News & Events
Fertility treatment under increasing legal scrutiny
Updated 7th September 2009
By Ken Thomas, Partner and Medical Negligence lawyer at Harding Evans Solicitors.
Fertility treatment is not an area where large numbers of Clinical Negligence have arisen up until now. That is compared to traditional medical negligence “hotspots” such as A&E units and Maternity Departments where claims have been more frequent for many years.
Of course, given the number of IVF cycles undertaken annually - 37,000 women receive fertility treatment in Britain every year - mistakes are still relatively rare. There again, there may be a lot more “near misses” not all of which may necessarily be reported.
When fertility treatment errors arise they do tend to make major headlines. In another high profile case a white couple gave birth to black twins after a mix up at an English IVF unit. The error reportedly came to light only as the parents became aware that the skin tone of their children was different from their own. The Courts were asked to adjudicate on their parentage. Similarly, an administration error at a leading London hospital led to eggs from three women being fertilised with the wrong men’s sperm. Those treatments had to be abandoned as a result.
Sometimes errors arise (just as in other parts of the healthcare system) through a system failure rather than individual human error. For instance, the systems used to label sperm and eggs at some clinics have been criticised. Likewise, equipment failure can occur – in Bristol earlier this year six male patients whose sperm had been stored sued an NHS Trust after a freezer broke down and their sperm was destroyed. A Court decided that they had ownership of their sperm samples and could claim compensation for mental distress.
"These are cases that often arise from psychological rather than physical injury. The compensation that is awarded in such instances is lower than members of the public might anticipate. "
Valuing these claims is not a simple exercise. These are cases that often arise from psychological rather than physical injury. The compensation that is awarded in such instances is lower than members of the public might anticipate. Reports earlier this summer said that the South Wales couple in question had settled their case against Cardiff and Vale NHS Trust for £25,000.
Fertility treatment clearly straddles both private and NHS sectors. The Human Fertilisation and Embryology Authority has regulatory powers over clinics from both sectors. It can, for instance, impose conditions upon licences upon which these units operate, so as to limit the number of treatments undertaken if it feels too much work has been taken on.
This is one area of medicine – maternity care is another – where successful treatment routinely brings much joy and happiness but where, sadly, errors can have devastating consequences for the individuals involved. These are claims that would not have arisen a few decades ago when fertility treatment was unheard of. However as one Judge has commented in deciding one of the cases mentioned earlier, these cases raise interesting questions about “the ever expanding frontiers of medical science.”