Posted by Helen Childs, Partner
Mesothelioma claim settles for £840,000 – the importance of specialist legal and medical support
P was a retired former swimming pool and leisure centre manager who had been exposed to asbestos when he was first working in the West Midlands in the 1960’s and 70’s. Asbestos was widely used on the heating systems for swimming pools.
P became unwell at Christmas 2017 and was diagnosed with biphasic mesothelioma in February 2018. His treating doctor referred him on to a law firm in the Cotswolds, where his claim progressed very slowly. Despite lots of visits from the lawyer no letter of claim was sent to P’s previous employers until July, and no medical evidence was sought. P was very keen to access bespoke immunotherapy treatment as he and his family had researched the treatment options themselves. The solicitors and Mr P’s original respiratory physician were out of touch with the very promising developments in immunotherapy – they had no knowledge about the efficacy of immunotherapy treatment and thought it could only be accessed in a clinical trial setting. P carried out his own research and started treatment privately with specialist oncologist Dr Lester, close to home. He funded the initial treatment himself and his lawyers knew it was imperative that ongoing funding for treatment was secured by the autumn. Despite this very little progress was made and in Mid August the family approached Helen Childs of our specialist team for advice. P’s sons worked in the week so Helen visited the family on the next Saturday, and by Sunday evening the file had been requested from the previous solicitors, the defendants had been contacted and put on notice about the imminent issue of proceedings if liability was not admitted and the immunotherapy funding not agreed, and a brief medical report outlining the treatment received was requested (and received) from Dr Lester. A lump sum application was also made to the government.
The family were very stressed about the lack of progress with their previous law firm and the prospect of having to fund ongoing immunotherapy personally.
Court proceedings were commenced before the end of the month and within just over a month of being instructed Helen had secured judgment and a substantial interim payment and put in place the medical and care evidence needed to support the claim. The claim was particularly valuable, and was more valuable if concluded on behalf of the estate rather than by P personally. However he was keen to conclude it personally and Helen approached the defendants to arrange settlement discussions so an enhanced lifetime settlement could be arranged.
P did very well with his immunotherapy treatment and outlived his prognosis, although the treatment was eventually discontinued after about a year as there were some side effects. The defendants were warned that if no enhanced settlement could be agreed the assessment of damages – which was listed for November 2019 – would be adjourned so the estate could conclude the case. By the time the were able to meet with us (there were delays as they tried to obtain a contribution agreement from P’s subsequent employers) we were within a few weeks of the trial date and instead of discussing settlement on an enhanced lifetime basis they had to agree to discuss the claim as if it was already a fatal settlement.
P’s wife had a longstanding medical condition and P was her main carer, having taken early retirement to look after her. A significant future care claim was put forward, even though the defendants expert said a handful of hours a week was reasonable.
The settlement that was agreed provided for ongoing care for P’s wife, and reflected his considerable input into the household (he was skilled to tradesman standard in DIY and loved gardening) – and the childcare he and his wife used to provide regularly for the grandchildren but could no longer manage to do.
One unusual factor of the case was the claim for additional Inheritance Tax that would potentially become payable on a holiday home P had purchased for cash (he had built up a portfolio of shares as a result of being a very astute investor) on behalf of the family, including his sons, a couple of years before his diagnosis. He would have survived for 7 years but for his diagnosis with mesothelioma and if he had no IHT would have been due.
The claim did not settle at the settlement meeting, but it was settled a couple of weeks later. Shortly afterwards, sadly, P’s condition deteriorated and he died. He had wanted to ensure his family’s financial security – as he had always done – and was very pleased that he had been able to settle the claim personally and at full value.
P’s experience illustrates the importance of securing specialist advice – both legal and medical. P had complete faith in Dr Lester and the immunotherapy treatment he received meant he had hope for an enhanced life expectancy, and indeed he outlived his original prognosis by more than a year. The speedy issue of proceedings and the receipt of the interim payments (£200,000 was received) meant he and his family could stop worrying so much about the costs of the treatment he needed and the legal process itself.
It was a pleasure to have been able to act so speedily to help P and his family. The asbestos claims pre action protocol and the specialist asbestos judges in the High Court should work to ensure that claims can proceed very quickly, and for the early receipt of interim payments. However this was not the first time we had reviewed a file from P’s previous solicitors where matters had proceeded very slowly, and there was evidence they were not up to date with the current legal procedures and developments in medical treatment.