Cancer patients win damages fight after broken hospital freezer destroys their sperm

Published on Wednesday 4 February 2009 21:02

SIX cancer patients whose sperm samples were lost when a hospital freezer broke down were yesterday told they could claim damages.

In a landmark decision, the Court of Appeal overturned a County Court judge who found the men had no claim against the NHS trust which had held their samples.

The three judges ruled that the sperm samples – given by the patients after they were warned that chemotherapy might damage their fertility – were the men's property and they could claim damages for the loss.

Lord Judge, the lord chief justice, the master of the rolls Sir Anthony Clarke and Lord Justice Wilson said the men could claim for psychiatric injury or mental distress against North Bristol NHS Trust.

Lord Judge said the "novel question" was whether the men could sue over the loss of semen which they had produced for possible later use and which the hospital had promised to freeze and store.

Lord Justice Wilson said after the men were diagnosed with cancer, they were asked if they wished to produce samples before the treatment to be stored for possible future use.

They all agreed, but in June 2003 the liquid nitrogen in storage tanks fell below the required level, and the semen thawed and was lost.

The men, none of whom wants to be named, believed their hopes of fathering children were dashed.

Some of the men have regained their fertility.

Lord Justice Wilson said the men had argued that the loss of the samples meant they would be likely to suffer a "severe adverse reaction" unless they were able to recover their fertility.

He said: "Their reaction to news of the loss lies at the heart of their claims.

"They each argue that in any event it is patently foreseeable that, already in a vulnerable condition, each would be likely to suffer – to put it at its lowest – a severe adverse reaction to the news that, unless he was likely to recover his natural fertility, his chance of becoming a father, represented by the storage of his sperm, had been lost."

The hospital trust denied liability, saying the sperm samples were not property in the legal sense and there could be no claim for damages.

The appeal judges agreed the loss was not a personal injury but went on to consider the hospital's role in storing the samples.

Lord Justice Wilson said the hospital unit had chosen to take and store the sperm and had given the men assurances that it had special skills to preserve it.

The hospital had broken that promise, he added.

The appeal judges said they were not disparaging the claims, but the amount of damages would be "relatively small".

Susan Seenan, of the patient organisation Infertility Network Scotland, said: "Although this is an isolated incident, the loss of sperm samples and therefore the opportunity to become a father will have had devastating consequences to the patients.

"The system of regulation in the UK means hospitals are required to adhere to very high standards, and when incidents like this happen they must be reported and investigated."

BACKGROUND

WHEN patients are told they have cancer, their fertility may be the last thing on their mind.

But increasingly doctors are having to discuss the effects of treatment on their future chances of conceiving a child.

This is particularly important among younger patients.

While many cancer treatments have no effect on fertility, chemotherapy and some types of radiotherapy and surgery may damage the testicles or ovaries and reduce the chances of having children.

It is possible to store men's sperm in case they become infertile during treatment.

For women, the best results are achieved by creating embryos using IVF for use after cancer treatment has finished.

But progress is now being made to allow eggs to be frozen as well as parts of the ovary.

While still in the early stages, these techniques could eventually improve the success rate for conception among women.