A personal injury lawsuit over asbestos exposure usually starts after a plaintiff learns he or she has an asbestos-related disease. A medical diagnosis is normally critical to these kinds of cases, helping the plaintiff show that financial compensation is appropriate.
An accurate diagnosis is crucial to an asbestos case. The specifics of the disease are critical because they shape the value of the injury case.
When plaintiffs file asbestos lawsuits, defendants regularly offer settlements based on what’s known about the particular disease at issue. (The defendants in asbestos cases are often employers, asbestos manufacturers, or bankruptcy trust funds created to compensate claimants when the company has gone out of business.) In general, the settlement offers are lowest for mild asbestosis and highest for mesothelioma, although many factors always come into play.
Diagnosis goes straight to the extent of the plaintiff’s economic and non-economic losses ("damages"). Economic damages include medical bills and lost income. Non-economic damages include pain and suffering and loss of enjoyment of life. (Learn more about damages in an injury case.)
Because the disease is a cornerstone of an asbestos-related case, the defense frequently argues that the plaintiff doesn't actually have any disease, or that the plaintiff’s damages are the result of some other, unrelated condition. An undiagnosed disease or an inaccurate diagnosis makes it much easier for the defense to avoid paying the plaintiff. It's a good idea to see a doctor at the first sign of any asbestos-related health problems—to protect your health and any asbestos case you decide to file.
Laws called "statutes of limitations" set time limits on the right to file an asbestos lawsuit. Because asbestos-related diseases progress so gradually, there is often no clear date for the "onset of the injury." So, the date the person knew (or should have known in the eyes of the law) that the illness was related to asbestos is typically the start of the statutory time period. This date is often the date of diagnosis. If you wait too long after being diagnosed, you might be barred from pursuing a case, but an extension of the deadline might be possible if you didn't know (and couldn't have been expected to know) of the link between the illness and asbestos exposure.
A number of states (including California and Texas) have a specific statute of limitations for asbestos lawsuits. In other states the statute of limitations deadline for personal injury (or "tort") cases also applies to asbestos claims. Regardless of which of these time limits applies, the filing deadline in most states ranges from one to six years for a lawsuit over health problems caused by asbestos. For asbestos wrongful death lawsuits, a different statute of limitations applies (usually one to two years from the decedent's death). For details on how the statute of limitations affects your situation, talk to an asbestos lawyer.
Sometimes an asbestos-related disease is discovered through a routine physical examination when no (or few) symptoms are present. Other times a person comes to a doctor with persistent indications of an asbestos-related disease, such as shortness of breath. Because asbestos-related symptoms are common to many other conditions, testing is critical to the diagnosis.
The first step in testing is usually an X-ray or computed tomography (CT) scan. The radiologist who reviews the films or scans looks for indicators like characteristic scarring of the lungs and the presence of a tumor.
Doctors can confirm a diagnosis with a biopsy, which involves removing a small bit of tissue from a patient’s lungs and looking at it under a microscope to see if any asbestos fibers are present. A doctor who suspects malignancy will make sure that a biopsy is performed on the abnormal area.
Most lawyers will not start an asbestos lawsuit until they have confirmed that a possible client has an asbestos-related disease. Some attorneys will provide screening and arrange for testing like a physical examination and preliminary X-rays for potential clients who have a history of workplace exposure to asbestos. Other times attorneys will order medical records and existing X-rays, CTs, films, and pathology specimens from the person’s doctor or hospital and send the material to medical experts for evaluation.
If your doctor does not think you have an asbestos-related disease, but a lawyer's medical expert thinks you do, you can take the expert’s report to your own doctor for a follow-up exam, or seek a second opinion from a different doctor.
A lawyer who has decided to take your personal injury case based on evidence of asbestos exposure and examination of your medical records will determine which defendant(s) to sue and then file a "complaint" in court. The complaint is the legal document that starts the lawsuit and asks for damages from the defendant. (Note that a lawsuit doesn't always need to be filed, especially where a bankrupt asbestos defendant's liability is established and a claim "fund" is in place.)
Next, the case moves into the "discovery" phase, when both sides gather evidence. Your lawyer might need to order additional medical documentation for retained experts to review. Your lawyer's medical experts might also examine you.
Defendants are usually entitled to see whatever medical information the plaintiff’s lawyer has that’s relevant to the case. If you have a case, your lawyer will probably need to provide the defendants with a list of facilities where you've been examined or treated. The plaintiff’s lawyer usually hands over this kind of information as "answers to interrogatories," part of the discovery phase.
When the defense attorneys decide they want to look at specific medical records the plaintiff’s lawyer hasn’t already provided, the plaintiff often has to give authorization allowing the release of further medical information. Because of privacy regulations, each authorization must be specific to the facility, so the plaintiff might have to sign a lot of forms.
Sometimes the defense asks for medical information by issuing a subpoena to a facility. If they take this route, they have to notify the plaintiff’s attorney. If the request is for something inappropriate or irrelevant, the attorney can try to block the subpoena or review records first to protect the plaintiff’s privacy.
Normally, the defense can also have its own medical expert examine the plaintiff (this step is called an "independent medical examination"). The plaintiff’s attorney helps arrange such an exam and should protect the client from any improprieties, such as medical tests that aren’t related to the plaintiff’s claims.
If you have a case and it gets to the point of a deposition (or even trial), the defense will ask you about your health generally, your asbestos-related disease, your diagnosis, and your treatment. Sometimes plaintiffs’ deposition (and trial) answers differ from their written answers to interrogatories because of a mistake in memory. These small discrepancies are normal and extremely unlikely to affect the plaintiff’s case. If you have a case, you don't need to prove that your diagnosis is correct or even understand the medical details; expert witnesses will weigh in on those subjects.
If you’re considering filing an asbestos lawsuit, you should consult an attorney as soon as reasonably possible. An experienced lawyer will be able to explain the law as it applies to your circumstances. Learn more about how a lawyer prepares an asbestos-mesothelioma case.