Mesothelioma damages must cover cost of new immunotherapy treatment

Model Tomlin order for settlement of future immunotherapy claims

asbestos fibresFiona Hendry, mesothelioma specialist at Birchall Blackburn Solicitors, discusses this revolutionary treatment for mesothelioma victims and the ways in which these claims can be settled. Fiona was advised by leading asbestos Counsel, Simon Kilvington QC, of Byrom Street Chambers in Manchester and Crown Office Row in London.

Immunotherapy is a potential life-extending treatment for victims of mesothelioma whose tumours have progressed after exhausting other forms of treatment. Although it is not effective for everyone, studies have shown that a significant proportion of patients derive some clinical benefit. It is currently impossible to predict in advance which patients will benefit, so that it is appropriate that, wherever the victim remains sufficiently well, an initial course of the treatment (usually over 12 weeks) is tried. Where there is a response, the treatment will be continued until the tumour progresses.

The immunotherapy drugs (pembrolizumab and nivolumab) are not currently available on the NHS for the treatment of mesothelioma. A 12 week course of treatment purchased privately costs in excess of £30,000, so that if the treatment works and is continued, the annual cost is in excess of £120,000. Where treatment can, in some cases, be effective for more than 2 years and perhaps much longer, the overall cost can be very high indeed.

It is vital then that a mesothelioma victim with a damages claim makes provision for the cost of the treatment in the settlement of his or her claim, whether treatment has commenced at the time of settlement or not. A lump sum settlement is unlikely to be attractive but the terms on which payment for future potential treatment is agreed can be difficult.

In a recent case, we agreed the terms of a Tomlin order to provide for future treatment in a form that may be useful for other cases. Counsel in the case, Simon Kilvington QC, said:

‘The important point in these cases is to give peace of mind to the Claimant that their treatment (and the associated costs) will be paid for. Where a Defendant is willing to agree to pay for that treatment, there is more than one way to formalise that agreement. I have prepared and agreed both periodical payment orders and Tomlin orders in these cases. The Tomlin order in this case represents a simple way to secure payment for all the future immunotherapy treatment that is advised by the Claimant’s treating oncologist; there is no second-guessing of the treating oncologist’s recommendations by a Defendant expert and the Claimant is free to choose who should be his treating doctor. In this particular case, it was appropriate to settle the other heads of loss on a lump sum basis, but that will not always be the case where treatment may prolong life considerably.’

Lawyers acting for Claimants in living claims can play a significant role in investigating and accessing the best treatment for their clients. As new treatments are developed, agreements will need to reflect these too.