Mesothelioma and immunotherapy update
Statistics released by the Health and Safety Executive show that the death rate from mesothelioma continues to remain at around 2,500 people each year and the figure is not expected to start to reduce until at least 2020. It is predicted that by 2033 the figure will have dropped to 1,900 per year.
Whilst medical advances in treating mesothelioma are increasing life expectancy, with the use of radiotherapy and chemotherapy, there has been little hope of a cure being found. This however could be set to change with major developments occurring in the field of immunotherapy.
In November 2016, Kennedys participated in a seminar at the House of Lords to debate the progress being made into research around potential treatments. The main issue in discussion was immunotherapy, which is a combination of drug therapies used to specifically target and kill cancer cells. At the time it was very much in its infancy but since then there have been some positive developments and at a rapid rate.
Immunotherapy is still largely an experimental treatment for mesothelioma and not all sufferers are suitable for it. Some oncologists will recommend it as an option for their patients, subject to funding considerations. The treatment is not currently available on the NHS, pending further evidence in support of its effectiveness.
As a privately offered treatment it is expensive. One of the drug therapies available, Keytruda, costs approximately £100,000 per annum per person and as research progresses and more drugs are identified as being of potential benefit, it is likely that there will be an escalation of future treatment costs.
Claims for immunotherapy
In June 2018, the Royal Court of Justice Asbestos Users Group considered the court’s likely approach to immunotherapy treatment. It was widely accepted that where future treatment is recommended and in the absence of any other complicating factors, it would be funded by insurers.
In claims of this nature, there has long been a sticking point over the mechanism for funding with claimants and defendants unable to agree as to whether settlement should be by way of indemnity, trust fund or a periodical payment order (PPO). We believe the trust fund/indemnity approach is the more sensible as it provides insurers and claimants certainty. It also ensures claimants are protected whilst giving them autonomy. Whilst encouraged in other claim types, mesothelioma claimants tend to view PPOs as not providing finality to the litigation process, which is such an important aspect to the compensation process.
In an attempt to encourage greater collaboration and clarity, the Masters at the Royal Courts have committed to set up a working party to include claimant and defendant lawyers, counsel and medical experts. This group, of which Kennedys will be a part of, is anticipated to come together next year will develop an immunotherapy treatment protocol.
The protocol is still some way off, but it is clear that claimants have the right to seek immunotherapy if so advised by the treating oncologist. Not all patients however are eligible and there are contra-indications to the treatment, which will need to be carefully considered. Insurers and their insureds need to have the security that treatment is medically sanctioned. Should the treatment be appropriate then insurers need restrictions as to the scope of the treatment to be funded. This needs to be incorporated into agreements and orders to prevent an ‘open chequebook’ approach. Insurers also need the confidence that any payments made in advance of potential treatment will be refunded if a patient sadly dies during this period.
We are four years on from when we lobbied Parliament over the Mesothelioma Act 2014 to ensure that the proposed payment scheme was fit for purpose in making payment to some mesothelioma sufferers. Little has changed with these claims, albeit we are now facing a future where sufferers have hope that they will be able to prolong their life expectancy and that there could be a cure.
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