TRYING CASES INVOLVING REACTIVE AIRWAYS DYSFUNCTION SYNDROME (RADS)
Workers trapped in a warehouse fire inhale significant volumes of smoke. A man breathes in sulfur dioxide leaking from a railroad car and collapses and almost dies. An explosion at a factory forces the people inside to inhale chemicals, vapors and smoke. Firefighters and rescue workers in the World Trade Center buildings breathe in jet fuel and other noxious fumes during 9/11. These are all examples of cases where people can have a one-time exposure to an irritating substance and sustain a permanent injury known as Reactive Airways Dysfunction Syndrome, commonly referred to as “RADS.”
RADS is a specific medical condition first identified by Dr. Stuart Brooks and his colleagues in 1985 that describes the development of an asthma-like illness after a single exposure to high levels of an irritating vapor, gas, fume or smoke. RADS involves the development of respiratory symptoms within minutes or hours (within 24) after a single exposure to high concentrations of an irritant gas, fume, vapor, or smoke. These initial symptoms are followed by asthma-like conditions and airway hyper-responsiveness that persist for an extended period of time. Symptoms from RADS can last for months, years or even for a lifetime after a single traumatic exposure. In essence, a person has a single high level exposure to an irritating vapor, gas, fume or smoke that causes such person to develop chronic respiratory problems for an extended period following the exposure.
RADS Distinguished from Irritant Induced Asthma
RADS must be distinguished from a condition known as Irritant Induced Asthma (“IIA”). RADS and IIA are closely related forms of “non-allergic” asthma. Both RADS and IIA are caused by inhalation of an irritating substance (traditional asthma most people commonly think of is “allergic” asthma). Chlorine, ammonia, pesticides and sulfuric acid are common examples of such irritants, but hundreds more substances have been identified and probably hundreds more are yet to be recognized. Both RADS and IIA are characterized by signs and symptoms of asthma including, cough, wheezing, chest tightness, and breathlessness.
A major difference between RADS and IIA is that, in the case of RADS, symptoms of asthma appear no later than 24 hours after the initial exposure to the irritating substance. In the case of IIA, symptoms do not appear within 24 hours of the initial exposure, but, instead, appear after repeated exposures to an irritating substance (many times unknown or unrecognized by the person who is exposed) for several days, weeks, months, or years. When a single, high dose exposure is responsible for the chronic asthma-like illness, the condition is medically known as RADS. When the asthma results from multiple exposures to lower level doses of the irritant over time, the condition is termed IIA. Although defense lawyers attempt to downplay the significance of IIA by using terms such as “low dose RADS” to describe IIA, it should be noted that the effects of RADS and IIA are the same. In both cases, the client has chronic, sometimes permanent, asthma-like conditions that can be debilitating in nature. More important, it is not uncommon for RADS and IIA to be relatively treatment resistant.
Criteria for RADS and IIA Diagnosis
Dr. Stuart Brooks and his associates are generally credited with defining the criteria for the diagnosis of RADS (Brooks, et al., 1985). These investigators initially identified the following eight clinical criteria for the diagnosis of RADS:
- A documented absence of preceding respiratory complaints.
- The onset of symptoms occurred after a single specific exposure incident or accident.
- The exposure was to a gas, smoke, fume, or vapor, which was present in very high concentrations and had irritant qualities to its nature.
- The onset of symptoms occurs within 24 hours after the exposure and persists for at least three months.
- Symptoms simulate asthma with cough, wheezing, and dyspnea predominating.
- Pulmonary function tests may show airflow obstruction.
- Positive Methacholine Challenge Test [An indication of non-specific bronchial hyperresponsiveness.]
- Other types of pulmonary diseases ruled out.
These investigators broadened the original criteria for the diagnosis of RADS allowing the diagnosis to include persons who develop lower respiratory irritative symptoms (cough, wheeze, shortness of breath, or sputum production) within one week of exposure if they experienced eye or upper respiratory irritation (throat or nasal irritation) within 24 hours of initial exposure.
In order to qualify for a diagnosis of RADS, symptoms of asthma must begin during exposure or within 24 hours thereafter. If clinical symptoms do appear within 24 hours of the causal irritant exposure, the consequent asthma is referred to as RADS. If more than 24 hours of exposure to the causal irritant is required before asthma symptoms appear, the resulting asthma is termed IIA.
Pitfalls to Proving a RADS Case
There are many challenges and pitfalls to proving a RADS case, particularly if you have never handled such a case before. If you do not pay close attention to proving each of the elements outlined above, your case can easily be dissected by a skilled defense lawyer and, possibly, thrown out of court at the summary judgment stage. More important, at trial, if you tell the jury your client has RADS but the jury concludes that even one of the eight elements is lacking in proof, they may render a defendant’s verdict even though your client may have sustained a legitimate compensable injury. Care must be used not to over sell your case when dealing with terms such as RADS and IIA. Do not promise a “RADS” case to the jury if you cannot prove an actual RADS case.
A discussion of certain elements necessary for a diagnosis of RADs is warranted to demonstrate the various hurdles and defenses you may face in attempting to prove a RADS injury case. First, there must be a “documented absence of any preceding respiratory complaint” for you to present a true RADS case to a jury. If your client has pre-existing asthma or a pre-existing respiratory condition, he or she does not qualify for a diagnosis of RADS. The first element requires a documented absence of prior respiratory complaints and then the sudden development of asthma-like conditions within 24 hours of exposure to the irritating substance in question. In other words, if your client had prior asthma, he/she already had respiratory problems so he/she cannot truly be a RADS victim who developed breathing difficulties for the first time after a one time exposure to the offending chemical, vapor or gas. However, that does not necessarily mean that you should not be able to prove a compensable exacerbation of asthma or a pre-existing respiratory condition as a result of a single irritant event exposure like described in this article. Using the “egg shell” plaintiff doctrine, it would seem you should be able to recover for exacerbation of symptoms in a person with pre-existing asthma from a single traumatic exposure event. Nevertheless, you will need your expert doctor or toxicologist to be able to testify that your client sustained an exacerbation of a prior respiratory condition without using the medical term “RADS” to describe the injury. If your client has had a pre-existing respiratory condition and you term your client’s condition “RADS,” defense counsel will be able to easily shoot down such diagnosis and make your case look bad to the jury.
Another area of concern in a RADS case is making sure that you prove the exposure of your client was to a “very high concentration” of gas, smoke, fume or vapor. Many medical articles and journals describe the type of exposure necessary for a RADS injury as a “massive” exposure. Just because your client has been exposed to an irritating substance such as a chemical or smoke and develops some respiratory problems shortly after such exposure does not mean your client has actually developed RADS. Our bodies are constantly exposed to chemicals and irritants in our environment, yet are able to withstand many insults and recover back to normal without permanent or long term injuries in most cases. We have all inhaled smoke, vapors and noxious fumes from factories, vehicles and other man-created machines and events during our lives, yet most of us have not ended up with permanent respiratory problems as a result. It takes a “very high” or “massive” exposure to an offending substance for our respiratory systems to be permanently injured or affected for an extended period of time. It will be your burden to prove at trial that the exposure to your client was at a sufficiently high enough level or concentration to cause your client to have permanent or chronic breathing problems.
For example, the first RADS case I tried back when I was doing defense work was a person who alleged that she had sustained RADS as a result of exposure to a pesticide that had been applied at an office complex by the company I was representing. There was no question that, immediately after the company’s application of pesticide, the plaintiff developed what she perceived to be severe breathing problems and she sought immediate medical treatment for those problems. Within weeks, a board certified pulmonologist had diagnosed the plaintiff with RADS. The plaintiff had not worked and been under constant medical care and attention for pulmonary problems for a period of many years at the time the case went to trial.
One of the defenses I was able to assert at trial on behalf of the company who had applied the pesticide was that, as a matter of physics and chemical science, the plaintiff could not have been exposed to high enough levels or concentrations of the active ingredient in the pesticide (bifenthrin) for the plaintiff to have sustained a legitimate RADS injury. At trial, I was able to offer the testimony of a chemist expert who testified about the volatility and vapor pressure of bifenthrin (i.e. the ability of the chemical to get airborne so that it could be inhaled by the plaintiff). The expert chemist testified that it was scientifically impossible for enough of the bifenthrin to have vaporized up into the air and been inhaled by the plaintiff for her to have been exposed to a massive amount or high level of the bifenthrin for plaintiff to have sustained RADS. The case resulted in a defendant’s verdict and several of the jurors advised me that they did not believe that the plaintiff could have inhaled a sufficient amount of the pesticide for her to have sustained a permanent RADS injury. Be careful when you are trying your RADS case not to ignore the fact that it is your burden to prove your client had a “massive” or “high level” exposure to the offending chemical, vapor or gas to cause RADS. Unless the high level exposure to your client is very obvious (to everyone including the jury) without further proof, you will likely need an expert on the chemical, vapor, or gas involved who can testify that your client did in fact experience a high level or massive exposure to the irritating substance from the event in question. You may need an expert chemist, toxicologist, or certified industrial hygienist depending on the circumstances.
Another element required for a diagnosis of RADS is that the onset of the asthma-like symptom occurs within 24 hours of the exposure and that the symptoms persist for at least three months after the exposure. Be careful not to let your client’s doctor make a RADS diagnosis in medical records until your client’s symptoms have persisted for at least three months following the exposure. In the pesticide case discussed above, the plaintiff’s treating pulmonologist diagnosed the plaintiff with RADS just a few weeks following the plaintiff’s exposure to the pesticide in question. During deposition and at trial, I was able to cross examine the pulmonologist and force him to admit that he had “jumped the gun” in diagnosing the plaintiff with RADS just a few weeks after the plaintiff’s alleged exposure. As it turns out, the plaintiff in that case likely did not actually have RADS, but, instead, likely had another condition known as vocal cord dysfunction (which will be discussed below).
Because the doctor “jumped the gun” and made a premature diagnosis of RADS, one of the primary themes and defenses I was able to attack the pulmonologist with at trial was that the plaintiff’s doctor had misdiagnosed her condition as RADS and had been improperly treating her for RADS (using steroids and their consequent negative side effects) but that the doctor could not back down on his diagnosis once he finally realized that he had misdiagnosed the plaintiff with RADS. To do so, he would arguably open himself up to a malpractice claim from the plaintiff. Although you may not be able to control what your client’s treating doctor puts in his or her medical records, most competent medical doctors should know that a diagnosis of RADS requires at least three (3) months of persistent asthma-like conditions. You should certainly communicate with your client’s treating physician and any experts that you retain in the case to make sure that they understand all the necessary elements of RADS and are ready to handle any cross examination that comes their way regarding the basis for their diagnosis of RADS. Most doctors will use the term “suspected RADS” in their records until the requisite time (3 months) has elapsed with the patient having chronic asthma-like manifestations.
For there to be proper diagnosis of RADS and for you to properly prove your case you will also have to make sure your client’s treating physician and/or your expert physician have performed the appropriate medical tests in order to validate their opinions that your client has RADS. One of these tests is known as a pulmonary function test. A pulmonary function test is a breathing test performed by a pulmonologist or allergist to assess whether your client has the presence of airway obstruction or the presence of bronchial hyper-responsiveness. The patient breathes into a tube of a machine and the doctor will interpret the results to determine if the pulmonary function testing supports the diagnosis of RADS. However, it should be noted that airway obstruction may not always be identifiable on a pulmonary function test if the RADS/IIA is not clinically active at the time of testing. Clinical manifestations of asthma are known to wax and wane, and, unless the asthma is active at the time of testing, pulmonary function testing may not support the diagnosis of RADS/IIA. Nevertheless, even if a pulmonary function test does not specifically support a diagnosis of RADS, it does not necessarily rule out the possibility of your client having RADS. If pulmonary function testing does not support the diagnosis, your client may be able to undergo other types of testing that can be used to support a diagnosis of RADS/IIA.
There are two other tests that can be used to support the diagnosis of RADS. The doctor may choose to use a bronchodilator test or bronchoprovocation challenge test to support the diagnosis of RADS. In the bronchodilator test, the patient inhales a bronchodilator to see if he/she demonstrates a reversible airflow limitation. In the bronchoprovocation challenge test (typically a methacholine challenge test) the patient inhales methacholine or some similar substance at various levels to see if the patient has airway hyperresponsiveness and what level of exposure is required to demonstrate such a response. However, Dr. Brooks and others have cautioned that a methacholine challenge test should not be performed with individuals with significant impairment of lung function (Brooks, et al 1998). It will be up to your client’s treating doctors or your medical experts to determine the appropriate test to support their diagnosis of RADS. Nevertheless, make sure appropriate medical testing has been performed by a doctor to warrant a supportable diagnosis of RADS/IIA.
Yet another element of RADS is that “other pulmonary diseases be ruled out” as the cause of your client’s breathing problems. This is very important because defense counsel is sure to go through your client’s entire past history and medical records in detail in order to argue that your client had some pre-existing respiratory issues and/or that there is another explanation for your client’s symptoms. A differential diagnosis must be employed to rule out other possible causes. Diseases most often included in a differential diagnosis of RADS/IIA are vocal cord dysfunction (discussed below), gastro-esophageal reflux disease, hyper-sensitivity pneumonitis, adult-onset allergic asthma, acute tracheal bronchitis, and organic toxic dust syndrome (Branda, 1995). Be certain your doctor or expert has completed a thorough differential diagnosis to rule out other causes for your client’s symptoms before bringing your case.
The Case Killer – Vocal Cord Dysfunction
There is a sleeping giant and potential case killer in every RADS case, which is a condition known as vocal cord dysfunction (VCD). VCD is a condition that affects the vocal cords and is characterized by a closure of the vocal cords during periods of inhalation and sometimes exhalation. With VCD, the vocal cords act paradoxically and close when they should open and open when they should close. People with VCD have the sensation that they cannot breathe or catch their breath and VCD is quite often misdiagnosed as asthma or RADS. It is a medical adage that “all that wheezes is not asthma” (Project S.E.N.S.O.R. Winter 2010-2011). VDC is one of the primary conditions that must be considered and ruled in a differential diagnosis in any case involving RADS or IIA.
VCD is many times initially misdiagnosed as RADS. As an example, a woman developed recurring episodes of cough, dyspnea, and wheezing after an irritant exposure to glutaraldehyde and was initially diagnosed as RADS. However, once the woman was unresponsive to asthma therapy for an extended period, a laryngoscopy was performed on the woman that showed paradoxical abduction in the woman’s vocal cords. In other words, the woman had VCD rather than RADS, but that was only discovered after her asthma-like symptoms failed to respond to conventional asthma therapy for an extended period of time. (Scand J Work Space Environ 2005) VCD must be accounted for and ruled out to successfully pursue any RADS case. Flexible laryngoscopy is the gold standard for a diagnosis of VCD. Basically the doctor or speech pathologist sticks a flexible scope down into your client’s larynx and sees how the patient’s vocal cords are operating. If they are acting paradoxically, the patient’s perceived breathing problems and difficulty catching his/her breath may be due to VCD rather than RADS or asthma.
Although both RADS and VCD may give the patient similar asthma-like sensations, the causes of RADS and VCD are very different and the medical treatment for each is very different. RADS is a true respiratory condition that is many times treated with steroid therapy. However, ongoing use of steroids can lead to many problems and negative side effects including unintended weight gain, diabetes, and osteoporosis to name a few. VCD is not an actual respiratory condition but is a condition affecting the vocal cords typically associated with gastroesophageal reflux disease (GERD) or emotional issues, including panic, stress and anxiety. The proper treatment for VCD is not steroids, but, rather, medications to control the GERD or psychological counseling to control the anxiety.
If a patient is misdiagnosed with asthma or RADS but actually suffers from VCD, it is possible for the doctor to mistreat the patient with extended and unnecessary steroid treatments along with the adverse side effects steroids cause to the human body. That is exactly the case I believe occurred in the pesticide case described above. The plaintiff most likely had VCD rather than RADS but was treated for years with steroids by her pulmonologist who failed to recognize the plaintiff suffered from VCD rather than RADS. By the time her doctor recognized the plaintiff actually had VCD, rather than RADS, he had been mistreating her with steroids for years. However, at that point, he could not back down on his diagnosis of RADS because it would have opened him up to a medical malpractice claim by the plaintiff. After the verdict in that case, several of the jurors specifically told me that they felt the plaintiff had sued the wrong party (i.e. she should have sued the doctor who had misdiagnosed her condition as RADS rather than VCD). It is imperative that your doctor or expert consider and rule out VCD in order to pursue any case involving RADS/IIA.
Rads Cases Can Justify Significant Verdicts
Although RADS/IIA cases are complicated, expert heavy and expensive to pursue, they can justify and have resulted in significant jury verdicts. In the typical RADS case, your client will have been subjected to a significant traumatic event (i.e. a fire, explosion, etc.) where his/her body was likely violently insulted with a massive amount of an irritant chemical, vapor, gas or smoke. RADS symptoms always last for an extended period of time (minimum of three months) and many times they are treatment resistant and last for years or a lifetime. Moreover, “once RADS is established in a person, many times the person is then subject to bronchial spastic response from many and varied environmental stimuli including cigarette smoke, cold air, traffic fumes, and household chemicals such as hairsprays, perfumes and bleaches.” (Alberts & Do Pico 1996) Hence, RADS not only causes respiratory problems, it can cause the person to react to countless inescapable environmental irritants for extended periods or even for the rest of his/her life. RADS cases can and do justify significant jury awards.
As an example, I am representing a man who we contend has RADS (permanently) as a result of exposure sulfur dioxide that leaked from a railroad tank car while he was working in a railroad yard. As he was walking next to the railroad car, he suddenly started to smell a chemical odor, his eyes started to water and burn, and he started to choke and became unable to breathe. He attempted to run but was overcome by the gas and collapsed and was rushed to the hospital. After a near death experience, he now has ongoing breathing problems which he will likely have for the rest of his life. It was important to meet with his pulmonologist to be sure he could properly diagnose RADS in a way I could use at trial, and will be able to testify to the permanency of my client’s condition. The doctor indicated that he would need to perform a methacholine challenge test on my client to be able to testify his condition is permanent. We arranged to do that so that he can not only be absolute in his diagnosis of RADS, but also be able to testify that my client’s injury is permanent.
In addition to breathing problems, the sulfur dioxide damaged my client’s olfactory glands which are in the sinuses and control our sense of smell and taste. An otolaryngologist (ENT) will testify my client has lost more than 75% of his smell and taste. My client is also now sensitive to other things in the environment including cold air, cigarette smoke and fumes from perfumes and bleaches. As can be seen, RADS type injuries can dramatically and permanently impact a person’s life and can justify significant jury verdicts. Just be careful of the problems and potential defenses outlined above.