The Anecdote

I recently acted for a chap, Mr X, who, with his wife, had undergone fertility treatment at a private clinic in the UK. He had provided some semen samples which were to be frozen for use in their treatment by ICSI (intra-cytoplasmic sperm injection). The treatment was successful in that it resulted in the birth of a live baby. The couple assumed that all of the frozen semen had been used up in their successful treatment and were not told anything to the contrary.

A couple of years later Mr and Mrs X decided that they wanted to try for another child. They decided to go to a different private fertility clinic which was more convenient for their home. When they were asked by their new treating Consultant about previous fertility treatment, they set out the history and the new Consultant asked them to obtain copies of their records from the first clinic. Mr and Mrs X requested a copy of their records from the first clinic. They received photocopied documents through the post. Unfortunately, the records sent were incomplete. In any event, the records gave no clue that the first clinic still held any of Mr X’s semen in storage.

There was therefore a need to obtain some further semen from Mr X. Unfortunately, his sperm count had dropped in the interval and it proved impossible to obtain ejaculate of any quality from him. Accordingly, Mr X consented to undergo the exquisitely painful procedure of fine needle testicular sperm aspiration. During the first attempt at this procedure, under local anaesthetic, Mr X’s agonising pain was such that his wife fainted and the procedure had to be abandoned. He remained in pain for some time afterwards, had time off work and found sitting very uncomfortable. A second testicular sperm aspiration was attempted, this time under general anaesthetic, but unfortunately no sperm of sufficient quality was obtained. Mr X was again in some pain following the procedure once the anaesthetic had worn off.

Mr and Mrs X were very distressed about the news that they could have no more children but decided to get on with their lives. Some 4 months after the conclusion of their treatment at the second clinic, they received by post, and totally out of the blue, an invoice from the first clinic for semen storage charges. Ignoring the first clinic’s cheek in invoicing patients (or, more cynically, customers) for charges they had never agreed to pay, this was the first time Mr and Mrs X had ever been told that some semen remained in storage at the first clinic.

Mr and Mrs X tried assisted conception once more and achieved a pregnancy, but tragically the baby could not survive to term.

Mr X subsequently brought a claim against both the first and second clinics for damages for pain and suffering as a result of the two unnecessary testicular sperm aspirations which he would not have had to undergo had they informed him/ascertained that his semen remained in storage at the first clinic. A settlement was reached in due course with the second clinic, but the first clinic continued to deny liability right up until trial on the apparent basis that the accepted duty to treat Mr and Mrs X with reasonable care and skill did not extend to:

(a) a duty to maintain their storage/laboratory records in reasonable order;

(b) a duty to comply with the HFEA Code of Practice; or

Expert opinion was to the effect that the first clinic was in breach of duty, but, notwithstanding this opinion, it was not until after my opening on day 1 of the trial that the first clinic finally agreed settlement terms.

In the case of Mr and Mrs X, there was a direct and obvious relationship and duty of care between them and the first clinic. What happens when the laboratory/storage warehouse is a third party?

The Law

In Farraj v King’s Healthcare NHS Trust [2006] EWHC 1228 (QB), the Claimant couple claimed damages for wrongful birth, alleging that the defendant hospital, which had carried out pre-natal DNA testing, had negligently failed to diagnose that their son would be born with a severe hereditary blood disease. They argued that, had the correct diagnosis been given, the pregnancy would have been terminated.

The hospital issued a Part 20 Claim against CSL, a private cytogenetics laboratory responsible for culturing the sample of tissue used by the hospital for the DNA testing. CSL had charged the hospital £80 for culturing the sample. There was no direct contact between the Claimants and CSL, nor did the Claimants know of CSL’s involvement at the time.

Mrs Justice Swift tried the preliminary issue of whether or not CSL owed a common law duty of care to the Claimants (the Claimants having applied to join CSL as D2). She considered the long line of well-known authorities on the test for existence of a duty of care, in particular Caparo v Dickman [1990] 2 AC 605, Hedley Byrne v Heller [1964] AC 465, Henderson v Merrett Syndicates [1995] 2 AC 145, Smith v Eric S Bush/Harris v Wyre Forest [1990] 1 AC 831 and White v Jones [1995] 2 AC 207, referring back where necessary to the wrongful birth authorities. She concluded that CSL did owe the Claimants a duty of care, finding that the lack of direct communication did not of itself mean that there was insufficient proximity to found a duty of care. The Judge further found that, whether the laboratory testing/culturing was to be carried out by a hospital employee or a third party, the Claimants’ expectation and reliance on the care and skill of the lab technician would have been the same.

Significantly, the Judge also found that CSL would have assumed that their fee of £80 would be passed on by the hospital to the Claimants. She found that CSL should have been aware that parents in the Claimants’ position would rely, whether directly or indirectly, on their skill and care. She did not accept CSL’s “floodgates” argument, anticipating that the numbers of claims against private laboratories would be limited in number, and seeing no reason why a private laboratory should be in any more advantageous position than a hospital laboratory. The essential elements of proximity, “fair, just and reasonable”, and foreseeability were made out, with a clear assumption of responsibility on the part of CSL.

It has to be said that the decision in Farraj is not surprising. It is hard to see how the laboratory was able to submit that a finding that it owed a duty of care to the Claimants would constitute a “radical extension” of case-law. The decision is entirely in line with the law on liability of third parties when they seek to profit from their area of expertise.

However, with the advent of ever greater “out-sourcing” (the government dislikes the word “privatisation” in the same sentence as the NHS) and use of private contractors by our healthcare providers, I am not sure that these types of claim will necessarily be limited in number in the future.