Mesothelioma Lung Cancer and Compensation Claims

Over time, mesothelioma has been confused with lung cancer since the majority of mesothelioma cases affect the lungs. In cases of asbestos-related lung cancer, the fibers from asbestos become lodged in the lung tissue causing irritation and scarring over time. This irritation and scarring can then also develop into tumors. But in the case of malignant mesothelioma, the asbestos fibers scar and lead to tumors in the lining of the lungs (the mesothelium).

Mesothelioma is also a form of lung cancer and may also first surface in other body parts like the lining of the heart or the abdominal cavity. Asbestos exposure can also result in the development of any type, and subset, of lung cancer including non-small cell lung cancer and small cell lung cancer. A significant percentage of patients diagnosed with asbestos-related lung cancer have a very strong history of exposure. However, it is important to note that minimal exposure can also result in the occurrence of the disease.

It is important to note that smoking does not cause mesothelioma. However, smoking can cause lung cancer. The link was identified in 1950 by Sir Richard Doll and Sir Austin Bradford Hill.  In the early 1970’s  tobacco companies were required to place health warnings on cigarette packs. The link between smoking and lung cancer and health warnings has led to allegations by the employers against their employees making a claim for asbestos exposure of contributory negligence where an asbestos exposed smoker contracts the condition.

There are no particular clinical signs for Lung cancer usually associated with particular causes and this leads to difficulty in diagnosis. However, records show that the total proportion of annual deaths which are linked to past asbestos exposures can be estimated from epidemiological information. Within a few years of diagnosis, lung cancer still remains basically fatal and so, just as in cases of mesothelioma, the number of annual deaths is almost equal to the annual occurrence of new cases.

Research suggests that currently, many lung cancer deaths are attributed to past exposure to asbestos. This implies that on the average, there are about 2,500 deaths resulting from asbestos-related lung cancer annually. This Estimation seems to be highly complicated by the fact that asbestos exposure and smoking collaborate significantly to increase the risk of lung cancer. This then translates into the fact that a lot of cases of lung cancer will result from both smoking and asbestos exposure, rather than by one of these factors.

In many studies of workers exposed to asbestos, asbestos-fiber Inhalation is currently proven to lead to an increased risk of lung cancer. In general therefore, longer exposure to asbestos puts an individual at higher risk of developing lung cancer. Most medical cases of asbestos-related lung disease in workers occurs at least after 15 years of first asbestos exposure.

Compensation for Asbestos Related Lung Disease

As a general guide, the courts will award the compensation to the worker according to the severity of the disease. The greater the suffering the more compensation will be awarded. Most compensation is awarded to the severe forms of the disease such as mesothelioma, lung cancer and asbestosis. Mesothelioma once diagnosed is a death sentence often within months. Asbestos related lung cancer and asbestosis often take a longer period before it if fatal. All asbestos claims including fatal compensation claims are handled by only our experienced GRADE A Solicitors with a minimum of 15 years experience in disease and asbestos related compensation payout claims.

General Compensation for Asbestos Lung Cancer Claims UK

• Mesothelioma claims after death, Serious disability leading to premature death; up to £105,000. Please note that some asbestos related lung cancers and asbestosis may also be awarded compensation at this level.
• Lung cancer, usually older person and fatal, symptoms not generally as painful as mesothelioma; to £86,000.
• Asbestosis, (pleural thickening of the lungs). Disability, shortness of breath, prolonged coughing, sleep disturbance, restriction of mobility. The top level award will be for victims where the disease is progressive, showing a significant impact on quality of life; to £95,000.
• Asbestosis and pleural thickening where Breathlessness, frequent use of inhaler, unable to tolerate smokey environment to £35,000.

The above figures are for general guidance. In addition to the above asbestos compensation claims payouts there other heads of damages that expert asbestos solicitor can claim on behalf of the victim and their family.

Below are a selection of real compensation for asbestos claims decided by UK Courts

McCarn v Secretary of State 2014 [Scottish Case]

Under the Damages (Scotland) Act 2011 s 4(3)(b) close family members of the deceased can claim compensation. In this case the father of the five adult children who were making a claim received £35,000 each for the death of their father who died from mesothelioma caused by exposure to asbestos whilst working for a Ship Building Company. Teh damages awarded reflected the fact that their mother had died of cancer earlier and as a result were all particularly close to their father, who as a very fit man before the disease too over. There is no similar law to compensate victims in England and Wales for bereavement compensation under the Fatal Accidents Act 1976.

Knauer v Ministry of Justice [2014]

The deceased was only 46 years old when she died of mesothelioma. She was employed as an administrator at a Dorset. The prison included many old buildings to she was required to go in the course of her job. Many of these buildings contained asbestos which resulted in her untimely death.

The general guidance for asbestos related compensation (see above) at the time the Court was deciding on the amount to be awarded was between £51,500 and £92,500.

In determining the amount, the court reflected on the pain and suffering she had to endure before death. Mesothelioma causing both severe pain and impairment of both function and quality of life. This may be of the pleura (the lung lining) or of the peritoneum (the lining of the abdominal cavity); the latter being typically more painful. There are a large number of factors which will affect the level of award within the bracket. These include but are not limited to duration of pain and suffering, extent and effects of invasive investigations, extent and effects of radical surgery, chemotherapy and radiotherapy, whether the mesothelioma is peritoneal or pleural, the extent to which the tumour has spread to encase the lungs and where other organs become involved causing additional pain and/or breathlessness, the level of the symptoms, domestic circumstances, age, level of activity and previous state of health.”

Symptoms of Asbestos Related Lung Cancer

All kinds of asbestos-related cancers and asbestos-related diseases take a considerable length of time to develop. Health effects like scarring and inflammation are caused by asbestos over the course of a decade or longer. The latency period of asbestos-related lung cancer is 15 – 35 years on the average.

The symptoms that first emerge for lung cancer are basically the same as in cases of other asbestos-related diseases. Some of the differences between these asbestos-related cancers and how they may manifest can be linked to where and how the tumors are formed. For instance, in mesothelioma, a sheath-like formation across the pleura is often created by the tumors, and also on other impacted areas, since cancerous cells are known to grow and spread very quickly. In Lung cancer however, tumors are often formed initially in more defined areas of the lung, though just like in mesothelioma, it also spreads and grows rather quickly in the body.

Due to the long latency period, Asbestos-related lung cancer is also quite difficult to detect. These early detection drawbacks can also result in wrong diagnosis, thereby delaying treatment.
Common symptoms associated with asbestos-related lung cancer include:

• Shortness of breath
• Persistent cough
• Chest pain
• Coughing up phlegm or sputum
• Fatigue
• Coughing up blood
• Unexplained weight loss
• Chronic tiredness
• Hoarseness
• Bone pain
• Frequent lung infections
• Headaches

Diagnosis of Lung Cancer

The process of diagnosis for asbestos-related lung cancer begins with a physical examination by a general practitioner and a move to describe the symptoms. Once a physical examination is concluded, the lungs and chest cavity will be examined using imaging screenings. Although X-rays may be done, a better picture of the lungs and any tumors can be shown by CT scans. Patients who have been exposed to asbestos in one way or the other must know that it is also important for to inform the doctor of this.
If an image reveals some kind of abnormal tissue, a doctor usually prescribes a biopsy as the next line of action. A biopsy is used to extract tissue for testing. The tissue will be examined under a microscope and then a pathologist will then use findings to determine if the cells are cancerous or benign. If cells are pronounced to be cancerous, it must then be ascertained if such cells point to lung cancer or mesothelioma. Once a lung cancer diagnosis has been made, it must be staged according to:

• The size of the tumor
• The number of tumors
• How far the cancer has spread.

Treatment of Lung Cancer

Research has shown that the adverse effects of asbestos on the lungs cannot be reversed and as such no treatment exists for asbestos-related lung cancer. Various Medical procedures can, however, slow the lung cancer’s development, provide relief for a patient’s symptoms, and even cancel out complications.
Several treatment options are available today for Patients with small-cell lung cancer. presently, four major types of treatment are utilized. They are:

• Surgery
• Targeted therapy.
• Radiation therapy
• Chemotherapy

The removal of the affected tissue using surgery, radiation or chemicals can slow down the progress of the cancer. Sometimes, doctors may combine two or more of these treatments in order to delay or prevent cancer-related complications. The adoption of these treatments may also extend a patient’s life expectancy by months or years.

Lung Cancer and Smoking

Smoking since the early 1970’s is well know to cause lung cancer.  Further back in time, exposure to asbestos may also cause serious lung problems including lung cancer.  However smoking cannot cause the asbestos condition mesothelioma.  It may cause other asbestos related diseases such as asbestosis and pleural thickening.

If there is a diagnosis of lung cancer and the claimant had smoked for many years, is this a bar to a claim for compensation for lung cancer where the claimant had also worked with asbestos at work?

The simple answer is that the claimant can still make a claim.  The court will look at the facts of the case and take into account the medical experts opinion on the damage caused by smoking and asbestos exposure.  The court will simply ask the question did the smoking contribute towards the risk of the lung cancer.  If so, the court may decide to reduce the compensation award by, say 25%.  Thus if the claimant was awarded £100,000 in compensatio, the Judge will then reduce that award by 25% to £75,000.  So smoking is not a bar to claimant compensation for asbesosts related lung cancer.

For further reading see the case of Badger v The Ministry of Defence where the claimant won the case but his compensation was reduced by 20%.  The rational behind this decision was expressed by the Judge as follows:

Once blame: ‘has been established, the court must take into account both the extent of the claimant’s responsibility for his injury and damage and the blameworthiness of his conduct as opposed to that of the defendant in deciding on the reduction in damages that is just and equitable. The decision as to the appropriate reduction in the claimant’s damages is to be dealt with in a broad, jury like and common sense way.’

See also the case of Blackmore law case decided in 2017 where the deceased claimant in that case has smoked since he was 14 years old about 20 cigarettes a day.  The judge held that employer should bear the lion’s share of blame.  This was appealed by the employers solicitors but the upshot of the appeal is that any reduction in compensation for lung cancer abestos claims is unlikley to be above 30%.