Mike Rawlinson QC and Jeremy Roussak, instructed by Ian Toft at Irwin Mitchell solicitors in Leeds, have achieved a settlement under which the negligent defendants have agreed to fund a new, expensive therapy for a claimant who has developed cancer. The funding will continue for as long as the treatment is considered appropriate by the claimant’s treating oncologist.

People exposed to asbestos may develop mesothelioma – cancer of the pleura (the lining of the chest) or peritoneum (the lining of the abdomen) – many years afterwards. It is a terrible disease and is usually rapidly fatal. Recent exciting developments in its treatment include the use of drugs to boost the sufferer’s immune system: immunotherapy. They are not suitable for all patients, they are not available on the NHS and they are very expensive indeed.

Before this agreement the parties were forced either (a) to guess at the future need for, type of and hence costs of immunotherapy if it hadn’t started at the time of settlement or (b) if it had started, to guess for how long it would be needed. Either way it was unlikely they would ever get it right. 

Now, so long as the claimant’s treating oncologist considers that there is a real chance that his patient may have some such therapy at some point in the future, this agreement can be put in place. Its effect is that the case can settle with no guessing as to future immunotherapy timing or cost. After the settlement, if the claimant never has Immunotherapy then he will receive no money towards it. If, however, he does need ever need immunotherapy the insurers will automatically fund it for as long as needed and at whatever cost. The precise mechanism is that we guesstimate what that annual cost would be at the time of settlement and put that in the agreement. If, when the therapy is needed, the actual cost is less then the insurer, if he has paid too much, gets back the excess: if the cost is more, the insurer will top up. 

The claimant gets complete peace of mind since the only doctor he has to talk to is his treating physician, not some medico-legal equivalent (instructed by either side), and he knows that the immunotherapy will be funded should he ever need it. The insurer wins because they can settle the claims they want to settle without needing to wait and see what will happen over immunotherapy; and also, they never have to make a ‘risk’ payment for such Immunotherapy where there is a chance it will never actually be needed.

Irwin Mitchell’s press release may be found here: http://tinyurl.com/merqcjbrit


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