Settlement for Mesothelioma sufferer which includes costs of new immunotherapy drug

The Boyes Turner asbestos claims team, has recently settled a living mesothelioma case for £350,000. The case settled following a joint settlement meeting for £350,000 less than a week from the Assessment of Damages hearing due to take place at the Royal Courts of Justice in London.

Exposure

The claimant was exposed to asbestos during his apprenticeship as a bricklayer. He started his apprenticeship in 1968 with Boyd & Murley. He was exposed to asbestos working on contracts for Eton College, St. George Chapel Windsor Castle, a job near Windsor Station and working on workers accommodation for AWRE Aldermaston and AWRE Newbury. As he was not receiving enough experience as a bricklayer, in 1971 he moved to complete his apprenticeship for another local company J M Jones & Sons Limited. Here he was exposed to asbestos while working on jobs at Reading University and Bracknell Weather Centre. He completed his apprenticeship in 1972.

Assessment of the claim

When assessing the claimants exposure to asbestos although he had heavier exposure and a longer period of exposure at Boyd & Murley he also had significant exposure at J M Jones & Sons Limited.

Boyd & Murley was insured by BAI an insurance company that is no longer trading, the Financial Services Compensation Scheme was involved and there was a risk if J M Jones & Sons Limited was not also pursued in the proceedings that the claimant would only recover 90% of his damages. Although the claimant had heavier exposure and a longer period of exposure at Boyd & Murley he also had significant exposure at J M Jones & Sons Limited.

Proceedings were issued and served against both defendants Boyd & Murley and J M Jones Limited and judgment was obtained against both defendants.

Treatment

The interesting aspect of this case relates to treatment costs.

The claimant underwent a VATS biopsy and talc pleurodesis at St. Guy’s Hospital in London. Following those procedures, his diagnosis of epitheliod mesothelioma was confirmed. He then underwent a course of chemotherapy treatment which he completed in May 2016.

The claimant suffered serious adverse reactions to the chemotherapy treatment. He developed blood clots in his leg and chest necessitating an emergency admission to hospital followed by attendance at the thrombosis clinic twice a week and also blood thinning injections every day for six months. He also suffered with numbness in his feet and fingers and pains in his legs which remain. He suffered with conjunctivitis and still has problems with his eyes and nose, which run constantly. His hearing and memory were also affected.

The claimant was concerned about the limited treatment options available to him and so consulted Dr Jeremy Steele a consultant oncologist with a particular expertise in mesothelioma for further advice. His expert view was that the new immunotherapy drug Pembrolizumab represented the best next treatment option for him. The way in which Pembrolizumab works is as follows. The drug works by making the cancer highly visible to the patients own immune system (a key feature of malignant tumours (cancers) is that they become invisible to the patients defences, in particular the immune system). The patients own immune system then kills the cancer.

The difficulty in securing this treatment for the claimant is that currently Pembrolizumab is not approved by NICE in the treatment of patients with mesothelioma and is not available on the NHS. The cost of the treatment on a private basis was estimated at £75,000. This included 12 injections costing £6,000 each and three PET scans which need to be undertaken throughout the course of the treatment.  The claimant was very keen to have this treatment as in his opinion it was the best chance of prolonging his life.

The claimant was aged 63 at the time of diagnosis and he was still working full time at the time he fell ill.

The claimant’s schedule of loss was amended to include the private immunotherapy treatment. Initial offers were made by the defendants but it was clear that they were not including any offers in respect of the private immunotherapy treatment.

Limited scientific trials have been undertaken for Pembrolizumab in the treatment of mesothelioma. Two of the admission criteria on trials were considered in the claimant’s case. One was that the patient needed to have a positive expression of the PDL1 biomarker. An expert histopathologist Professor Sheaff carried out an assessment of the original slides. The result was that the tumour cells in the claimant’s biopsy did not demonstrate PDL1 biomarker expression. The second criteria was that the patient have a performance status of 0 or 1. The claimant had a performance status of 1.

Dr Jeremy Steele remained of the view that the anti-PDL1 immunotherapy remained a reasonable and rational treatment option for the claimant regardless of the PDL1 biomarker result. His view was supported by the published data on the use of anti-PDL1 immunotherapy (with Nivolumab, a very similar drug to Pembrolizumab) as a treatment for non-small cell lung cancer which showed that patients who were negative of PDL1 benefit from immunotherapy treatment.

The claimant’s case was prepared for an assessment of damages hearing and less than a week before the assessment of damages hearing the defendants invited the claimant to a joint settlement meeting where a successful settlement was negotiated. Included within the figure of £350,000 was £50,000 towards the private immunotherapy treatment. This will cover at least one full cycle for the claimant and half of a second cycle. The claimant instructed us to accept the offer. 

Comments

The client was happy with the settlement as he felt strongly about trying this new drug Pembrolizumab. His disease is currently stable and treatment will not be considered until the cancer starts to progress. Having undergone the VATS biopsy and Talc pleurodesis and the chemotherapy treatment, in his view Pembrolizumab represents the only other viable treatment option for him.  He was very keen to be compensated for the cost of this treatment as otherwise, paying for the testament would have significantly eaten into his compensation. He wishes to undergo this treatment as the treatment itself has far fewer serious side effects compared to chemotherapy treatment and if successful the Pembrolizumab will extend his life.