10/11/05

Guest commentary By Sharon Kramer

As if government officials did not have enough to worry about in these days of allegations of rampant corruption, a new study finds they may be more susceptible to ?toxic mold? exposure than their constituents.

While the average citizens of New Orleans are being encouraged to return to the city with little warning of potential health hazards from breathing mold and the toxins they produce, Governor Kathleen Blanco has been residing outside of the Governor?s mansion.  The mansion has been undergoing an $800,000 renovation, $500,000 of which is for mold removal.

In 2003, Bryan Brown, who leads the consumer protection division for Kansas State Atty. Gen. Phill Kline, sued Kansas Republican Party Chairman Tim Shallenburger over the home Brown purchased from Shallenburger, which was reported to have mold.  Brown said things started falling apart in the house and that his children became ill because of mold. 

Mr. Brown has not taken any known stance in the state of Kansas to assist numerous average citizens claiming difficulty from mold.  This would support the current scientific evidence frequently used in mold litigation. Mold is only dangerous for government officials and their families. As further evidence of this phenomenon and according to a survey conducted by the National Insurance Affiliation, 99.9% of average citizens complaining of mold illnesses are reported to be liars and whiners.

After a $5.6 million dollar renovation of the South Carolina Governors Mansion three years earlier, First Lady Jenny Sanford said stachybotrys was causing health problems with her family. Stachybotrys is a known toxin producing mold. According to Mike Sponhour, spokesman for the South Carolina State Budget and Control Board which oversees maintenance on the building, ?We understand the concern the first lady has for the health of her family and children. We take that very seriously.  We?re committed to doing everything we can to fix the problem and make sure it doesn?t happen again.?  Like numerous other 'government officials? families from across the US, Governor Sanford?s family is apparently highly susceptible to mold induced illnesses.

Another government official who may suffer from susceptibility that the average citizen does not, is North Carolina Governor Mike Easley.  In August of this year, he and his family were forced to move from the governor?s mansion because of mold.  This is the second time in four years that the 114 year old mansion has been invaded by mold.  According to Secretary of Administration Gwynn Swinson, the governor and his family needed to clear out for health reasons.

A study done earlier this year was able to establish average citizens as those who may not suffer from the same mold illness susceptibility as analyzed in the government officials? study. Dr. Emil Bardana, President of the American College of Asthma, Allergy and Immunology and prolific expert witness in mold litigation, examined 50 mold cases that ended up court. The study by allergist Bardana concluded that no credible medical evidence has emerged to link mold exposure to the wide range of serious medical conditions associated with toxic mold syndrome which is a poisoning, not an allergy.

Although memory and immunological complications have been reported by many Americans who have been exposed to mold in prior flooded buildings, a WebMD Health Alert regarding toxic mold syndrome and issued to the public in September of this year quoted allergist Dr Bardana as saying, ?We know that mold can make people sick if they end up in the foods they eat.  But there is little evidence that inhaled environmental mold exposure can cause the serious illnesses that are attributed to it.?

This is a sentiment echoed by Dr. Stephen Redd of the CDC. Redd indicates there is little evidence of toxic mold causing illnesses, except when eaten or touched. He said, ?They won't produce these toxins at all times but under certain circumstances, like the nutrient supply is getting short or some environmental issue, they may start producing toxins and those can be dangerous if they're eaten or if they're touched. There's up to now not been evidence that airborne mold toxins have produced disease.? It is unclear if the health advisory by the CDC spokesman regarding no known ill health from inhaling mold toxins, applies to government officials and their families or only the public at large. 

After the implication of safety from these Health Alerts, sales of HasMat suits that are typically worn to protect from inhaling mold during remediation are anticipated to decline. ?Gosh, who knew we could breathe that stuff in all day long and it wouldn?t hurt us one bit besides a runny nose. I?m just buyin? me some gloves,? said Bubba Smith, owner of a brand new remediation company that provides expert advice to the citizens of New Orleans regarding mold clean up. Mr Smith was unable to remember the name of his new company.

Through the University of Mississippi, additional research is underway to determine if stress from Katrina plays any role in increasing the impact of mold on the average citizen.  It is unclear if the focus of this research is the stress from Katrina itself, or the stress of having the medical community and government health agencies not acknowledge and treat the physiological impacts of mold and mold toxin exposure in the public at large. Either way, precriptions of antidepressant medications for average citizens are anticipated to rise. Antifungals are thought to remain stable.

Although the government officials study was massive in the number observed to have required extensive mold remediation for the protection of their families that average citizens did not, including George W. Bush and the Governor of Mississippi, it was inconclusive in establishing if these government positions made officials more susceptible to mold illnesses than their constituents, or if their positions might actually have served to benefit the health of they and their families.

Bubba Smith, the National Insurance Affiliations and a study of gov?t officials mold susceptiblity are fictious.   Other information including direct quotes are real.

From the Website of the Center for Disease Control:

Mold Toxins  (Mycotoxins)

Molds can produce toxic substances called mycotoxins. Some mycotoxins cling to the surface of mold spores; others may be found within spores. More than 200  mycotoxins have been identified from common molds, and many more remain to be  identified. Some of the molds that are known to produce mycotoxins are commonly found in moisture-damaged buildings. Exposure pathways for mycotoxins can include inhalation, ingestion, or skin contact. Although some mycotoxins are well known to affect humans and have been shown to be responsible for human  health effects, for many mycotoxins, little information is available. 

Guest Commentary by Alexandra "Alex" Gonzalez

Mold in the workplace is a very common, debilitating phenomenon.  When people become environmentally ill, these cases, dubbed, "sick building" cases are premised upon different concerns. In a study quoted in 1996, the Lawrence Berkeley National Lab estimated that mold and poor indoor air quality causes 10,000 premature deaths and 150,000 to 300,000 lower respiratory tract infections each year. The lab also identified indoor air as a contributing factor to the development of asthma and to the spread of tuberculosis, influenza, and common colds. Occupational Health & Safety Letter (Business Publishers), Aug. 5, 1996, Vol. 26, No. 13. In 1976 the first recorded outbreak of Legionnaire's disease affected hundreds and caused about 20 deaths. Scientific and engineering studies have also purportedly linked modern construction techniques and materials to health problems for employees who work in enclosed structures. For example, 30 employees of a California publishing business were adversely affected by toxins given off by molds that grew in the carpet following a broken pipe in their office space. (Toxic Mold in an Office Setting, Masera; Occupational Health and Safety, Vol. 69, Issue 8, August 1, 2000).

The law of "sick building" has evolved as the workplace has evolved. While the workplace has become less dangerous, the questions and issues presented in workers' compensation litigation are more complex where chemical exposure is alleged in a "sick building" claim.

A multiplicity of Worker?s Comp cases have been filed in recent years, and each year has a different insurance system to fight these claims.  In many cases, these are just as distressing to prove as home insurance cases; sometimes worse.  Alleged corruption is rampant, and may physicians involved belong to an assumed occupational organization called the American College of Environmental and Occupational Medicine. If you read any of their papers, you can already see their stance on environmental health.

The IME

When you make a claim for insurance benefits, especially for disability insurance, the insurer may demand that you undergo what it calls an "Independent Medical Exam", sometimes called DME?s (Defense Medical Examinations); are one and the same, but which most experts prefer to call an "Insurer's Medical Exam", because the doctor is far from independent. Disabuse yourself of any idea that the examiner is there to help you. He is hired to destroy your case, e.g., to:

• Find some cause of your problem the insurer won't have to pay for,
• Deny the existence of your problem, basically deny mold using two specific documents that are questionably unethical,
• Find that your problem falls within some policy exclusion,
• Show that you're malingering, or disobeying medical advice,
• Deny the severity of your complaints, or sensitivities
• List all the activities you're capable of,
• Smear you by showing you lied or concealed other environmental exposures, etc.,
• Challenge the prognosis, especially with an IgG blood panel,
• Show that no further treatment is needed,
• Minimize the disability and inability to work,
• Criticize the treating doctor's care, or that mold didn?t make you sick,
• Find inconsistencies in your medical history
• Conduct a methacholine challenge test, or needle testing; both which your lawyer should object to as both are considered inhumane and barbaric testing methods for those who have suffered fungal exposure.  Your treating physician should write a letter attesting to this as it may exacerbate your condition. (Many IME physicians delight in conducting these two types of tests).

There are easy ways to prove your exposure, and there is mounting evidence of fungal exposure and the permanent neurological, pathological, immunological, and psychological damage that it can cause.  But do your research, because these physicians have been doing this for years, and responsible parties generally want to limit or mostly deny liability.

Only state-licensed persons can conduct a physical exam. Check out the examiner on the internet for licensing or disciplinary problems. Many of these IME doctors are rejects who can't hold a real job, or can't get one because of prior discipline. Object if you find any problems.

You must carefully prepare for this exam! Get and carefully review all the records from your treating doctor. If he won't or can't keep adequate records, go to a doctor who will. Make sure that nothing material is omitted. If possible, have your attorney grill you about the medical history, just as though you were going to a deposition.

They are entitled to only One such exam without a court order. The exam can't include any test or procedure which is painful, protracted or intrusive (generally including x-rays). The doctor must specify in advance the manner, conditions, scope, and nature of the examination. This means you should insist in advance on notification of anything that is going to be done that might be painful or invasive. methacholine challenge test, or needle testing; both which your lawyer should object to as both are considered inhumane and barbaric testing methods for those who have suffered fungal exposure.  Your treating physician should write a letter attesting to this as it may exacerbate your condition.

Establish reasonable ground rules for the IME. Confirm them in writing with defense counsel. If you can't agree, formally object, let the defendant move to compel, make your argument to the Court, and let it rule. Then be sure the examining doctor knows the ground rules. If he balks, don't go. See a sample letter below.

Take a witness to the IME with you (who could be your attorney), and have him/her audiotape the proceedings. If the doctor refuses to allow the witness or the taping, or there is any violation of the agreed upon or court-ordered conditions, refuse to proceed until they're complied with. If he refuses to comply, you may want to wait till the office closes or they call the cops to eject you, to prove that you were prepared to proceed, and it was the IME who refused.

Note that though the observer may monitor the exam, he may not participate in or disrupt it.

In states without rules about whether you can take a witness and tape recorder into an IME, the insurance company may try to prevent you from doing so, saying it is against their policy. You are not bound by any of their policies which are not part of your contract, and it is highly unlikely that the contract addresses this issue. Make it clear, in writing, that you will attend the IME, but with your witness and recorder.

Sign nothing except the sign-in sheet when you arrive. Don't fill out any forms, or sign any waivers. Written statements or answers to written interrogatories are not part of the IME. In particular, refuse to fill out any "history forms" the office staff may say are "routine".

Don't allow anyone but the agreed-upon doctor to conduct the exam. Allow no one else in the room except a nurse, your witness, and, if needed, an interpreter.

The questions and physical examination must be limited to the area which is "in controversy". If you're complaining of a knee injury, there is no need to do a pelvic exam. You may limit the length of the exam to a reasonable time. And you may refuse to discuss parts of your medical history which are irrelevant. (But see below.)

IME doctors are trained to observe patients even when the formal exam is not taking place, as getting on and off the examining table. They have been known to leave a dollar bill on the floor to try to catch a patient bending over to pick it up, but perhaps not mentioning the accompanying grimace of pain. Some will even observe the way you get in and out of your car and walk across the parking lot. Be aware.

Always be friendly and polite. Never express anger, but be firm. Don't tolerate any abuse.

Make sure the oral medical history you give the doctor is complete. If he cuts you off, tell him "Doctor, I have not finished my answer to your question. May I please complete my answer? Don't you want to know the truth?" If the doctor persists in unfairly cutting off material answers, inform him you will leave. But be sure that you're so right that a judge will agree with you. Do not answer questions dealing with fault if that is an issue in your case. You should answer only those questions that are directed to medical issues.

Remember: THIS IS NOT YOUR DOCTOR. Anything you tell this doctor will not be confidential and can be used by the insurer or HMO against you.

There is another school of thought which holds that you should give NO oral or written medical history to the examining doctor, since this amounts to a deposition without statutory safeguards. There is nothing in the Calif. statutes authorizing the doctor to take a medical history. If the IME request mentions history-taking, it should be formally objected to. If it doesn't, no history-taking should be allowed. Objection should also be made to liquidated excessive cancellation fees.

If something the doctor does causes pain, be sure to say so. Don't be afraid to say "Ouch!". The witness should record what was being done and the results. If he observes your gait, have the witness mark the number of steps and the condition of the floor.

If he measured grip, did he just have you squeeze his fingers, or did he use a dynamometer? If he measured symmetric muscle circumferences, did he measure up from the floor or a finger-tip to assure symmetric locations? Did he measure bending angles with a goniometer, or did he estimate them?

After the exam, revert to helpless patient mode, and ask the doctor for his prognosis, recommendations for future treatment, and criticisms of care provided so far. A refusal to answer will be useful if you go to a jury trial.

After the exam, pick up all the cards, brochures, etc. available in the doctors office. If other patients appear to be waiting for IMEs, talk to them, and get their names and phone numbers. They may be useful witnesses.

On the way out, have your witness serve the doctor with a subpoena for a deposition, a subpoena duces tecum for not only his report, but ALL his relevant records, notes, test results, x-rays, and the bill sent to the insurer, and a subpoena to appear at trial (with an on/call letter). This will save the trouble of trying to serve him later.

Schedule an appointment with your own doctor later that day, in case a rebuttal of any adverse findings is needed. Have him send for a copy of the IME's report as well, to check for errors and problems. If he's willing to be really proactive, he can phone the IME and ask if he or she had any good treatment ideas. If the reaction is very negative, he can call back and ask the office nurse for the IME's medical license. IME's like to wield power over patients; they do not like to see any witnesses.

SAMPLE PLAINTIFF'S RESPONSE LETTER TO DEMAND FOR DEFENSE MEDICAL EXAMINATION

Plaintiff will attend the defense medical examination on the following terms and conditions:

1. Plaintiff will be accompanied by counsel or other legal or medical representative to monitor the examination.
2. The examination will be audiotaped.
3. Plaintiff may bring a certified shorthand reporter to report the examination.
4. No one other than the plaintiff, plaintiff's representative, a court reporter, the defense medical examiner, and/or the defense examiner's employees will be present during the examination.
5. The examination will be limited to the medical conditions which are in controversy in this action.
6. Any persons assisting the defense medical examiner must be fully identified by name and title on the court reporter's records.
7. No diagnostic test which is painful, protracted, or intrusive will be permitted. Performance of such an examination by the defense medical examiner will be grounds for immediate termination of the examination.
8. Plaintiff will not orally relate medical history for portions of plaintiff's anatomy not directly in controversy in this action.
9. Plaintiff's history of the injury-producing event will be limited to the mechanism of injury.
10. Plaintiff will not sign or fill out any paperwork.
11. No radiological studies will be permitted. Plaintiff will sign limited authorizations permitting defendant to obtain existing radiological studies of any portion of plaintiff's anatomy in controversy in this law suit.
12. The total time for examination and applicable testing will not exceed ninety minutes. If any period of time exceeding thirty minutes goes by when plaintiff is not being actively examined by the defense examiner or the examiner's staff, the examination will terminate and plaintiff will depart.
13. No mental examination will be permitted.
14. Pursuant to Code of Civil Procedure ? 2032(h), demand is hereby made for all discoverable reports and writings generated by the defense medical examiner, including but not limited to a detailed written report setting forth the history, examination, findings, results of all tests conducted, impressions, diagnoses, prognoses, and conclusions of the examiner, along with all reports of prior examinations of plaintiff made by this examiner or any other defense examiner.