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The provision of immunotherapy treatment has been an ongoing issue in the context of asbestos claims for a number of years. This is a rapidly developing area with new treatments constantly coming to the market.
The important issue is for asbestos victims to have access to the treatment that they need to prolong their life, whilst ensuring that insurers can obtain an efficient mechanism of settlement and predictable treatment costs.
With the NHS now providing some immunotherapy treatment options, we consider the likely impact of future treatment on mesothelioma claims from a legal perspective.
Present practice
When immunotherapy treatment first featured as a head of loss, there were various disputes between the parties on the wording of court orders settling the claim. However, a settled practice has developed and despite NHS provision of certain treatments, we do not expect fundamental changes to the way these claims are dealt with by insurers.
The legal test for recoverability of alternative treatment costs remains a low one, as set out in Najib v John Laing Plc [2011]. Essentially, the threshold is surpassed where treatment is recommended by a doctor, be it a medico-legal expert or, as is more commonly the case, a treating physician. Furthermore, a claimant can always choose to recover private treatment irrespective of state provision.
Asbestos claims tend to settle with an agreement staying the claim for private treatment and allowing a preservation of all parties’ rights to bring or challenge a claim for treatment. This avoids the negotiation of complex funding arrangements or the establishment of expensive trusts, whilst negating the need for claimants to repeatedly apply to court for interim payments.
Whilst it important that claimants are not deprived of reasonable treatment, NHS provision of the most common immunotherapy treatment is likely to result in fewer claimants relying on treatment orders in the short-term.
However, with new treatments continually coming to the market and improvements to current drug combinations, we would expect that in the longer-term, greater numbers of asbestos victims will be eligible for immunotherapy treatment and will receive that treatment for longer. As such, whilst NHS provision may result in fewer claimants needing to rely on private treatment provisions now, there may be an increased reliance in the future.
Treatment costs
As with any new drugs, the initial treatment costs are high and as nivolumab and ipilimumab became increasingly used in a private setting across the UK, we have found large cost variances between providers.
We are hopeful that as nivolumab and ipilimumab are increasingly used as standard treatment in an NHS setting, the costs of the drugs generally decreases. Likewise, most treatment, even when undertaken privately, is administered through NHS infrastructure. We would therefore hope to see a reduction in the regional price variances, resulting in greater certainty for insurers when reserving for treatment costs.
In the long-term, we expect that other immunotherapy drugs will go through a similar process to nivolumab and ipilimumab, and more treatment options will be made available to asbestos victims via the NHS. However, given the stream of new treatments in development, insurers will continue to face claims for private treatment costs.
Generally speaking, we are seeing changes to the profile of claimants suffering with mesothelioma, with more white-collar workers with better pension provision. This will impact on the value of mesothelioma claims.
Pain, suffering and loss of amenity (PSLA)
The Judicial College Guidelines set general damages between £63,650 and £114,460 for these claims. However, it is uncommon to see damages awards from the court for less than £100,000. The most recent edition of the guidelines indicate the factors that influence the level of award to include reported cases in the period since the last review. It is clear immunotherapy will impact on those factors relevant to PSLA.
Whilst immunotherapy is not a cure, it is a treatment that may improve life expectancy and symptom severity for some. If a claimant’s pain is reduced and life quality is improved by effective treatment, then it might appear logical for PSLA awards to fall.
However, given the adverse side effects of treatment and the likely future increases to the JC Guidelines to reflect general economic inflation, we do not expect to see reductions to awards for PLSA.
Care
It is typical for a claimant to forgo expert care evidence and adopt a general care claim based on Rothwell v Chemical Insulating Co Limited [2008], that gives an inflation adjusted award of approximately £19,000. This approach is based on Smith LJ stating that the disease has a predictable deterioration and therefore, care should be similarly predictable.
Immunotherapy has the potential to throw out this long-held assumption, resulting in longer periods of less intensive care, but with the rapid deterioration towards the end of life.
This may result in increased care claims because the costs are spread over longer periods and involve periods where the side effects of treatment are acute. There may also be an increased use of expert evidence which results in departing from the broad assessment and in turn, increases legal spend. Should this be the case, insurers should be prepared to take a more forensic approach to care than has perhaps been the case previously.
Lost years and dependency
With increased life expectancy, more claims are likely to be settled in life on a lost years basis, rather than a dependency basis.
We would also expect to see a reduction in the length of any lost years or dependency claims as claimants benefit from increasingly effective treatment regimes.
Bereavement awards
If more claims are resolved during the claimants’ lifetime, fewer claims will be brought under the Fatal Accidents Act 1976 which includes the statutory bereavement award.
CRU
There is potential for repayable CRU to be accumulating for longer periods. The accumulation of repayable benefits will not be stopping on death, as frequently occurs during litigation.
Legal costs
The law and accepted practice between claimant and defendant advisors is now relatively settled and standard agreements exist in respect of immunotherapy. The hope therefore is that any changes to treatment should not generate excessive legal costs nor prevent settlement.
Comment
Immunotherapy treatment continues to develop rapidly. It is likely to be an increasingly important treatment which extends the life expectancy of those suffering with mesothelioma.
For insurers dealing with mesothelioma claims, they need to be alive to the medical developments in this area and the likely costs of funding treatment. The key takeaways are as follows:
- NHS provision on immunotherapy is a positive development with more routine use in mesothelioma cases.
- Claimants are less likely to rely on private treatment in the near term but may increasingly need to trigger agreements as more non-NHS treatment options become available.
- It is key for insurers to deal with treatment funding in a way that is efficient as possible to minimise the legal costs, whilst ensuring the claimant has access to the reasonable treatment, they require in order to ensure the best possible outcomes for them.
- As the efficacy of treatment improves, it will impact more acutely on other heads of loss such as PLSA , care and lost years/dependency, with more claims settling during the claimant’s life and with greater focus on future care needs.
United Kingdom