Six cancer patients, whose sperm was lost when the nitrogen in the freezer tanks it was being stored in at Bristol’s Southmead Hospital fell below required levels, have won their claim for damages against the North Bristol NHS Trust.
According to a recent Independent newspaper report, told their chemotherapy treatment might damage their fertility, the men provided semen samples for possible later use. However, during June 2003 the freezer tanks’ temperature fell sufficiently for the semen to thaw. The newspaper report on 5 February this year said the individuals then believed their hopes of fatherhood had been dashed. An original county court judgement ruled in the Trust’s favour, but on 4 February this year Court of Appeal judges ruled the sperm samples remained the men’s “property”, since the sperm was ejaculated “with a view to its being kept”. One judge said the men, already vulnerable when they heard of the tanks’ breakdown, had argued it was “patently foreseeable” they would suffer a severe adverse reaction to the news that, unless they regained their natural fertility, any chance of fatherhood had now been lost. Denying liability, the Trust argued the samples were not “property” in the legal sense, but the Appeal Court judges disagreed. The NHS Litigation Authority said the issue raised, “namely whether, legally, a living person owns viable tissue or substances from their body”, had never before been considered by a UK court. Following the freezer incident the hospital’s internal review deemed the problem “an avoidable incident”. The review also noted the absence of a remote alarm system, plus a fault with one of the freezer’s control panels, resulting in loss of local alarm, together with failure to apply good risk management practice. The Trust subsequently replaced the freezers, and installed a remote alarm, independent of the freezer controls, connected to an alarm panel in the main laboratory.” THE Trust and the NHSLA say they and their lawyers are now “carefully considering” the latest judgement.
