. Some patients will have other lung disease such as asbestosis or silicosis, with their existence confirming exposure and strengthening the plaintiff's case. Conversely the existence of chronic obstructive pulmonary disease may point to the role of smoking in the development of the disease.

Damages involve lost wages, pain and suffering and other elements. Attorneys frequently assess the overall value of the claim, discount that amount by the smoking history and estimate their client's percentage of liability. Various settlement modalities are used though the failure of many companies in the asbestos industry has led some to defend claims where they believe smoking played the predominant role.

Medical malpractice

Since the timeliness of diagnosis can predict the success of treatment, medical malpractice claims also arise. Chest-x-rays where small tumors were missed or followup not performed are one frequent type. There are no protocols for lung cancer screening and a simple failure to provide a chest x-ray at an annual physical would not create a claim unless the patient's symptoms or other facts indicated the need for diagnostic testing. Interestingly liability is more likely to arise from an incorrectly interpreted x-ray than the failure to give one at all.

Family members sometimes point to errors in treatment of a patient with advanced cancer but deviations there frequently do not create claims because they did not alter the patient's long-term prognosis. Indeed many malpractice claims are assessed in reverse order, causation, then damages and liability, with the reasoning that expert assessment of the treatment is warranted only if there will be a substantial claim.


Lung cancer can create various types of claims which the attorney needs to evaluate. Familiarity with the basic medicine may help determine what claim cases exist and help assess their value.

Howard Gutman is the author of the book Lung Cancer and Mesothelioma now entering its second edition, and available at He is an attorney with offices in New Jersey and New York who handles litigation involving lung cancer