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Legal Professional Indemnity Insurance

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Do you own your own body?

It is no wonder that solicitors and other legal practitioners need to cover themselves with PI insurance; the issues they sometimes have to deal with can be exceedingly complex, as the following lawsuit shows.

It’s long been the position in law that property can’t be held within the human body, whether dead or alive. If someone were to own their own body, they’d be able to legally sell their organs or sell themselves into slavery or prostitution, both of which are illegal. Owning one’s own body would also mean someone could choose to destroy themselves through suicide, which is also illegal.

When it comes to medicine, however, this rule has been put under duress by changes resulting in people being able to claim that they own parts, or former parts, of their bodies, which is exactly what happened in the case of Yearworth v North Bristol NHS Trust, which overturned many legal precedents.

Negligent storage of bodily fluid

The was how the case unfolded. Before beginning treatment for chemotherapy for cancer, the claimants (a group of men) had left samples of their semen at a clinic after they were told that the chemotherapy they had to undergo could render them infertile for the rest of their lives. Unfortunately, the NHS Trust responsible for taking care of the samples neglected to monitor and replenish a coolant that was needed to prevent the sperm from being damaged and, as a result, the semen samples degraded to the point of becoming irreversibly damaged.

Personal property?

The legal dilemma for the court centred on the fact that the semen wasn’t a part of their bodies any more and therefore bringing a case for personal injury wasn’t possible. As explained above, it was anticipated that the law wouldn’t recognise seminal fluids as personal property and, in addition, that no contracts existed between the men and the Trust resulting in compensation through a contractual approach being highly unlikely to succeed.

Lawyers representing the men tried to put their case that the sperm samples were an integral part of the men’s bodies and the damage constituted personal injury. To highlight their point, they used a case in Germany where the highest German court had made the same decision. They also argued that the men suffered shock leading to ‘psychiatric harm’ when they learned that their sperm had been destroyed and, with that, their sole chance of fatherhood.

The Court of Appeal didn’t accept the personal injury claim with the judges expressing their disapproval for the verdict in the German case but, to the amazement of everyone, the court suggested that, as no contract existed, the lawyers representing the men might want to pursue the law of bailment. This is where someone gives their property to another for safe-keeping and, if that person doesn’t keep it safe, compensation can be claimed. In order for the law of bailment to work, the court would have to decide that the sperm could be considered as the men’s property – which is exactly what they did.

Reproductive injury?

Some legal experts have said that a new type of personal injury would have been better – i.e. reproductive injury. In this particular case, the court did rule that the samples of semen were indeed personal property due to the levels of control the claimants had over their bodily fluids. They clearly had possessed the power to decide what should happen to their sperm in the future (taking into account certain restrictions imposed by the Human Fertilisation and Embryo Act). The court deemed that the men’s relationship with their semen samples had nearly all the criteria necessary for ownership. The result was that the men could claim for psychiatric damage following on from the negligence that had damaged their personal property.

This case was so bizarre that it opened up a side of the law that had previously been tightly regulated. Have new clauses been added to medical indemnity insurance to cover the interesting new possibilities, I wonder?

 

 

 

Hound Dawg



Site last updated on Saturday, July 19, 2003