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June 12th 2012

Medical Negligence

The Devil is in the detail

The Devil is in the detail

I recently read that Welsh assembly member Mick Antoniw has proposed a Bill, which if enacted, would mean that the NHS in Wales could recover the costs of treating asbestos disease victims from those who exposed the victim to asbestos: http://www.bbc.co.uk/news/uk-wales-politics-18075291

I recently read that Welsh assembly member Mick Antoniw has proposed a Bill, which if enacted, would mean that the NHS in Wales could recover the costs of treating asbestos disease victims from those who exposed the victim to asbestos: http://www.bbc.co.uk/news/uk-wales-politics-18075291

No one can question Mr Antoniw’s good intentions or that protecting the resources of the overstretched NHS is  in our interests but the devil will be in the detail and specifically in how this Bill, if passed, would work in practice.

I’m worried that it will mean that asbestos sufferers and their families may go undercompensated. My fears are based upon the fact that many defendants and their insurers make ‘global offers’ to settle asbestos claims, these are offers which are not itemised, meaning it’s up to the claimant to interpret the composition of any offer. This is relevant because an asbestos case has several different heads of damage, for example pain, suffering and loss of amenity as well as out of pocket expenses, travel costs or private care costs. NHS costs could now become another head of damage to add to claims for asbestos victims treated by the Welsh NHS.

Consequently a recovery policy may mean that the Welsh NHS’s costs must be recovered first and in full from any agreed settlement or court award no matter how small that award is. Such a policy would leave the victim with what was left and having to shoulder any shortfall where the NHS’s costs take the lion’s share of an award or worse, with no compensation at all.

Of course, the policy may work in a different way and enable separate recovery from an employer rather than recovery from a victim’s compensation. This may be fairer meaning that sufferers receive the compensation they’re entitled to without deductions but, with the threat of potentially costly NHS action later, it may spur defendants to take an even more robust approach to defending asbestos claims than they already do.

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