The proposition that a defendant or insurer liable for terminal illness should pay reasonable treatment costs which have a prospect of improving the victim’s length or quality of life would appear to be an unlikely source of controversy. However, it is a testament to the enduring ability of mesothelioma claims to create forensic controversy that there is significant ongoing debate as to the best approach to a claim for immunotherapy costs.
The promising results of immunotherapy treatment have been a welcome success in the treatment of cancer and not just mesothelioma. It is likely that in the foreseeable future, additional immunotherapy treatments will be licensed on the NHS. In the meantime, the drugs are available on the private market but at a very considerable cost.
Innovative treatments in mesothelioma claims are not new, with claims for both chemotherapy and immunotherapy drugs at different points in time. The reasonable requirement for proof of efficacy before acceptance by NICE inevitably creates a situation in which drugs are being used but not available on the NHS. What perhaps has changed in recent months is that previously such claims were made in circumstances in which the victim was already undergoing private drug therapy or at least was being recommended for the same. There has now developed an approach of advancing immunotherapy claims in seemingly every living mesothelioma claim, often with no concrete evidence of the likelihood of the treatment. Therefore the claim is being advanced on what is not unfairly described as a wholly speculative basis. This is against a background where claimants’ solicitors appear to be advertising the ability to pursue such claims on their websites which inevitably is putting pressure on all firms advising claimants to offer the same. Medical reports are served simply describing the availability of such treatment and indicating that the claimant in question may ultimately be suitable for treatment.
Understandably, insurers have been reluctant to date to contest such a claim in court in particular given the emotive nature of the claim and the undoubted acceptance that if the claimant is suitable, with the treatment being recommended, then the cost of it will reasonably be paid by the defendant. However, it is reasonable in terms of assessing how such claims should be managed to consider what likely order a court could make should a claim be contested at assessment of damages. The following alternatives appear to be relevant:
- The court could make an order for immediate damages on the basis of the cost of future treatment. This would be on a contingent basis as reflected by the approach of Sir Robert Nelson in the case of XX v Whittington Hospitals