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Asbestos bill raises ethics questions

2 doctors quit group over lobbying, endorsement

Monday, May 1, 2000

By CAROL SMITH Mail Author
SEATTLE POST-INTELLIGENCER REPORTER

Two prominent doctors have resigned from the American College of Chest Physicians after raising questions about whether the organization went behind the backs of its members to endorse controversial legislation backed by the asbestos industry.

The resignations offer a rare glimpse of how lobbying works in the medical community, which is usually considered immune from the pressures of special-interest groups.

The Fairness in Asbestos Compensation Act, an industry-backed bill designed to streamline the compensation process for asbestos victims, has been approved by the House Judiciary Committee and is awaiting floor debate in the House.

  UNCIVIL ACTION: Asbestos leaves a deadly legacy -- a P-I special report
Senate backers have said they will not introduce a Senate version of the bill this session. The bill, or a reincarnation of it, is expected to remain a political hot button through the November elections because of its implications for tort reform.

Getting endorsement from ACCP was a coup for the bill's backers, which have trumpeted it as proof the bill is good for patients and have used it as leverage to try to get other physician groups to support the bill.

But opponents, including doctors who treat asbestos-exposed patients, believe the physician group's endorsement was secured indirectly by GAF Corp., a company with giant asbestos liabilities that stands to benefit if the legislation passes. They believe the medical criteria are worded to exclude many patients and that it amounts to a bailout for the asbestos industry.

"We consider this a fairly significant ethical breach on the part of ACCP," said Frank Clemente, director of Public Citizen Congress Watch, a non-profit watchdog group that opposes the legislation.

"The ACCP did not follow any kind of peer review process to come to this conclusion," he said.

The two doctors quit the ACCP after the disclosure that Ray Cotton, a paid lobbyist for the physician group, was registered at the same time as a paid lobbyist for GAF Corp., a major backer of the legislation.

"This is important. This affects the fundamental integrity of the institution," said Dr. Michael Harbut, former chairman of the occupational and environmental health section of the ACCP and an expert in the treatment of asbestos disease.

Dr. Tee Guidotti, professor of occupational and environmental medicine at George Washington University, sent a letter to executives of the organization to say he was not renewing his membership because of the way the group handled the endorsement.

In Harbut's letter resigning from the group of 15,000 chest physicians, he complained that the group's Board of Regents made the endorsement without consulting members of his section who treat asbestos disease.

Harbut's letter said: "The staff and leadership of the ACCP has constructed a fire wall built of asbestos to protect whatever it is they are protecting. There is no interest in ethical behavior. There is no interest in organizational responsibility. There is no interest in medical science. There is no interest in helping patients with asbestos-related disease beyond the proposed law written by an asbestos company attorney."

Cotton, who has been the outside counsel for ACCP for more than 20 years, said he was listed by mistake as a GAF lobbyist and that he never lobbied on behalf of GAF.

"I did almost nothing on this bill," he said, adding what he did do was on behalf of ACCP.

But lobbying disclosure documents filed with the House of Representatives and obtained by the Seattle Post-Intelligencer show GAF Corp. paid Cotton's law firm, Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, a total of $340,000 in 1999 to lobby in favor of the legislation. Along with Cotton, the firm listed five other lobbyists assigned to GAF in its August 1999 and February disclosure forms.

In addition to Cotton, the firm's documents listed J. Edward Fox and Tracey Moorhead as lobbyists for ACCP and GAF. Both have left the firm and could not be reached for comment.

One day after Cotton's dual listing was disclosed in Congressional Quarterly Daily Monitor, a Washington, D.C., report on Congress, the firm filed an amended report withdrawing his registration as a GAF lobbyist, and claimed it had made a mistake and that Cotton was "incorrectly listed" on the August and February forms.

The amended filing did not change the listings for Fox and Moorhead, or the amount of money the firm received from GAF.

Cotton said the only lobbying he did on this issue was for ACCP and that he got involved in the asbestos legislation issue only after ACCP had already taken a position on the bill.

"I carry the ball after they give it to me," he said.

But Dr. Edward Rosenow, a professor emeritus from the Mayo Clinic in Rochester, Minn., and a past president of ACCP, said he was asked last summer by Cotton to testify about the legislation before the House Judiciary Committee.

"Mr. Cotton found out about this bipartisan legislation and that Congress was looking for medical group support," said Rosenow, who admitted he did not know at the time that Cotton was registered as a lobbyist for GAF Corp. "We (he and another past president of ACCP) looked it over very carefully and agreed with the principles of the legislation. We felt it's a win-win for patients."

Cotton denied that he asked Rosenow to testify. "If you were told otherwise, it's just in error."

According to the American Bar Association's rules on ethics, an attorney must disclose to his client if he or his firm is representing another client on the same issue.

In July, Rosenow and two other physicians associated with ACCP submitted written testimony to the Judiciary Committee in support of the medical criteria in the legislation. Their testimony was made before ACCP had taken an official position through its Board of Regents.

"None of those were official college statements," said Cotton, who was at the July hearing.

But Rosenow, who was not compensated for his testimony, said he was acting on ACCP's behalf when he submitted his statement. "It was all done strictly for ACCP," Rosenow said of his testimony.

Rosenow admits that he has not seen a large number of patients exposed to asbestos and that he does not consider himself an expert in asbestos-related diseases.

"That's one of my advantages," he said. "I'm not influenced by too deep of experience. I know a lot by reading. I feel I can be more unbiased than if I'd seen a lot of (disease) from industry."

Rosenow says he relied in part on the opinion of a longtime friend and colleague, Dr. Hans Weill. Rosenow said Weill shared unpublished data with him that showed that many patients exposed to asbestos are never impaired.

Weill has a long history as an expert witness for asbestos companies and was formerly a medical consultant to the Asbestos Information Association, an industry trade organization.

"Hans is retired and hadn't gotten around to publishing (the data) yet," Rosenow said.

When Harbut raised questions about the college's endorsement of the criteria, Rosenow wrote to him:

"Finally, what convinced me almost as much as anything was when Hans Weill came out strongly in favor of this. I have known Hans as a good friend for many years and have great respect for his expertise in asbestosis, and if he says this bill is the right thing to do, that was good enough for me."

Rosenow and Dr. Robert Johnson, who also testified at the July hearing, made a presentation on the bill to the Public Affairs Committee of ACCP in November. In December, the ACCP acted to officially endorse the medical criteria in the legislation.

Since then, Rosenow and Cotton have tried to solicit support for the bill from other medical groups, including the American College of Physicians and the American Medical Association. Cotton confirmed that he has spoken with other doctors' groups in the spirit of sharing information about the bill and ACCP's position on it.

"That's my job," he said.

In December, Rosenow appeared before the American Medical Association's Council on Legislation to discuss the bill. In a follow-up letter, Rosenow urged the council to recommend the AMA's support of the bill.

A spokesman said last week that the AMA had not taken an official position on the bill and was unlikely to act before June.

Guidotti of George Washington University said, "I was quite nonplused and disturbed that the college had taken a position without consulting those of us with an interest in the subject and well-established in the field.

"Everything has been extremely vague," he said. "In a professional organization, vagueness is almost always a very bad sign. It should be accountable, transparent to the members."

Alvin Lever, chief executive officer for ACCP, initially refused to answer a reporter's questions about the process and said it was a private matter.

In a subsequent letter from the ACCP's law firm in response to questions posed by the P-I, the firm stated:

"The college became involved with (the asbestos legislation) because the U.S. Supreme Court twice has stated that it was the responsibility of Congress to legislate a solution to the very large backlog of asbestos cases. Since the patient is and always has been a principal focus of the college, the position of the college was and is that efforts should be made to assure that patients with impairment from asbestos should be able to recover appropriate compensation with all due speed. The position of the college also is that patients should be prioritized by severity of illness."

Harbut, who has testified on behalf of his patients in asbestos cases and who has been an outspoken critic of the medical criteria in the legislation, said the college normally uses a peer-review process before adopting medical guidelines and diagnostic criteria for chest diseases.

Harbut resigned abruptly several weeks ago rather than sign a newly drafted ethics statement that would have precluded him from using his ACCP title when publicly disagreeing with the ACCP's official position.

"It amounted to a gag order," Harbut said.

The ethics statement, which was sent to all members of the ACCP, had been under development for several years, Lever said, adding that Harbut was the only one who refused to sign it.

But Guidotti, too, questioned the way the ACCP handled the endorsement process.

Professional organizations "exist in large part to maintain ethical practices," Guidotti said. "When things start getting murky, it's very dangerous. This has been a peculiar endorsement with a strange history."

P-I reporter Carol Smith can be reached at 206-448-8070 or carolsmith@seattle-pi.com

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