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Boyes Turner solicitors specialise in asbestos disease claims such as pleural thickeningasbestosisasbestos induced lung cancer and mesothelioma, the latter two of which are fatal diseases.

The cause of death

Following any death where there is a suspicion that an industrial disease may have caused or contributed to the persons passing, the Coroners Court may decide to have a post mortem carried out.  The Coroners decision is often upsetting to family members of the deceased person as often they feel their loved ones body “is going to be cut up on a cold mortuary slab”, a not unfamiliar comment that we often hear at Boyes Turner. It is understandable how loved ones can feel this way.

However, the post mortem is requested for a reason and the result will be useful for a Coroner when making his final verdict.

The verdict can also be extremely useful for family members considering pursuing a legal claim for compensation in relation to their loved ones asbestos exposure.

The post mortem

During a post mortem examination, where asbestos exposure is suspected, the Pathologist will remove a few very small samples of tissue from the deceased’s lung. These samples are then tested for evidence of asbestos fibres.

Once tissue sampling has been conducted the Coroner will then ask the deceased’s family whether they want the tissue samples retained or disposed of.

What to do with the tissue samples

Family members understandably will nearly always tell the Coroner to dispose of all tissue samples taken from their loved one.

However, if the deceased’s estate are considering a legal claim for compensation then we would strongly advise that the tissue samples are retained.

Family members need not worry that they will be expected to take these tissue samples home for safe keeping, the pathologist will either retain them or send them to the deceased’s hospital for safe keeping.

Why keep these tissue samples?

The tissue sampling conducted by a Coroner appointed pathologist is different to that conducted by a histopathologist in a legal claim.

A Coroner appointed pathologist is simply attempting to confirm that the deceased had asbestos exposure which may have contributed to the cause of death.

A histopathologist, in the event of a legal claim, will conduct more extensive tests on the tissue sample to ascertain the degree of asbestos exposure suffered by the deceased. They will also consider the level of respiratory disability suffered by the deceased and whether, on the balance of probabilities, the asbestos exposure caused the deceased’s passing.

In short, the privately appointed histopathologist will conduct a more thorough, and more case-specific, testing of the tissue samples.

The risk of not retaining the tissue samples

If a legal claim is to be pursued and the tissue samples are not retained then the defendant may claim a prejudice in defending the claim.  This is because the defendant will argue that it did not have the opportunity to examine all of the evidence available to it and that vital evidence was purposefully destroyed by the claimant.

This is an argument that the Courts are becoming more sympathetic to.

We have also noticed that, more recently, Coroners are now putting an express statement on tissue disposal consent forms warning people not to dispose of tissue samples if a legal claim is to be pursued for an industrial disease. This removes any opportunity for a claimant to claim ignorance of the need to retain tissue samples and also highlights the fact that the Courts may be sympathetic to a defendants claim of prejudice.

Our advice

Our advice is quite simply to retain any tissue samples taken from the deceased if a legal claim is to be pursued. This will remove any risk of prejudice being claimed by a defendant.

If a legal claim is not pursued then the Coroner can be advised at a later date to dispose of the tissue samples.