Blaming the Victim: Challenges of COPD Treatment and Subsequent Lawsuits

Chronic obstructive pulmonary disease (COPD) is a group of progressive respiratory conditions, including emphysema and chronic bronchitis, characterized by airflow obstruction and symptoms such as shortness of breath, chronic cough, and sputum production. A recent Centers for Disease Control and Prevention study on COPD in the United States found that COPD was more common among current smokers than former smokers or never smokers.

There is a stigma associated with COPD that, because people with COPD smoked, they were deserving of their fate. Many patients who suffer from COPD report feeling that others blame them for their condition. See: How Does Stigma Surrounding COPD Affect Research and Care?, Medical News Today (November 6, 2014).

The stigma surrounding smoking-related respiratory disease may influence the availability of treatment and care for COPD. Dr. Andrea Gershon, an assistant professor of medicine at the University of Toronto, Canada, stated that the stigma associated with COPD resulted in fewer resources being dedicated to research related to COPD. See: How Does Stigma Surrounding COPD Affect Research and Care?, Medical News Today (November 6, 2014). Fewer resources dedicated to COPD research results in a lower chance that researchers will discover new treatments and cures for COPD.

Even when research has clearly determined the best practice, stigma may reduce its implementation. For example, Dr. Gershon co-authored a study that concluded patients diagnosed with COPD did not receive appropriate pulmonary function testing to confirm the diagnosis. See: Gershon AS, Hwee J, Croxford R, et al. Patient and physician factors associated with pulmonary function testing for COPD: a population study. Chest. 2014 Feb;145(2):272-81. PMID: 24008897. Individuals with COPD use a disproportionate amount of health services for comorbid disease. See: Gershon AS, Mecredy GC, Guan J, et al. Quantifying comorbidity in individuals with COPD: a population study. Eur Respir J. 2015 Jan;45(1):51-9. PMID: 25142481. A large proportion of the considerable healthcare expenditure on COPD is attributable to the use of expensive urgent healthcare. See: Dickens C, Katon W, Blakemore A, et al. Complex interventions that reduce urgent care use in COPD: a systematic review with meta-regression. Respir Med. 2014 Mar;108(3):426-37. PMID: 23806286. Complex interventions for people with COPD may reduce the use of urgent care, such as education, exercise, and relaxation. However, doctors influenced by the stigma against COPD are less likely to take on complex interventions.

Just as it affects availability of treatment and care, the stigma surrounding smoking-related respiratory disease may influence the likelihood of success of the lawsuits brought by COPD sufferers. Jurors and judges, like doctors, may blame COPD sufferers for their condition. For example, in Storey v. Colvin, 2015 WL 2126985 (W.D.Ark., May 6, 2015) (not designated for publication), a man applied for disability insurance benefits (DIB) and supplemental security income (SSI) due to his COPD. The man had smoked one pack of cigarettes a day for thirty years.

The man’s applications were denied initially and on reconsideration. The man then requested an administrative hearing, which was held in front of an administrative law judge (ALJ). The ALJ found the man’s disorder of the back severe. However, the ALJ found the man’s COPD was non-severe, since it did not cause more than a minimal limitation in his ability to do basic work-like tasks. The ALJ concluded the man was not disabled, and that the man had the residual functional capacity to perform light work, except he could only occasionally climb, balance, stoop, kneel, crouch, or crawl.

The man filed suit in the United States District Court for the Western District of Arkansas seeking judicial review of the decision of the Commissioner of the Social Security Administration denying his claim for DIB and SSI. The magistrate judge for the United States District Court for the Western District of Arkansas recommended affirming the Commissioner’s denial of the man’s application for DIB and SSI and dismissing the man’s complaint with prejudice. The court held that substantial evidence supported the ALJ’s determination that the man’s COPD was not severe.

In making this recommendation, the magistrate explained that a severe impairment is defined as one that significantly limits the claimant’s physical or mental ability to do basic work activities. The impairment must result from anatomical, physiological, or psychological abnormalities that can be shown by medically accepted clinical and laboratory diagnostic techniques. A physical or mental impairment must be established by medical evidence consisting of signs, symptoms, and laboratory findings, not only by the claimant’s statement of symptoms. Alleged impairments may not be considered severe when they are stabilized by treatment and otherwise are generally unsupported by the medical record.

The magistrate noted that the ALJ determined the man’s COPD did not cause more than a minimal limitation on his ability to do basic work-like tasks. The ALJ based this determination on the man’s testimony regarding playing and singing in a band in venues where smoking occurred, the man’s testimony that he could walk a couple of blocks before stopping to catch his breath, and the medical records that showed the man denied shortness of breath or chest pain at his neurosurgical evaluation of chronic low back and right leg pain with a nurse practitioner. The magistrate noted that the record was devoid of pulmonary tests, environmental limitations, complaints of shortness of breath or asthmatic symptoms, dyspnea on exertion, cough, wheezing, sputum production, hemoptysis, and chest pain, which are used to determine the severity of COPD. The man’s COPD was mentioned in medical records as past medical history and during a follow-up appointment with a neurosurgeon evaluating a different medical condition along with a notation that he took Albuterol. The court reasoned that the man’s COPD must not have been as severe as he alleged because he denied shortness of breath or chest pain at his neurosurgical evaluation of chronic low back and right leg pain with a nurse practitioner and he denied shortness of breath when he presented at the emergency room due to abdominal pain. The court expected to see more medical evidence regarding the treatment of COPD if the impairment was severe. While the man indicated he used an Albuterol inhaler, there was no medical evidence submitted during the relevant time period prescribing an inhaler for his COPD. The neurosurgeon included emphysema in his review of the man’s symptoms at the follow-up appointment. However, the neurosurgeon did not note any issues with regard to heavy breathing, asthmatic symptoms and shortness of breath, or coughing during the examination. The court also noted that the man continued to smoke after being counseled on cessation.

The magistrate’s recommendation ignored the logical effects of the stigma against COPD sufferers and was influenced by the same stigma. Rather than recognizing that a patient seeking care for an unrelated medical issue may avoid sharing information about COPD to avoid the stigma that attaches to the diagnosis, the magistrate found the man’s reluctance to tell his medical care providers about his COPD was evidence that his COPD was mild. To see how illogical this reasoning is, imagine a judge finding a man’s reluctance to tell his medical care providers about his AIDS was evidence that the man’s AIDS was mild.

The magistrate may have been improperly influenced by the stigma against COPD sufferers. The magistrate noted that the man was a pack-a-day smoker. The magistrate expressly relied on the man’s continued smoking after being counseled to quit as evidence that his COPD was mild. Imagine a judge relying on a man’s continued sex with other men after being counseled to refrain as evidence that his AIDS was mild. Again, substituting another disease belies the bias. Essentially, it could be said the magistrate applied the doctrine of contributory negligence to a Social Security disability benefits determination.

By Sarah Kelman, JD, and the experts and editors at Medical Law Perspectives.

For more information about COPD, see the Scalpel Weekly News, April 6, 2015.

For a more detailed discussion of Storey v. Colvin, 2015 WL 2126985 (W.D.Ark., May 6, 2015), see the Scalpel Weekly News, May 18, 2015.

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See also Medical Law Perspectives April 2015 Report: COPD Liability Risks: When Taking a Breath Is Not Easy

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